ODOM v. ROBERTS III (2020)

ORDER

Defendant Louis S. Roberts, III, has moved for a protective order which would preclude Plaintiff Teresa Odom from deposing Roberts. For the reasons set forth below, Roberts's motion is denied.

I. Background

Defendant Louis S. Roberts, III, is the Sheriff of Jackson County, Florida. From 2016 to 2018, Roberts employed Defendant Zachary Wester as a deputy sheriff. Wester has been accused—in both a state criminal prosecution and in 38 federal civil actions—of planting narcotics and drug paraphernalia in vehicles he searched in order to incriminate the drivers. Wester's actions purportedly resulted in the arrest and prosecution of at least 38 individuals, some of whom were convicted of crimes they did not commit.

In February 2018, Wester conducted a traffic stop of Plaintiff Teresa Odom, purportedly for faulty brake lights. Odom consented to a search of her truck. During the search, Wester purportedly planted methamphetamine in Odom's purse. Wester arrested Odom and the State of Florida charged her with possession of methamphetamine and drug paraphernalia. The State incarcerated Odom for nineteen days. Odom pleaded nolo contendere to the charges, purportedly to induce the State to release her from incarceration.

Odom subsequently initiated this suit against Wester and Roberts pursuant to 42 U.S.C. § 1983. Odom's claims against Roberts include false arrest/imprisonment in violation of the Fourth Amendment and Florida law, malicious prosecution in violation of the Fourteenth Amendment and Florida law, and negligence under Florida law.

Pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, Roberts designated three agents to testify on his behalf as Sheriff of Jackson County. Odom's attorney deposed all three of these individuals. Nevertheless, Odom seeks to depose Roberts.

Roberts has moved for a protective order that would preclude Odom from deposing him. Roberts argues that he is entitled to such protection because he is a high-ranking official who lacks any personal knowledge that would be relevant to Odom's claims. Odom, however, contends that Roberts is not a high-ranking official and, regardless, he likely possesses relevant knowledge.

II. Discussion

“[T]he purpose of discovery is to provide a mechanism for making relevant information available to the litigants.” Lozano v. Md. Cas. Co., 850 F.2d 1470, 1473 (11th Cir. 1988) (citing Fed. R. Civ. P. 26 advisory committee notes). “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.” Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Liberal discovery rules allow litigants to see the full breadth of the evidence that exists in a case. This helps litigants avoid surprises, leads to the speedier settlement of cases, and helps prevent miscarriages of justice in cases where evidence would otherwise be available to only one party. Brown Badgett, Inc. v. Jennings, 842 F.2d 899, 902 (6th Cir. 1988). Rules favoring broad discovery help “make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958).

The Federal Rules of Civil Procedure strongly favor full discovery whenever that is possible. Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013); Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). Federal Rule of Civil Procedure 26(c), however, allows a court to issue an order to protect a party or person from undue burden. In re Chiquita Brands Int'l, Inc., 965 F.3d 1238, 1249 (11th Cir. 2020) (per curiam). A party seeking a protective order bears the burden of demonstrating the existence of good cause for such an order. Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1313 (11th Cir. 2001); Landry v. Air Line Pilots Ass'n Int'l 7 AFL-CIO, 901 F.2d 404, 435 (5th Cir. 1990). “For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978). When the Federal Rules assign a burden to a party, conclusory statements will not suffice to carry that burden. See Garrett, 571 F.2d at 1326 n.3 (“The burden is upon the movant to show the necessity of” a protective order, which “contemplates a particular and specific demonstration of fact as distinguished from ․ conclusory statements.”).

Under the “good cause” standard, the court must balance the competing interests of the parties. McCarthy v. Barnett Bank of Polk Cnty., 876 F.2d 89, 91 (11th Cir. 1989); In re Alexander Grant & Co. Litig., 820 F.2d 352, 355-56 (11th Cir. 1987); Farnsworth, 758 F.2d at 1547. Trial courts have broad discretion “to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).

