MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
Plaintiff,
a former employee of Saint Elizabeths Hospital in Washington,
D.C., seeks documents relating to findings contained in a
portion of a report issued by the D.C. Office of the Auditor
(“Auditor”), which was prepared with the
assistance of the Council for Court Excellence
(“CCE”). Dkt. 20. Those findings and the
investigation on which they were premised arguably bear on
Plaintiff's claims that she was not selected to serve as
the Chief Executive Officer (“CEO”) of Saint
Elizabeths and, after having served as the interim CEO, was
not reinstated to her prior position as Chief Clinical
Officer because of her race and sex and because she had
engaged in protected equal employment opportunity activity.
Dkt. 1 at 2-3 (Compl. ¶¶ 4-5). The Auditor and CCE
(“movants”) have filed a joint motion to quash
Plaintiff's subpoenas on three grounds. They first, and
most extensively, argue that the subpoenas seek documents
protected by the District's Speech or Debate Statute,
D.C. Code. § 1-301.42, which is modeled on the Speech or
Debate Clause of the U.S. Constitution, art. I, § 6, cl.
1. Dkt. 20 at 10-21. Second, they invoke the deliberative
process privilege. Id. at 24. Third, they contend
that the subpoenas are unduly burdensome and that, at a
minimum, Plaintiff should be required to exhaust the ordinary
discovery process before burdening non-parties. Id.
at 22-25.
As
explained below, the Court is unconvinced that the specific
documents at issue are protected by the Speech or Debate
Statute. At the same time, much of what Plaintiffs seeks
might be protected by the deliberative process
privilege, and it is also possible that the
subpoenas are, at least in part, unduly burdensome or
repetitive of discovery that Plaintiff may be able to obtain
in the ordinary course. On the present record, however,
movants have not carried their burden of demonstrating that
any specific documents are privileged or that the subpoenas
are unduly burdensome. The Court will, accordingly, deny the
pending motion to quash. But, in light of the sensitivities
posed by discovery seeking, among other things, notes of
interviews of current and former employees expressing their
candid assessment of other government employees and
officials, the Court will grant movants leave to file an
amended motion to quash on grounds of deliberative process
privilege and undue burden supported by a more detailed
showing.
I.
BACKGROUND
A.
Factual Background
Plaintiff
Beth Gouse, a Caucasian woman, worked as a clinical
psychologist at Saint Elizabeths Hospital in Washington, D.C.
from 1993 until 2016. Dkt. 1 at 1-2 (Compl. ¶¶
1-4). During her tenure at Saint Elizabeths, Dr. Gouse
received a number of promotions, eventually becoming Chief
Clinical Officer in 2013. Id. at 1 (Compl. ¶
1). In June 2015, Gouse was named interim CEO of the
hospital, and one month after starting her interim position,
she applied for the permanent CEO position. Id.
(Compl. ¶ 1). In February 2016, however, the Director of
the D.C. Department of Behavior Health (“DBH”)
informed Gouse that she had not been selected, id.
at 10 (Compl. ¶ 48), and Gouse later learned that the
Director had chosen another applicant, Dr. James Kyle, for
the CEO position, id. at 11 (Compl. ¶ 52). When
Gouse requested to return to her previous role as Chief
Clinical Officer, Saint Elizabeths informed Gouse that her
employment would be terminated in March 2016. Id. at
11-12 (Compl. ¶¶ 53-55).
Gouse
alleges that her treatment was the result of discrimination
based on race, sex, and reprisal. Id. at 2-3 (Compl.
¶ 5). She seeks to prove her case by demonstrating, in
part, that Dr. Kyle, an African American male, “was not
as qualified” as she was for the CEO position,
id. at 2 (Compl. ¶ 2), and that the Director of
DBH re-assigned several of Gouse's job duties to an
African American female, Dr. Johnson, even though Dr. Johnson
“had no supervisory authority to provide oversight or
management of Saint Elizabeths patients, ” id.
at 7 (Compl. ¶ 34), and was allegedly
“investigated for abuse” due to her
“behavior towards patients and staff, ”
id. at 6-7 (Compl. ¶¶ 30-31).
B.
The D.C. Auditor and the Auditor's Report
The
Office of the District of Columbia Auditor is a position that
exists pursuant to the District of Columbia's Charter.
See D.C. Code § 1-204 et seq. The
Auditor is “appointed by the Chairman” of the
D.C. Council-the District's legislative
branch-“subject to the approval of a majority of the
Council, ” D.C. Code § 1-204.55(a), and is charged
with “conduct[ing] a thorough audit of the accounts and
operations of the government of the District in accordance
with such principles and procedures and under such rules and
regulations as [the Auditor] may prescribe.”
