The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID HOLT, : CIVIL ACTION NO. 1:18-CV-01272
Plaintiff, :
v. : (WILSON, J.)
: (SAPORITO, M.J.)
COMMONWEALTH OF :
PENNSYLVANIA, et al.,
Defendant.
DAVID HOLT, I, : CIVIL ACTION NO. 1:18-CV-02448
Plaintiff,
Vv. (WILSON, J.)
(SAPORITO, M.J.)
COMMONWEALTH OF :
PENNSYLVANIA, et al., :
Defendant.
MEMORANDUM
The plaintiff, a retired Pennsylvania state police sergeant, alleges
that he was denied promotions to Lieutenant and Captain on numerous
occasions because of his race and opposing race discrimination by the
Pennsylvania State Police. He initiated this action in the United States
District Court for the Eastern District of Pennsylvania, and it was later
transferred to this court. His amended complaint in Case No. 18-cv-1272,
filed on September 14, 2017, sets forth five causes of action: (1) First
Amendment retaliation under 42 U.S.C. § 1983; (2) race discrimination
under § 1983; (3) employment discrimination/retaliation under Title VII,
42 U.S.C. § 2000e; (4) employment discrimination/hostile work
environment, under Title VI; and (5) employment
discrimination/retaliation under the Pennsylvania Human Relations Act
(“PHRA”), 43 P.S. § 951 et seq., Counts III and IV were dismissed against
the individual defendants. (Case No. 18-cv-1272 Doc. 19; Doc. 20.)
Counts I and IT brought against the Commonwealth and the PSP were
dismissed. Ud.) Plaintiff's PHRA claim (Count V) as alleged against the
Commonwealth and the PSP was dismissed. (Id.)
The plaintiff's complaint in Case No. 18-cv-2448 filed on December
28, 2018, sets forth five causes of action: (1) First and Fourteenth
Amendment retaliation under 42 U.S.C. §§1983, 1985; (2) race
discrimination under 42 U.S.C. §1983; (8) employment
discrimination/retaliation under Title VII, 42 U.S.C. §2000e; (4)
employment discrimination/hostile work environment under Title VII:
and (5) employment discrimination/retaliation under the PHRA.
The parties are involved in discovery and a dispute arose over
taking depositions of the following individuals: (1) Robert Evanchick, a
defendant and the current Pennsylvania state police commissioner; (2)
Frank Noonan, a dismissed party-defendant in both actions and a former
Pennsylvania state police commissioner; (3) Tyree Blocker, a named
defendant in Case No. 18-cv-2448, a dismissed party defendant in Case
No. 18-cv-1272, and a former Pennsylvania state police commissioner;
and (4) Marcus Brown, a named defendant in Case No. 18-cv-1272 only,
a former Pennsylvania state police commissioner, and the current
director of the Pennsylvania Department of Homeland Security.
This matter was previously assigned to the undersigned on the
Same issue in Case No. 18-cv2448 which related to depositions of the
defendants. (Doc.15). There, and after a telephone conference with
counsel, it was agreed that the defendants’ depositions would take place
by October 11, 2019. We entered an order to that effect. (Doc. 20).
The current dispute (Case No. 18-cv-1272 Doc. 50; Case No. 18-cv-
2448 Doc. 25) was assigned to the undersigned for resolution. We held a
telephone conference with counsel on December 23, 2019. During the
conference, defense counsel sought a protective order under the high-
ranking official doctrine as a bar to taking the depositions. We directed
the parties to submit memoranda on this issue which we received. (Case
No. 18-cv-1272 Doc. 62; Doc. 63; Case No. 18-cv-2448 Doc. 37; Doc. 38.)
The issue is ripe for a decision.
I. Legal Standards
The parties may take ten depositions without leave of the court or
a stipulation of the parties. Fed. R. Civ. P. 30(a)(1) and (2)(A)(i). Ifa
party seeks additional depositions without the consent of the other party,
“the court must grant leave to the extent consistent with Rule 26(b)(2).”
Fed. R. Civ. P. 30(a)(2). Rule 26(b)(2) states that courts must limit the
depositions if:
(i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from
some other source that is more convenient, less
burdensome, or less expensive; (ii) the party
seeking discovery has had ample opportunity to
obtain the information by discovery in the action;
or (iii) the burden or expense of the proposed
discovery outweighs its likely benefit, considering
the needs of the case, the amount in controversy,
the parties' resources, the importance of the
issues at stake in the action, and the importance
of the discovery in resolving the issues.