The right to take depositions is a “broad” one because depositions are such an important tool of discovery. See Credit Lyonnais, S.A. v. SGC Int'l, Inc., 160 F.3d 428, 430 (8th Cir. 1998); GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 185 (E.D. Pa. 2008) (noting that “depositions play an extremely important role in the American system of justice”). “Depositions of parties and non-parties alike serve as efficient tools in this discovery process. They elicit key facts, thereby progressing cases from complaint to settlement or judgment.” United States v. Sensient Colors, Inc., 649 F. Supp. 2d 309, 321 (D.N.J. 2009).

In light of the importance of depositions, courts have stated that a “party has a general right to compel any person to appear at a deposition ․” CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002) (citing Fed. R. Civ. P. 30(a)); Nat'l Life Ins. Co. v. Hartford Accident & Indem. Co., 615 F.2d 595, 599 (3d Cir. 1980) (“The Federal Rules of Civil Procedure specifically give a party the right to question a witness by oral deposition.”). “As a general proposition each party to a civil law suit has the right to take depositions of the other party, absent a protective order entered by the trial judge.” Colonial Times, Inc. v. Gasch, 509 F.2d 517, 521 (D.C. Cir. 1975); see Jules Jordan Video, Inc. v. 144942 Can. Inc., 617 F.3d 1146, 1158 (9th Cir. 2010) (observing that “under Rule 30 any person's testimony may be taken by deposition”); CSC Holdings, Inc., 309 F.3d at 993 (“A party has a general right to compel any person to appear at a deposition, through issuance of a subpoena if necessary.”).

“Given liberal federal discovery rules, ․ civil litigants almost always must testify in depositions ․” Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989). “The burden of showing good cause to preclude a deposition altogether is a heavy one.” Dunford v. Rolly Marine Serv. Co., 233 F.R.D. 635, 637 (S.D. Fla. 2005). “It is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error.” Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979); Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (noting that a “strong showing is required before a party will be denied entirely the right to take a deposition”); Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (“[I]t is very unusual for a court to prohibit the taking of a deposition altogether absent extraordinary circumstances”).

Despite a civil litigant's broad right to depose an opposing party, because depositions can be used to harass parties, the federal courts have adopted a rule that generally exempts “high-ranking” government officials from depositions when the individual lacks personal knowledge relevant to the case or some other witness could provide sufficient testimony. See generally United States v. Morgan, 313 U.S. 409, 421-22, 61 S.Ct. 999, 85 L.Ed. 1429 (1941) (opining that the district court should not have required the Secretary of Agriculture to submit to a deposition); Sensient Colors, Inc., 649 F. Supp. 2d at 321 (“Morgan stands for the proposition that high-ranking government officials should not be subject to the taking of depositions absent extraordinary circumstances.”); 8A Charles Alan Wright, et al., Federal Practice and Procedure § 2037, at 176-77 & n.20 (3d ed. 2010) (noting that courts grant protective orders when “the proposed deponent is a busy government official, the official claims a lack of relevant knowledge” and “there appears a clear risk of abuse”).

The rationale is that “high-ranking” officials could be burdened unduly if they were required to submit to a deposition in the multitude of civil actions that some government agencies and businesses face. Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007); In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993). Depositions can be burdensome for parties both temporally and financially. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367-68 (11th Cir. 1997); Olivieri v. Rodriguez, 122 F.3d 406, 409 (7th Cir. 1997). For high-ranking government officials, the time consumed by depositions necessarily cannot be devoted to important governmental responsibilities. Lederman v. New York City Dep't of Parks & Recreation, 731 F.3d 199, 203 (2d Cir. 2013).

Unless afforded some protection, high-ranking officials could be overwhelmed by appearances at depositions—not to mention the time that is required to prepare for depositions—which necessarily would inhibit performance of their official duties. Sun Cap. Partners, Inc. v. Twin City Fire Ins. Co., 310 F.R.D. 523, 527 (S.D. Fla. 2015) (“Courts have generally restricted parties from deposing high-ranking officials because (by virtue of their position) they ‘are vulnerable to numerous, repetitive, harassing, and abusive depositions, and therefore need some measure of protection from the courts.’ ”). Public officials “should not have to spend their time giving depositions in cases arising out of the performance of their official duties unless there is some reason to believe that the deposition will produce or lead to admissible evidence.” Olivieri, 122 F.3d at 409-10.¹

The official who seeks to be protected from a deposition has the burden of establishing that he indeed is a “high-ranking” government official. Estate of Levingston v. Cnty. of Kern, 320 F.R.D. 520, 525 (E.D. Cal. 2017); Byrd v. District of Columbia, 259 F.R.D. 1, 8 (D.D.C. 2009). The federal courts have not settled on a standard for determining whether a government official is sufficiently “high-ranking” to warrant protection. Sensient Colors, Inc., 649 F. Supp. 2d at 321 (acknowledging that “there is no hard and fast rule”); Byrd, 259 F.R.D. at 6 (acknowledging “no standard has been established for determining if an official is high-ranking”).

