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Sherrod v. Breitbart

United States District Court, District of Columbia

June 9, 2014

SUSANNAH BREITBART et al, Defendants.


RICHARD J JLE & N United States District Judge

The pending motion to quash arises out of an action for defamation, false light, and intentional infliction of emotional distress. Compl. ¶1 [Dkt. #1-2]. Plaintiff Shirley Sherrod alleges that a blog post and video excerpts published by Andrew Breitbart[1] and Larry O'Connor depicted her as a racist and led to her being forced to resign from her job as the Georgia State Director for Rural Development for the United States Department of Agriculture ("USDA"), a post to which the Obama Administration appointed her in 2009. Id. Sherrod and O'Connor have noticed subpoenas to Secretary of Agriculture Thomas J. Vilsack, a third party. Sec'y Mot. to Quash, Ex. J [Dkt. #117-11]; Sec'y Motion to Quash, Ex. K [Dkt. #117-12]. The United States moves to quash those subpoenas. Sec'y Mot. to Quash [Dkt. #117]. For the reasons described herein, the United States' motion is DENIED.


On July 19, 2010, Andrew Breitbart published a blog post containing embedded video clips of excerpts from a speech Sherrod gave to the NAACP in the spring of 2010. Joint Meet and Confer Statement at 2 [Dkt. #81]. The video was introduced by a series of slides, including slides that stated "Ms. Sherrod admitted] that in her federally appointed position, overseeing over a billion dollars . . . [s]he discriminates against people due to their race." Compl. ¶¶{ 35-36; Breitbart Answer ¶|¶ 35-36 [Dkt. #37]. Shortly before Andrew Breitbart published the blog post, O'Connor posted the video clips to his YouTubc account. Joint Meet and Confer Statement at 2.

Later that day, Secretary of Agriculture Thomas Vilsack was made aware of the video excerpts. U.S. Status Conf. Mem., Ex. B [Dkt. #89-3]; U.S. Status Conf. Mem., Ex. C at 2 [Dkt. #89-4]. Secretary Vilsack has acknowledged that he "asked for and accepted [plaintiffs] resignation" that evening. U.S. Status Conf. Mem., Ex. B. The next day, July 20, 2010, the NAACP released the full video of Sherrod's speech, O'Connor Answer ¶80 [Dkt. #38], which made apparent Sherrod was retelling a story that had transpired years earlier. The Secretary called Sherrod on July 21, 2010, apologized to her, and discussed the possibility of Sherrod taking a different position at the USDA. U.S. Status Conf. Mem., Ex. C at 1. Approximately a month later, the Secretary met with Sherrod in person, again proposing a potential return to the USDA, but Sherrod declined. U.S. Status Conf. Mem., Ex. A at 1-2 [Dkt. #89-2].

Ms. Sherrod filed this suit in February 2011 in the Superior Court of the District of Columbia. Compl. Defendants removed it to federal court in March 2011. Notice of Removal [Dkt. #1]. An interlocutory appeal challenging this Court's decision to deny defendants' motion to dismiss delayed the start of discovery for approximately two years. See Notice of Appeal [Dkt. #41]. Our Circuit affirmed the denial of the motion to dismiss in the summer of 2013. Mandate of USCA [Dkt. #64]. Fact discovery began in earnest shortly thereafter with an initial eye toward completion in May 2014, Scheduling Order [Dkt. #82], but it has been mired in disputes since then.

The parties have pursued extensive discovery, with original document requests asking for documents spanning time frames of over four years. See, e.g., U.S. Status Conf. Mem., Ex. E at 8-12 [Dkt. #89-6]; U.S. Status Conf. Mem., Ex. F [Dkt. #89-7]; U.S. Status Conf. Mem., Ex. G [Dkt. #89-8]. The parties have noticed over 10 depositions of current and former senior government officials, U.S. Status Conf. Mem. at 1 [Dkt. #89], including the depositions of four former White House officials, WH Mot. to Quash [Dkt. #111], and two sitting Congressmen, Congress Mot. to Quash [Dkt. #108]. Defendant O'Connor, in specfic, has sought particularly wide-ranging discovery, including requests to Sherrod and third parties related to the Pigford v. Glickman litigation. Sherrod's Mot. for Protective Order [Dkt. #113]; Sherrod's Mot. for Protective Order, Ex. 2 at 10 [Dkt. #113-2].

