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Alexander v. Federal Bureau of Investigation

March 6, 2000


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 Jane Sherburne, Non-Party Jane Sherburne's Motion for Leave to File Declaration under Seal, and Non- Party Jane Sherburne's Motion to Strike Plaintiffs' Reply to her Opposition, or, in the Alternative, for Leave to File Surreply to Plaintiffs' Reply to Motion to Compel Further Testimony. Upon consideration of the submissions of the parties and the relevant law, the court will grant Non-Party Sherburne leave to file a declaration under seal and a surreply to plaintiffs' motion to compel, and deny her motion to strike. The court will deny plaintiffs' motion to compel further testimony.

I. Background

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 under the Reagan and Bush Administrations.

The current dispute revolves around the deposition of Jane C. Sherburne, White House Special Counsel from January 1995 to January 1997. Plaintiffs deposed Sherburne on June 21, 1999. At that deposition, plaintiffs asked Sherburne several questions regarding how she became aware of certain aspects of Linda Tripp's testimony at her deposition in this case. Sherburne refused to answer these questions based on her counsel's and defendant EOP's objections due to privilege. Plaintiffs now seek to compel Sherburne to answer these specific questions:

(1) How did Sherburne become aware that Tripp testified at some time since December 1998 that she had seen FBI files of Travel Office workers in Foster's office before those workers were fired?

(2) How did Sherburne learn that Tripp testified that she told Bruce Lindsey about what she had seen concerning the FBI files of Travel Office people and others, and that Lindsey replied to Tripp that talk like that will get you destroyed?

(3) Did Sherburne's counsel relate to her what Tripp had testified?

(4) If so, was that before Sherburne's deposition today?

II. Analysis

A. Relevancy

Rule 26(b) of the Federal Rules of Civil Procedure establishes the respective burdens of the parties with regard to motions to compel. Because plaintiffs can only obtain "discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action" or "information reasonably calculated to lead to the discovery of admissible evidence," they must first show that the information sought to be compelled is discoverable. F ED. R. CIV. P. 26(b)(1); see also Alexander v FBI, 186 F.R.D. 185, 187 (D.D.C. 1999)(stating that the party seeking to compel information must first demonstrate its relevance); Alexander v. FBI, 186 F.R.D. 21, 45 (D.D.C. 1998) (same). Once this has been established, however, the burden shifts to the defendant to prove her claims of privilege. Plaintiffs do nothing to establish relevance in their initial three-page motion, which consisted only of excerpts from Sherburne's deposition and a conclusory statement that the plaintiffs were entitled to have their questions answered. This court has already explicitly stated that "for plaintiffs to prevail on their motion to compel, they must show in their initial motion that the information they seek to compel is relevant, aside from any other claims of privilege." Alexander, 186 F.R.D. at 187 (emphasis added). Plaintiffs have clearly failed to do so in this case. They argue that their failure is a due to the fact that counsel's objections at the deposition were non- specific and based only on a general claim of privilege. They contend that they could not address the merits of Sherburne's privilege claim until after Sherburne's opposition to their initial motion because it was not until then that Sherburne specified which privilege it was that she was asserting. Plaintiffs' argument, however, does not explain why they could not establish the relevance of the information sought in their initial motion as required. Nevertheless, the court finds that the prompt administration of justice is furthered by granting Sherburne leave to file a surreply as opposed to temporarily avoiding the merits of the plaintiffs' motion to compel by striking their reply. Sherburne filed her surreply along with her motion for leave, so no additional work is required of the parties. Furthermore, as discussed below, plaintiffs' reply brief adequately addresses relevancy issues. In the future, however, plaintiffs must either raise all of their appropriate arguments in their initial motion, or else face denial of their motion without leave to re-file the same motion.

The court will now turn its analysis to the merits of the plaintiffs' argument that the information sought is discoverable. Plaintiffs first rely on this court's prior ruling that the circumstances surrounding the release of Linda Tripp's background security information is discoverable. See Alexander v FBI, Civ. No. 96-2123, Memorandum and Order at 6-7 (D.D.C. Apr. 13, 1998). They assert that the information they seek to compel is, therefore, discoverable as it relates to these circumstances. They fail to explain, however, just how their questions might relate to the release of Tripp's personnel file information. The questions at issue seek information about how Sherburne learned of certain claims made during Tripp's deposition in this case. That deposition took place in December 1998 and January 1999, several months after Tripp's background information was released. *fn1 Therefore, this court fails to see how these questions pertain to the circumstances leading to the release of Tripp's file.

Plaintiffs next argue that the information sought is relevant because Sherburne could have become aware of Tripp's testimony due to her first-hand knowledge of the underlying claims. Furthermore, they argue that these questions bear on the weight and credibility of Sherburne's testimony because she could tailor that testimony to her benefit if she was aware of Tripp's prior testimony. Based on this, the court finds that the plaintiffs' questions appear relevant and "reasonably calculated to lead to the discovery of admissible ...

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