The opinion of the court was delivered by: Date: Royce C. Lamberth, United States District Court
This matter comes before the court on Defendants' Motion to Quash Plaintiffs' Subpoena for the Deposition of Government Counsel and for Expedited Consideration. Upon consideration of defendants' motion, plaintiffs' opposition, and defendants' reply, the court will DENY defendants' motion, as discussed and ordered below.
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 by improperly obtaining and releasing their FBI file information. 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.
On February 18, 1997, pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(1), the United States, through then-Deputy Assistant Attorney General Eva Plaza, filed a notice of substitution of itself for defendants Nussbaum, Livingstone, and Marceca. Plaintiffs challenged the substitution and asked the court to find that these individual defendants were acting outside the scope of their employment. The court declined to adopt plaintiffs' conclusion, rejected the United States' contention that "because the defendants were political appointees, it was within the scope of their employment to gather . . . FBI files for partisan political purposes," found that plaintiffs had raised a genuine issue of material fact as to whether the individual defendants were acting within the scope of their employment, and held that plaintiffs were entitled to some discovery on this issue, along with the issue of class certification. Alexander v. FBI, Civ. No. 96-2123, Memorandum Op. at 18 (D.D.C. June 12, 1997).
A recent ruling of this court has set a date-certain deadline on this initial phase of discovery. On April 21, 1999, the court held that plaintiffs are allowed only five further depositions (excluding the depositions of Betsy Pond and Deborah Gorham) on the issues of class certification and scope of employment and that all discovery on these issues must end by June 12, 1999. See Alexander v. FBI, Civ. No. 96-2123, Memorandum and Opinion at 7 (D.D.C. Apr. 21, 1999). On June 7, 1999, plaintiffs served a subpoena duces tecum and Notice of Rule 30(b)(6) Deposition on the Department of Justice. Plaintiffs' Notice asks that the Department of Justice designate the appropriate person or persons to testify about "all matters which refer to, or relate to, or form the underlying factual basis" for the United States' certification. Plaintiffs' Notice of Rule 30(b)(6) Designation at 2. The deposition was noticed for June 11, 1999, at 8:00 a.m. On June 8, 1999, defendants moved to quash plaintiffs' subpoena on the basis of relevance, attorney-client privilege, attorney work-product privilege, and deliberative process privilege. Defendants have not moved for a protective order. On June 10, 1999, the court temporarily stayed the deposition pending further order. For the reasons stated below, the court will deny defendants' motion but will significantly limit plaintiffs' scope of inquiry to avoid clearly privileged testimony and documents from being released.
Plaintiffs seek to discover the facts underlying the Deputy Assistant Attorney General's certification. See Plaintiffs' Opposition at 3-4. Defendants contend that, based on a lack of relevance, plaintiffs are not entitled to discover the facts underlying that certification, even though they bear directly upon whether the individual defendants were acting within the scope of their employment. According to defendants, these facts are made irrelevant by the de novo standard of review under which this court must analyze the Westfall Act certification and, consequently, the scope-of-employment issue. This argument is incorrect. These facts are relevant because of the de novo standard and the issues needed to be resolved in this case--e.g., whether the individual defendants were acting in the scope of their employment, notwithstanding the Deputy Assistant Attorney General's review of them, as described below.
Rule 26(b)(1) of the Federal Rules of Civil Procedure, which addresses the scope of discovery, states that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." FED. R. CIV. P. 26(b)(1). Clearly the Deputy Assistant Attorney General's certification is a relevant matter, since it affects the determination of whether the individual defendants are proper defendants to this lawsuit. See 28 U.S.C. § 2679. The case law in this circuit is clear, and defendants agree, that the Westfall Act certification is not conclusive and that plaintiffs may challenge it. See Kimbro v. Velten, 30 F.3d 1501 (D.C. Cir. 1994). The court's review of the certification, if plaintiffs show a genuine issue of material fact, is to take place under a de novo standard after an evidentiary hearing. Id. at 1509.
Contrary to defendants' reasoning, the facts plaintiffs seek--i.e., those bearing upon whether the individual defendants acted in the scope of their employment, including the identify of government employees with knowledge of relevant facts and documents containing similarly relevant information--are not made irrelevant by the de novo standard of review. Presumably the Deputy Assistant Attorney General and plaintiffs would generally have an interest in the same nucleus of facts as relevant to whether the individual defendants acted within the scope of their employment. It is exactly this set of facts that plaintiffs will need discovery of to present their arguments at any evidentiary hearing in this matter. *fn1 Therefore, because the facts plaintiffs seek--which hopefully underlie the Westfall Act certification and which bear directly upon whether the individual defendants should even be defendants in this case--are discoverable, defendants' contention to the contrary must be rejected. Put another way, plaintiffs are entitled to learn facts bearing upon whether the individual defendants acted within the scope of their employment, unless the release of this information would infringe upon privileged matter. Westfall Act certification, no matter what standard of review the court uses in reviewing it, does not alter the relevance of these facts. The de novo standard of review only bolsters the importance of these facts because of the lack of deference given to the certification.
The court agrees with defendants' relevance arguments, however, to the extent that plaintiffs seek to learn the process behind the Deputy Assistant Attorney General's certification, the adequacy of that determination, or the internal deliberations of the Department of Justice regarding the facts gathered. Plaintiffs' remedy for any shortcoming in those respects is through the presentation of the relevant facts described above directly to the court under a de novo standard, not though indirectly attacking the inadequate process of or basis for the certification. See id. (noting that the Westfall Act certification should be given "no particular evidentiary weight" except to the extent that it is given "`prima facie' effect"). Thus, because the process used by the Deputy Assistant Attorney General is not relevant to any determination needed to be made by this court, and because the adequacy of the information available to the Deputy Assistant Attorney General is not in and of itself relevant given the de novo standard of review, plaintiffs may not rely upon these theories to justify discovery. *fn2
In conclusion, plaintiffs are entitled in terms of discovery to facts that bear upon whether the individual defendants acted within the scope of their employment because these facts directly pertain to the evidentiary determination needed to be made by this court as to the scope-of-employment issue. The adequacy of and process behind the Deputy Assistant Attorney General's certification do not fall within this discoverable category.
It is the court's perception that what is truly the gravamen of defendants' motion to strike is not the facts plaintiffs seek to discover. Rather, it is how and from whom plaintiffs seek to discover these facts to which defendants object. But this issue is not one of relevance; it is ...