Id. § 1-204.55(b). In carrying out these
duties, the Auditor has “access to all books, accounts,
records, reports, findings and all other papers, things, or
property belonging to or in use by any department, agency, or
other instrumentality of the District government and
necessary to facilitate the audit.” Id. §
1-204.55(c). Once finalized, the Auditor must “submit
his [or her] audit reports to the Congress, the Mayor, and
the Council.” Id. § 1-204-55(d). Those
reports “shall include such comments and information as
the District of Columbia Auditor may deem necessary to keep
the Congress, the Mayor, and the Council informed of the
operations to which the reports relate” and shall
contain “such recommendations with respect thereto as
[s]he may deem advisable.” Id. After receiving
the report, the Council must make the “report, together
with such other material as it deems pertinent thereto,
available for public inspection.” Id. §
1-204.55(e). The statute further requires that the
“Mayor . . . state in writing to the Council, within an
appropriate time, what action” she has “taken to
effectuate the recommendations made by the District of
Columbia Auditor” in the reports. Id. §
1-204.55(f).
About
three months after Plaintiff filed this lawsuit, the Auditor
issued a report entitled Improving Mental Health Services
and Outcomes for All: The D.C. Department of Behavioral
Health and the Justice System (“Report”).
See Dkt. 22 at 12-39 (excerpts of the
Report).[1] As the Auditor explained in the cover
letter conveying the report to Councilmembers Vincent Gray
and Charles Allen, the Report was prepared by CCE “for
the Office of the D.C. Auditor” and was designed to
provide “a comprehensive review of the Department of
Behavioral Health . . . and its work with justice-involved
individuals and with the criminal justice system as a
whole.” Id. at 17. CCE is a “nonprofit,
nonpartisan civic organization” that “identifies
and proposes solutions by collaborating with diverse
stakeholders to conduct research, advance policy, educate the
public, and increase civic engagement.” Dkt. 20-2 at
12.
Although
the 175-page Report addresses a wide range of topics,
including “[f]unding [i]ssues, ” “[m]ethods
of [d]elivery, ” and “[f]orensic [p]rocesses,
” id. at 14, Gouse's interest in the
Report is limited to five pages, which discuss “the
performance of DBH leadership” in the time surrounding
her termination. See Dkt. 22 at 41 (quoting Dkt.
20-2 at 16). The relevant passages can be reproduced in full:
[A]s reported to CCE by several interviewees, one of the most
notable actions by the current Directors was their
termination of and request for the resignation of several
members of DBH and [Saint Elizabeths Hospital] upper
management who had helped see the Department through
significant improvements, including exiting federal
oversight. For example, in early 2016, the Mayor and the
Director of DBH replaced the interim CEO [Gouse], a forensic
psychologist with 20 years of experience at the hospital who
had helped see the hospital through the U.S. Department of
Justice (DOJ) oversight, with a candidate who seriously
misrepresented his credentials and was not qualified for the
position. In fact, D.C. regulators had previously found the
candidate unqualified to work at the University of the
District of Columbia as the “[Registered Nurse]
director of nursing for non-credit programs, ” a
position to which the Executive Office of the Mayor also
appointed him.
Id. at 34. The “candidate” referred to
is Dr. Kyle, the individual ultimately selected as CEO. A few
pages later, the Report discusses Dr. Johnson, the Director
of DFS, who Gouse alleges received several of Gouse's job
duties:
Almost everyone with whom CCE spoke raised concerns about the
management style and behavior of the Director of DFS. Current
and former DBH staff, stakeholders, CSA staff, and consumer
advocates described the management style and behavior as
“vindictive, ” “punitive, ”
“volatile, ” and “adversarial.” Many
expressed concerns about the number of staff and patient
complaints filed against the Director. Many DFS staff agreed
to speak with CCE only on the condition of anonymity,
asserting a fear of retribution from the DFS Director.
Moreover, after investigating six complaints filed against
the Director in 2008 ranging from lack of professional
deportment to verbal abuse of staff and patients, DBH's
Office of Accountability issued a 10-page report that reached
the following conclusions:
. . . the overall findings of this report support the
position that [the current Director of DFS] behaved in a
manner towards patients and staff members that could
reasonably be considered to be argumentative, loud,
offensive, abusive, and unprofessional. . . .
Despite the findings of that report, the Director of DFS was
promoted to their current position. Court records further
show that in FY 2017, the Director of DFS was the target of
two Equal Employment Opportunity (EEO) complaints, which DBH
asserted were both unsubstantiated.
Id. at 38.
C.
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