Pursuant to Federal Rule of Civil Procedure 26(c), a party may
move for and a court may issue, for good cause, a protective order to
protect a party or person from “annoyance, embarrassment, oppression,
or undue burden or expense.” Fed. R. Civ. P. 26(c). Evaluating undue
burden considerations, courts have recognized the need for protective
orders for certain high-ranking officials. “There is wide agreement
among the Circuits that current high-ranking government officials
should not be subject to the taking of depositions absent extraordinary
circumstances.” United States v. Sensient Colors, Inc., 649 F.Supp.2d 309,
316 (D.N.J. 2009); see also Johnson v. Attorney Gen. of N.J., Civ. Action
No. 12-4850, 2015 WL 4915611, at *2 (D.N.J. Aug. 18, 2015). This
principle arises from the landmark case of United States v. Morgan, 313
U.S. 409 (1941), in which the Supreme Court disfavored the taking of
depositions of current high-ranking governmental officials. In its
decision, the Supreme Court analyzed the effects of probing the decision-
making process and noted that “[j]ust as a judge cannot be subjected to
such scrutiny, so the integrity of the administrative process must be
equally respected.” Jd. at 422. Other district courts in the Third Circuit
have expressed an interest in “ensuring that high level government
officials are permitted to perform their official tasks without disruption
or diversion.” See Buono v. City of Newark, 249 F.R.D. 469, 470 n.2
(D.N.J. 2008). In Buono, the Court relied upon the First Circuit’s
observation that, “this rule is based on the notion that high ranking
government officials have greater duties and time constraints than other
witnesses,” and “without appropriate limitations, such officials will
spend an inordinate amount of time tending to pending litigation.” Jd.
(citing Bogan v. City of Boston, 489 F.3d 417, 423-24 (1st Cir. 2007)).
Thus, “[hligh ranking government officials are generally entitled to
limited immunity from being deposed concerning matters about which
they have no unique personal knowledge.” Brennan v. City of
Philadelphia, 388 F.Supp. 3d 516, 520 (E.D. Pa. 2019).
While courts typically refrain from allowing high-ranking officials
to be deposed, extraordinary circumstances may exist to overcome this
general rule. In examining whether extraordinary circumstances are
present, the Court looks to five factors outlined by the First Circuit: “(1)
that the official’s testimony is necessary to obtain relevant information
that is not available from another source; (2) the official has first-hand
information that could not be reasonably obtained from other sources; (3)
the testimony is essential to that party’s case; [ (4 ] the deposition would
not significantly interfere with the ability of the official to perform his
government duties; and [ (5) ] that the evidence sought is not available
through any alternative source or less burdensome means.” Buono, 249
F.R.D. at 470 (quoting Bogan, 489 F.3d at 423-24).
IT. Discussion
The plaintiff argues that the high-ranking official doctrine does not
apply under the facts of this case. Alternatively, the plaintiff contends
that to the extent that the doctrine does apply, the defendants waived it.
1. Application of the High-Ranking Official Doctrine
Our analysis begins with the determination whether a state police
commissioner, current or former, is a high-ranking government official.
Whether an individual qualifies as a high-ranking government official is
decided on a case-by-case basis. Cf. Byrd v. Dist. of Columbia, 259 F.R.D.
1, 6 (D.D.C. 2009). The Third Circuit has yet to establish a bright-line
rule for classifying individuals as “high-ranking.” See Sensient Colors,
649 F.Supp 2d at 316. In addressing this issue in Buono, the Court found
that Morgan applied to the Mayor of Newark. Buono, 249 F.R.D. at 470.
Other district courts have applied the Morgan doctrine to establish that
a chief of police, a former police commissioner, and a state police
superintendent constitute high-ranking government officials. See Detoy
.
v. City & Cty. of San Francisco, 196 F.R.D. 362, 370 (N.D. Cal. 2000);
Gibson v. Carmody, No. 89 Civ. 53858 (LMM) 1991 WL 161087, at *2
(S.D.N.Y. Aug.14, 1991); Johnson, 2015 WL 4915611, at *2. Other courts
have held that the Mayor of the District of Columbia, United States
Senators, the General Counsel to United States House of
Representatives, the Attorney General of the United States, and certain
high administrative heads are high-ranking officials for this purpose. See
Alliance for Global Justice v. District of Columbia, No. 01—00811
(PLF/JMF), 2005 WL 1799558, (D.D.C. July 29, 2005); Bardoff v. United
States, 628 A.2d 86 (D.C. 1993); Davis v. United States, 390 A.2d 976
(D.C. 1978) We find that Commissioner Robert Evanchick, the current
Pennsylvania state police commissioner, qualifies as a high-ranking
public official. However, it is undisputed that former state police
commissioners Frank Noonan and Tyree Blocker, who are sought to be
deposed, are no longer high-ranking officials as they no longer serve as
commissioner or as the head of any other department. (Doc. 62, at 6-7).