Naturally, both sides have subpoenaed the USDA for documents. U.S. Status Conf. Mem. at 1. Sherrod requested 10 categories of documents from June 2009 through the time of production, U.S. Status Conf. Mem., Ex. E at 8-12, while defendant O'Connor requested 73 categories of documents through two subpoenas, including some that reached back to July 2008, U.S. Status Conf. Mem., Ex. F; U.S. Status Conf. Mem., Ex. G. After months of negotiating, the USDA appears to have agreed with Sherrod and O'Connor on search protocols in response to their subpoena, but submits it will take months to fully complete document gathering, review, and production, not counting, of course, any challenges by the parties to claims of attorney-client, work product, and/or executive privilege.[2] U.S. Mar. 13, 2014, Response at 5 [Dkt. #97] (indicating that loading documents onto a platform to be searched could take up to 180 days, before review and production). Indeed, the search protocol calls for USDA to search the emails of 50 custodians, including searches over a three-year time frame for the term "Sherrod" and searches of 70 terms for a more limited period in July 2010. U.S. Mar. 13, 2014, Response at 3-4. To say the least, both sides, in this Court's judgment, have launched discovery requests greatly disproportionate to the specific factual issue(s) that must be resolved at the USDA.

In addition, both plaintiff Sherrod and defendant O'Connor have noticed Secretary Vilsack for an oral deposition. Sec'y Mot. to Quash, Ex. J; Sec'y Mot. to Quash, Ex. K. The United States now moves to quash those subpoenas. Sec'y Mot. to Quash.


Federal Rule of Civil Procedure 26(b)(1) allows parties to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). "Generally speaking, 'relevance' for discovery purposes is broadly construed." Food Lion, Inc. v. United Food & Commercial Workers Int'l Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997).

Alongside these general statements of broad discovery power, courts recognize a need to limit certain requests for discovery, including requests for oral depositions of high-level government officials. "[Subjecting a cabinet officer to oral deposition is not normally countenanced." Peoples v. U.S. Dep't o/ Agric, 427 F.3d 561, 567 (D.C. Cir. 1970). "[T]op executive department officials should not, absent extraordinary circumstances, be called to testify regarding their reasons for taking official actions." Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985) (citing United States v. Morgan, 313 U.S. 409, 422 (1941)). "High ranking government officials have greater duties and time constraints than other witnesses, " In re United States, 985 F.2d 510, 512 (11th Cir. 1993), and those duties "should not be interrupted by judicial demands for information that could be obtained elsewhere, " In re Cheney, 544 F.3d 311, 314 (D.C. Cir. 2008).

However, the courts also recognize and value the parties' needs to develop and prepare their cases. High-ranking officials may be subject to depositions if "'they have some personal knowledge about the matter and the party seeking the deposition makes a showing that the information cannot be obtained elsewhere.'" Payne v. District of Columbia, 859 F.Supp.2d 125, 136 (D.D.C. 2012) (quoting Alexander v. FBI, 186 F.R.D. 1, 4 (D.D.C.1998)); see also Byrdv. District of Columbia, 259 F.R.D. 1, 7 (D.D.C. 2009) ("Unless the movant can show that the need for the protective order is 'sufficient to overcome plaintiffs' legitimate and important interests in trial preparation, ' high-ranking officials are subject to deposition." (quoting Alexander, 186 F.R.D. at 3).

It is clear in this case that Secretary Vilsack has personal knowledge that is directly relevant to the claims and defenses here. The establishment of (or failure to establish) a connection between the blog post and Sherrod's loss of her job is a central issue in this defamation case. Secretary Vilsack has stated that it was his decision to request Sherrod's resignation. U.S. Status Conf. Mem., Ex. C at 2. He is the only one in a position to confirm that and to explain the relationship, if any, of that decision to the blog post and video clips at the heart of this defamation case. Secretary Vilsack, of course, was not the only government official aware of the video excerpts and blog post. He knows who counseled him and the contents of that counsel, as well as what other factual knowledge he had at the time he decided to ask for Sherrod's resignation. Secretary Vilsack also has similar knowledge ...

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