J.R. MANNES GOVERNMENT SERVICES CORP.,

February 15, 2018

CBCA 5911

J.R. MANNES GOVERNMENT SERVICES CORP.,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Respondent.

Jerry R. Mannes II of J.R. Mannes Government Services Corporation, Holland, MI,

appearing for Appellant.

Jack R. Cordes, Jr., Federal Bureau of Investigation, Department of Justice,

Washington, DC, counsel for Respondent.

SOMERS, Board Judge (Chair).

ORDER

J.R. Mannes Government Services Corporation moves to compel the deposition of

Paul Courtney, the Chief Contracting Officer of the Federal Bureau of Investigation,

Department of Justice (the FBI). The FBI opposes the motion and has requested a protective

order. Because appellant has not shown that it could not obtain the information sought by

less intrusive means, we deny the motion to compel and grant the request for a protective

order.

Background

This case is proceeding on an expedited basis under Board Rule 52. After an initial

status conference, the parties jointly proposed a schedule for future proceedings on January

29, 2018. We adopted the proposed schedule that same day.

CBCA 5911

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On January 29, 2018, appellant notified the FBI of its intent to depose Mr. Courtney

on February 16, 2018. On February 5, 2018, the FBI told appellant that “absent a court order

to the contrary, we will not make Paul Courtney available to you for a deposition . . . . He is

the Chief Contracting Officer for the FBI and had no involvement in the decision to

terminate your contract . . . . ”

On February 8, 2018, appellant asked the FBI to reconsider. Appellant tried to

persuade the FBI of the importance of deposing Mr. Courtney, pointing to a letter signed by

Mr. Courtney that had been sent to the Office of the National Ombudsman, U.S. Small

Business Administration. The letter responds to allegations made by Jerry R. Mannes II,

CEO, that the FBI had improperly terminated two of appellant’s task orders for convenience.

The FBI told appellant that it would not make Mr. Courtney available for deposition

because Mr. Courtney had no personal knowledge of the underlying facts. In response to

appellant’s motion to compel, the FBI explained that FBI counsel had drafted the letter and

that Mr. Courtney had signed it without personal knowledge of the underlying facts. In our

teleconference discussing this motion, the FBI noted that the letter was signed one month

after the claim had been filed.

In its motion to compel, appellant focuses on the last paragraph of the letter:

In conclusion, the FBI acknowledges that it terminated the two task orders at

issue for the convenience of the Government. However, the FBI believes that

it has been responsive to Mr. Mannes’ inquiries, and both claims are being

processed in accordance with applicable Federal Acquisition Regulation

(FAR) procedures and Federal law. I hope this letter is responsive to your

concerns and I welcome any additional questions you have in connection with

this matter.

Appellant says that this paragraph proves that Mr. Courtney had knowledge of, and was in

a position to be aware of, the decision to terminate the contract. When asked at the

teleconference why Mr. Courtney should be deposed, appellant’s representative stated that

it hoped to gain Mr. Courtney’s high-level focus (or a bird’s eye view) of the procurement.

Beyond that, appellant could not explain precisely why it could not obtain discovery from

another source more closely tied to the contract.

Noting that it had responded to twenty-one interrogatories, thirty requests for

admissions, and eight requests for the production of documents from appellant, the FBI

indicated that it had agreed to make four other FBI employees available for deposition,

including the contracting officer who signed the letter advising appellant that the FBI did not

CBCA 5911

3

intend to exercise the option on the task order.1 The FBI opposes appellant’s request to

depose Mr. Courtney because he played no role in the contract and has no personal

knowledge of the facts underlying the appeal. The FBI seeks a protective order to eliminate

the need for Mr. Courtney to comply with the deposition notice.

Discussion

We encourage liberal, voluntary discovery between the parties where it appears the

information sought is relevant to the matters in dispute or reasonably calculated to lead to the

discovery of admissible evidence. Kepa Services, Inc. v. Department of Veterans Affairs,

CBCA 2727, et al., 15-1 BCA ¶ 35,889; Fed. R. Civ. P. 26(b)(1) (permitting parties to seek

discovery that is “relevant . . . and proportional to the needs of the case”). Board Rule 13(c)

allows us to limit discovery for good cause.

The need to limit access to high-ranking government officials in the discovery process

is well established. In United States v. Morgan, 313 U.S. 409 (1941), the Supreme Court

indicated that the practice of calling high ranking government officials as witnesses should

be discouraged. Other courts have concluded that top executive department officials should

not, absent extraordinary circumstances, be called to testify or deposed regarding their

reasons for taking official action. Id. at 422; see Bogan v. City of Boston, 489 F.3d 417, 423

(1st Cir. 2007) (citing Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586

(D.C. Cir. 1985) (citations omitted)). This is because “high-ranking officials have greater

duties and time constraints than other witnesses” and that, without appropriate limitations,

such officials will spend an inordinate amount of time tending to pending litigation. Id.

(citing In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993); Kyle Engineering

Co. v. Kleppe, 600 F.2d 226, 231 (9th Cir. 1979)(trial court did not err in vacating deposition

notice for high ranking government contracts official).

To determine if extraordinary circumstances exist, courts consider whether or not the

party seeking the deposition has shown that: (1) 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 another source; (3) the testimony is

essential to that party’s case; (4) the deposition would not significantly interfere with the

1

During the teleconference, FBI counsel raised security concerns arising from

appellant’s plan to take video depositions using a online streaming platform through the

FBI’s network. Ultimately, when informed that appellant would have to make other

arrangements to take the proposed depositions, appellant “waived” these depositions, citing

cost concerns.

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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. Bogan, 489 F.3d at

423 (citing In re United States (Holder), 197 F.3d 310, 314 (8th Cir. 1999)); Energy Capital

Corp. v. United States. 60 Fed. Cl. 315, 318 (Fed. Cl. 2004) (noting that both current and

former high-ranking government officials are subject to depositions if they have personal

knowledge of the facts at issue).

Our rules and precedent require more than an assertion that Mr. Courtney could

provide a “higher-level perspective” on the case. Appellant must show that Mr. Courtney

was involved in the contract at issue, had personal knowledge of the events that could not be

gleaned from others, or that appellant could not use a less disruptive means to obtain the

potentially relevant information. Appellant has not done so here.2

Decision

Appellant’s motion to compel is DENIED. Respondent’s motion for a protective

order is GRANTED.

___________________________

JERI KAYLENE SOMERS

Board Judge

2

Notably, appellant has chosen to vary the processing of its appeal by using the

small claims procedure in Rule 52. This procedure permits the Board to establish a schedule

meant to encourage the timely, expedited resolution of the appeal. With that in mind, we

issued an order that shortened deadlines for discovery and limited the number of depositions,

as requested by appellant. Appellant has propounded extensive discovery and has received

the agency’s responses. If appellant believed that Mr. Courtney had additional information

not provided in the agency’s responses, it should have identified the missing information

with more specificity.