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Alexander v. Federal Bureau of Investigation

April 21, 1999


The opinion of the court was delivered by: Royce C. Lamberth United States District Court


This matter comes before the court on Plaintiffs' Motion [488] for Authorization to Take Additional Depositions. Upon consideration of plaintiffs' motion, government defendants' opposition, defendant Hillary Rodham Clinton's opposition, and plaintiffs' omnibus reply, the court will GRANT IN PART and DENY IN PART plaintiffs' motion, as discussed and ordered below.

I. Introduction

The allegations in this case arise from what has become popularly known as "Filegate." Plaintiffs allege that defendant FBI and defendant Executive Office of the President (EOP) willfully and intentionally violated plaintiffs' rights under the Privacy Act. Moreover, plaintiffs allege that Bernard Nussbaum, Craig Livingstone, and Anthony Marceca committed the common-law tort of invasion of privacy by willfully and intentionally obtaining plaintiffs' FBI files for improper political purposes. Based upon these allegations, plaintiffs seek to certify their lawsuit as a class action on behalf of all "former U.S. Government employees, whose confidential FBI files were improperly obtained from the FBI by the White House." Plaintiffs' Complaint ¶ 15.

On February 18, 1997, the Attorney General of the United States certified that plaintiffs' common law invasion of privacy claims arose from conduct within the scope of Nussbaum's, Livingstone's, and Marceca's employment. For this reason, the United States filed a notice under the Westfall Act, 28 U.S.C. § 2679, to substitute itself for these named defendants. See Notice of Substitution, filed February 18, 1997. Based upon this substitution, the United States moved to dismiss the claims made against it (i.e., those originally made against Nussbaum, Livingstone, and Marceca) for failure to exhaust administrative remedies as provided in the Federal Tort Claims Act. Plaintiffs opposed the United States' notice of substitution and motion to dismiss.

The court later held a hearing on all pending motions, including the United States' notice of substitution and plaintiffs' motion for class certification. On June 12, 1997, the court deferred ruling on these two matters pending the opportunity for plaintiffs to take some limited discovery. In later ruling upon the parties' Local Rule 206 report, the court held that plaintiffs would have six months to complete all discovery relating to the scope-of-employment *fn1 and class certification issues. *fn2 Order of August 12, 1997. The court also set a presumptive limit of twenty depositions for each side during this initial discovery period, with a six-hour maximum for each deposition. Finally, the court ordered plaintiffs to file within ten days after the close of this initial phase of discovery supplemental memoranda on the issues of class certification and scope of employment, in addition to setting deadlines for opposition and reply memoranda. Following resolution of the class certification and scope-of-employment issues, the court contemplated that there would be a period of further discovery, followed by dispositive motions, if appropriate.

Because plaintiffs have exhausted their presumptive limit of depositions for this initial discovery period, they now seek leave of court to depose further witnesses.

II. Analysis

Now that plaintiffs have taken twenty-six depositions in this case and already have been granted leave to take two more, *fn3 plaintiffs proclaim that they are ready to "delve into the heart of their case." Plaintiffs' Mot. at 2. In short, plaintiffs contend that they should be allowed further depositions because twenty-eight is simply not enough to make an adequate examination of the class certification and scope-of-employment issues. Moreover, plaintiffs claim that their efforts to date, which they characterize as proceeding "in the most expeditious manner possible," have been hampered by the government defendants' stonewalling tactics. Plaintiffs' Reply at 1. Based on this predicate, plaintiffs list approximately 38 people whom they wish to depose, and allude to an ambiguously defined, limitless amount of other people from whom they may also seek testimony. *fn4

Defendant EOP's response to plaintiffs' request is based upon two arguments. First, defendant EOP claims that the principles embodied by the Westfall Act, dealing with the proper substitution of the United States for federal employees in certain situations, require a determination of the scope-of-employment issue immediately and, correspondingly, mandate that plaintiffs be denied any further discovery on this issue. Second, defendant EOP contends that any insufficiency of discovery suffered by plaintiffs was caused by plaintiffs' own squandering of opportunities. In other words, according to defendant EOP, plaintiffs have wasted their presumptive number of depositions on less relevant but more newsworthy deponents.

The court believes that the concerns raised and arguments made by defendant EOP are valid. Accordingly, the court will grant plaintiffs leave to take a maximum of only five more depositions on the issues of class certification and scope of employment. *fn5 This holding strikes the proper balance between plaintiffs' right to discovery on their allegations, defendants' right to an expeditious determination of the class certification and scope-of-employment issues, and plaintiffs' inefficient discovery practices.

The court has already stated during the hearing held with regard to the underlying scope-of-employment and class certification matters that the Westfall Act was intended to provide government employees immunity not only from trial, but from discovery as well. Discovery on the scope-of-employment issue, as well as class certification, has now been ongoing for approximately twenty-two months. The court cannot allow plaintiffs more than five additional depositions and reasonably stay in accordance with the purpose of the Westfall Act. See Brown v. Armstrong, 949 F.2d 1007, 1012 (8th Cir. 1991) (holding that "challenges to the Attorney General's certification must be resolved . . . as soon after the motion for substitution as possible").

But the Westfall Act is not the only rule of law calling for expeditious rulings in this case. Rule 23(c)(1) of the Federal Rules of Civil Procedure requires that, "[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." FED. R. CIV. P. 23(c)(1) (emphasis added). It is the court's view that allowing plaintiffs greater than five additional depositions and nearly two years in total discovery on class certification would run afoul of this FED. R. CIV. P. 23(c)(1) standard for class certification.

The court is cognizant that plaintiffs may claim to be prejudiced by these limitations. After all, plaintiffs have still not deposed the figures presumably at the center of their allegations--e.g., defendants Nussbaum, Livingstone, and Marceca. Any such argument must be rejected, however, because the court has given plaintiffs more than satisfactory leeway to fully examine the issues of class certification and scope of employment. To the extent that plaintiffs are prejudiced by the court's ruling today, the prejudice is self-inflicted. To date, plaintiffs have simply not executed a discovery plan that would expeditiously lead to the evidence they seek in order to avoid the substitution of the United States as a party and to prevail on their motion for class certification. ...

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