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Alexander v. Federal Bureau of Investigation

May 17, 1999

CARA LESLIE ALEXANDER, ET AL., PLAINTIFFS,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

This matter comes before the court on Plaintiffs' Motion [553] to Compel Further Deposition Testimony from William H. Kennedy, III and for Sanctions. Upon consideration of plaintiffs' motion, defendant Executive Office of the President's (EOP) opposition, plaintiffs' reply, and defendant EOP's surreply, the court will sustain in part and overrule in part defendant EOP's objections that pertain to plaintiffs' motion. Therefore, plaintiffs' motion will be GRANTED IN PART and DENIED IN PART.

I. Introduction

The underlying allegations in this case arise from what has become popularly known as "Filegate." Plaintiffs allege that their privacy interests were violated when the FBI improperly handed over to the White House hundreds of FBI files of former political appointees and government employees from the Reagan and Bush Administrations.

The dispute now before the court centers around the deposition of William H. Kennedy, III, former Associate White House Counsel to President Clinton. Kennedy was deposed on October 15, 1998, in Little Rock, Arkansas, the city where he currently resides. Plaintiffs served Kennedy with a subpoena issued from the Western District of Arkansas pursuant to FED. R. CIV. P. 45. Plaintiffs have moved under FED. R. CIV. P. 37 to compel answers to various questions that went unanswered at Kennedy's deposition.

On April 16, 1999, this court deferred ruling upon plaintiffs' motion because of the inadequate briefing on a threshold jurisdictional issue. Specifically, the court determined that supplemental briefing was required on whether and to what extent this court had the power to grant plaintiffs' requested relief under FED. R. CIV. P. 37(a). The court believes that this issue has now been properly briefed, so the court will resolve it and then address the merits of plaintiffs' motion to compel, to the extent the court has jurisdiction to do so.

II. Analysis

A. Jurisdiction

The jurisdictional issue before the court is whether and to what extent this court, as the court in which this action is pending, has the power to grant plaintiffs' requested relief against defendant EOP, a party, and Kennedy, a non-party deponent, in the context of Kennedy's deposition that was taken outside the range of this court's subpoena power pursuant to FED. R. CIV. P. 45. The parties are largely in agreement on this issue. In short, the parties agree that this court's power under FED. R. CIV. P. 37(a) depends upon against whom the court's relief would run. Rule 37 of the Federal Rules of Civil Procedure appears to substantiate this proposition:

(a) Motion for Order Compelling Disclosure or Discovery

(1) Appropriate Court. An application for an order to a party shall be made to the court in which the action is pending. An application for an order to a person who is not a party shall be made to the court in the district where the discovery is being, or is to be, taken. FED. R. CIV. P. 37(a)(1).

Thus, according to the plain language of the rule, the critical issue is a determination of whom the court would be ordering were plaintiffs granted relief.

Both sides agree that this court has the power to rule upon the objections made by defendant EOP, as an order sustaining or overruling these objections would be an "order to a party." Id. Both sides ask the court to exercise this power. Furthermore, although not specifically mentioned by defendant EOP, it would appear that the court also has the power to make an appropriate determination as to an award of attorneys' fees and expenses, as required by FED. R. CIV. P. 37(a)(4), as such relief would also be an "order to a party."

The court does not, however, have the power to rule upon relief that would run only against a non-party. FED. R. CIV. P. 37(a). Plaintiffs request, in the interest of "judicial efficiency," that this court rule upon non-party Kennedy's private counsel's objection to a question concerning whether Kennedy's counsel has corresponded with Livingstone. Of course, judicial efficiency does not create jurisdiction. No party objected to this question. Because this court can grant relief only against a party, it must deny plaintiffs' request for the court to rule upon this objection. Plaintiffs may only be granted this relief by a federal court in the Western District of Arkansas. With the parameters of this court's jurisdiction in the context of the pending motion established, the objections made by defendant EOP may now be addressed. *fn1

B. Plaintiffs' Motion to Compel

Defendant EOP objected to the following questions, and Kennedy refused to answer these questions based upon defendant EOP's objections:

1. What documents did Kennedy's counsel provide to Kennedy in preparation for ...


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