The need to protect them from the burdens of being deposed, as defined
by Morgan, no longer exists. “[I]t is the current position, and not any
former position that is evaluated.” Byrd, 259 F.R.D. at 8. The defendants
maintain that because Noonan is not a named defendant in these cases,
and that Blocker is a named defendant in Case No. 18-cv-2448, but not
in Case No. 18-cv-1272, they should not be deposed. Further, with
respect to Blocker, they argue that there are other named defendants
who had more direct involvement in the plaintiff's case who are permitted
to be deposed, thus precluding the plaintiff from showing that Blocker’s
deposition is necessary. We disagree. The defendants have not identified
the other named defendants, nor have they described the nature of their
involvement. The taking of depositions is not limited to parties, but
rather, the deponent can be “any person, including a party.” Fed. R. Civ.
P. 30(a)(1). In addition, we have found that Noonan and Blocker are no
longer considered high-ranking officials. Therefore, we find that both
Noonan and Blocker may be deposed in these actions.
Former state police commissioner Brown has been identified as the
current director of the Pennsylvania Department of Homeland Security.
(Doc. 62, at 7.) Other than stating that he is the current director, the
defendants do not state his official duties. Nevertheless, based upon his
title and the fact that he is the head of a Commonwealth agency, it
appears that he qualifies as a current high-ranking official. Our inquiry
does not end there.
2. Analysis of the Need for a Protective Order
We must examine whether extraordinary circumstances are
present to overcome the general rule that Commissioner Evanchick
and/or former Commissioner and now Director Brown should not be
subject to the taking of depositions. In undertaking this analysis, we
must determine whether the official has personal involvement or
knowledge relevant to the case. Sensient Colors, 649 F.Supp. 2d at 322.
The official has personal involvement or knowledge where the official has
“acted” in some fashion. Jd. But “[a] party must still show that the
information cannot be gleaned from other sources or achieved through
less burdensome means.” Buono, 249 F.R.D. at 471 n.2.
The plaintiff has alleged that Evanchick was a principal decision-
maker who made decisions that adversely affected the plaintiffs work
assignments, career advancements, discipline, times and types of duty
performed, and participated in the adverse actions taken against the
plaintiff. (18-cv-2448 Doc. 1 9916, 50-55, 74-76.) As Evanchick is alleged
to have been an integral decision-maker and participated in the alleged
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adverse actions taken against the plaintiff, he may have personal
knowledge regarding the actions he took with respect to the plaintiff.
Based upon the limited record before us, it does not appear that this
information can be determined from other sources or achieved through
less burdensome means. See Brennan, 388 F.Supp 3d at 520. However,
because we find that Evanchick is a high-ranking official and that
extraordinary circumstances exist to allow the plaintiff to depose him,
his deposition shall be held on a date, time, and at a location convenient
for him so that he may have access to all forms of communication, on an
as needed basis, to carry out his functions as the current state police
commissioner.
With respect to Brown, the plaintiff has alleged that he emailed
Brown on April 25, 2015, regarding complaints of discrimination and
retaliation, but failed to receive a positive response. (Case No. 18-cv-1272
Doc. 6 J§ 122, 137.) Brown may be able to confirm the existence of the
email from the plaintiff, and if so, he can potentially discuss its contents
and the disposition of the allegations contained within it. Based upon
the limited record before us, it does not appear that this information can
be determined from other sources or achieved through less burdensome
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means. Therefore, we find his deposition relevant and not cumulative.
However, because we find that Brown is a high-ranking official and that
extraordinary circumstances exist to allow the plaintiff to depose him,
his deposition shall be held on a date, time, and at a location convenient
for him so that he may have access to all forms of communication, on an
as needed basis, to carry out his functions as the current director of the
Pennsylvania Department of Homeland Security.
An appropriate order follows.
sare P □
JOSEPH F. SABYRITO, JR.
U.S. Magistrate Judge
Dated: January 28, 2020 :
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