Here, Roberts assumes that, because he is a sheriff, he qualifies as a sufficiently high-ranking official to warrant protection. That may be a safe assumption. Most courts that have addressed the issue have held that sheriffs—regardless of the population or size of the jurisdiction in which they serve—are of sufficient rank to warrant protection from depositions. See, e.g., Estate of Levingston, 320 F.R.D. at 524 (sheriff of Kern County, California); Anderson v. Cnty. of Contra Costa, 2017 WL 930315, at *3-4 (N.D. Cal. Mar. 9, 2017) (sheriff of Contra Costa County, California); Myles v. Cnty. of San Diego, 2016 WL 4366543, at *4 (S.D. Cal. Aug. 15, 2016) (sheriff of San Diego County, California); Buckler v. Israel, 2014 WL 7777678, at *2 (S.D. Fla. Nov. 13, 2014) (former sheriff of Broward County, Florida); Holguin v. Cnty. of Los Angeles, 2011 WL 7128640, at *3-4 (C.D. Cal. Oct. 12, 2011) (sheriff of Los Angeles County, California); Slone v. Judd, 2011 WL 1584421, at *1 (M.D. Fla. Apr. 26, 2011) (sheriff of Polk County, Florida); McDaniel v. Bradshaw, 2011 WL 13150501, at *2 (S.D. Fla. May 23, 2011) (sheriff of Palm Beach County, Florida); Jarbo v. Cnty. of Orange, 2010 WL 3584440, at *2 (C.D. Cal. Aug. 30, 2010) (sheriff of Orange County, California); Clark v. Keen, 2009 WL 179674, at *4 (M.D. Fla. Jan. 23, 2009) (sheriff of DeSoto County, Florida); Moyle v. Anderson, 2008 WL 4613751, at *7 (D. Minn. Oct. 15, 2008) (sheriff of Sherburne County, Minnesota); Gray v. Kohl, 2008 WL 1803643, at *1 (S.D. Fla. Apr. 21, 2008) (sheriff of Monroe County, Florida).

In Florida, a sheriff is elected by the citizens of the respective county. Fla. Const. art. VIII, § 1. Florida law assigns a myriad of important duties to Florida sheriffs, including the obligation to maintain the peace and apprehend dangerous criminals. Fla Stat. § 30.15. Counties also may assign additional duties to their sheriffs. Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm'rs., 405 F.3d 1298, 1309 (11th Cir. 2005). As sheriff, Roberts is the highest-ranking official in the Jackson County Sheriff's office and the chief policy maker. By virtue of being a sheriff, Roberts likely would be subjected to numerous depositions—some of which would be designed merely to harass and abuse him—concerning matters of which he has no personal knowledge and which other members of his office would be better-suited to address. Accordingly, Roberts is a sufficiently high-ranking official to warrant heightened protection from depositions.

Establishing that an individual is a “high-ranking” government official is not the end of the matter. “Depositions of high ranking officials may be permitted where the official has first-hand knowledge related to the claim being litigated [and] other persons cannot provide the necessary information.” Bogan, 489 F.3d at 423. Courts have held that sheriffs who have personal knowledge of important facts can be deposed. See, e.g., Green v. Baca, 226 F.R.D. 624, 649-50 (C.D. Cal. 2005) (holding that the sheriff of Los Angeles County, California could be deposed because it was likely that he had personal knowledge of relevant facts).

To demonstrate that a high-ranking government official should be deposed, a party must show that:

(1) deposing the official is necessary to obtain relevant, “first-hand” information;

(2) the information possessed by the official is important to the case;

(3) the deposition would not significantly interfere with the ability of the official to perform his government duties or reasonable accommodations could ameliorate such interference; and

(4) the evidence sought is not reasonably available through less-burdensome means or alternative sources.

