The opinion of the court was delivered by: Royce C. Lamberth United States District Court
This matter comes before the Court on Plaintiffs' Motion  to Compel Further Deposition Testimony from Mari L. Anderson and for Sanctions; D. Craig Livingstone's Cross-Motion [N/D] for Costs and Fees; and Defendant Executive Office of the President's Motion  for Attorneys' Fees and Costs. Upon consideration of these motions, oppositions, and replies thereto, the court will DENY Plaintiffs' Motion  to Compel Further Deposition Testimony from Mari L. Anderson and for Sanctions; DENY D. Craig Livingstone's Cross-Motion [N/D] for Costs and Fees; and DENY Defendant Executive Office of the President's Motion  for Attorneys' Fees and Costs, as discussed and ordered below.
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 Mari L. Anderson, former Executive Assistant to Craig Livingstone in the White House Office of Personnel Security (OPS). According to plaintiffs' allegations, OPS is where the plaintiffs' FBI files were acquired. For much of her employment with OPS, Anderson worked in the same room as Craig Livingstone and Anthony Marceca, both of whom are central players under the facts alleged by plaintiffs.
Plaintiffs seek to compel further testimony from Anderson on a variety of matters for which Anderson was instructed not to respond by counsel for the Executive Office of the President, which was representing Anderson's interests in an official capacity as a former government employee.
II. Plaintiffs' Motion to Compel
A. Rule 45 and Voluntary Appearance The first matter that must be addressed in relation to plaintiffs' motion to compel is that of the power of this court to compel further deposition testimony from non-party Anderson, assuming for the moment that plaintiffs were to prevail on the merits of their motion. Plaintiffs do not dispute that Anderson was never served with a subpoena in connection with her first deposition, is not a party or an officer of a party, and is currently a resident of Atlanta, Georgia, as she was at the time of her original deposition. Anderson testified voluntarily at her earlier deposition, at the expense of defendant EOP, in the District of Columbia. Anderson also agreed at her deposition that, should further deposition testimony be needed, she would voluntarily submit to such further examination, on the condition that her expenses be paid and to the extent that her class schedule would allow. Anderson Depo. at 6, 186, 226, & 353-54.
Normally, "a subpoena must be served on a person not a party whose deposition is to be taken." CHARLES ALAN WRIGHT, FEDERAL COURTS § 84, at 610. Rule 45 of the Federal Rules of Civil Procedure provides the procedures for subpoenaing people who are not parties (or officers of parties) to the litigation. See FED. R. CIV. P. 45.
a subpoena may be served at any place within the district of the court by which it is issued, or at any place without the district that is within 100 miles of the place of the deposition . . . specified in the subpoena or at any place within the state where a state statute or rule of court permits service of a subpoena issued by a state court of general jurisdiction sitting in the place of the deposition specified in the subpoena. FED. R. CIV. P. 45(b)(2).
In this case, however, a Rule 45 subpoena is not required because non-party Anderson consents to further examination, albeit with two conditions. First, Anderson must be compensated for her reasonable expenditures related to her voluntarily traveling from Atlanta, Georgia to Washington, D.C. Second, any further deposition would need to conform to her class schedule, as she is currently a full-time student. In short, authority under Rule 45 is not required as long as plaintiffs agree to these conditions. *fn1 Therefore, the court will reject defendant EOP's arguments based upon Rule 45 authority, conditioned upon the plaintiffs' agreement to the conditions placed upon further testimony by non-party Anderson. Because Anderson has consented to such an arrangement, the court will now turn to the relevance of the testimony that plaintiffs seek to compel and the validity of defendant EOP's claims of privilege.
Plaintiffs seek to compel further testimony from Anderson on three questions, all three of which she was instructed not to answer at her original deposition:
1. Whether Anderson discussed with her attorneys a document entitled "Fact Sheet: The Testimony of Mari Anderson," which was attached to excerpts ...