See Lederman, 731 F.3d at 203; Bogan, 489 F.3d at 423; In re United States (Holder), 197 F.3d 310, 314 (8th Cir. 1999); Olivieri, 122 F.3d at 409-10; In re United States (Kessler), 985 F.2d at 512; Sweeney v. Bond, 669 F.2d 542, 546 (8th Cir. 1982); Thomas, 715 F. Supp. 2d at 1049; Sensient Colors, Inc., 649 F. Supp. 2d at 320; Buono v. City of Newark, 249 F.R.D. 469, 470 n.2 (D.N.J. 2008). The party seeking to depose the official has the burden of establishing these elements. Lederman, 731 F.3d at 203; In re United States (Holder), 197 F.3d at 314; In re United States (Kessler), 985 F.2d at 512.

Here, Odom has demonstrated that Roberts likely has information from first-hand experiences, which no other witness likely would possess. For example, Odom has alleged that the former sheriff of Liberty County, Florida, provided Roberts with adverse information regarding Wester and advised Roberts not to employ Wester as a deputy sheriff. Likewise, Odom has alleged sufficiently that Roberts delegated supervisory responsibilities to Wester. Additionally, Odom has alleged sufficient facts which indicate that Roberts may have known that Wester was not complying with policies regarding body-worn cameras when Wester was making arrests, including some of the arrests that purportedly involved Wester planting narcotics on innocent citizens. Furthermore, due to the relatively small size of the Jackson County Sheriff's Office, it is likely that Roberts had relevant interactions and conversations with Wester regarding at least some of the thirty-eight arrests which are alleged to be based on planted evidence. Odom also has sufficiently demonstrated the importance of the evidence.

As to the burden on the government official with respect to performance of his duties, although the party seeking a deposition is charged demonstrating that the deposition would not significantly interfere with the ability of the official to perform his government duties or reasonable accommodations could ameliorate such interference, the government official certainly is free to weigh in on this issue. Indeed, the government official is better positioned to know his schedule and whether a deposition could be held at a convenient time and in a convenient location. “The ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary.” United States v. New York, New Haven & Hartford R.R. Co., 355 U.S. 253, 256 n.5, 78 S.Ct. 212, 2 L.Ed.2d 247 (1957). Roberts has not demonstrated that a brief deposition would have substantial deleterious consequences or substantially inhibit his ability to perform his duties as the sheriff of Jackson County. Regardless, courts can ameliorate the burden placed on a government official by imposing time limitations and restricting depositions to approved subjects. Greater Birmingham Ministries v. Merrill, 321 F.R.D. 406, 414 (N.D. Ala. 2017). This court will do so in this case.

As to whether the desired information could be obtained from other sources, Odom demonstrated that she took reasonable measures to obtain the necessary information. For example, she has deposed a substantial number of witnesses, including three witnesses designated by Roberts pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Some of these witnesses indicated that only Roberts would have the necessary information. Odom also propounded interrogatories to Roberts. With respect to some of the interrogatories, Roberts responded with impermissible “boilerplate” objections and refused to respond. See Steed v. EverHome Mortg. Co., 308 F. App'x 364, 371 (11th Cir. 2009) (noting that “boilerplate objections border on a frivolous response to discovery requests”). Odom has sufficiently demonstrated that she reasonably attempted to exhaust all other avenues to obtain the relevant information likely possessed by Roberts.

Odom, therefore, has demonstrated that she should have an opportunity to depose Roberts. Nevertheless, to ensure that Roberts is not subjected to harassment and that his duties as sheriff are not neglected deleteriously, this court will limit Roberts's deposition only to two hours.

III. Conclusion

For the reasons set forth above, this court denies Roberts's motion for a protective order. Nevertheless, this court limits the duration of Roberts's deposition to two hours. Furthermore, the parties shall conduct Roberts's deposition on a date and at a time and location that will minimize the burden placed on Roberts.

SO ORDERED this 1st day of December, 2020.

FOOTNOTES

1.   Some courts have extended this protection to former government officials. Thomas v. Cate, 715 F. Supp. 2d 1012, 1049 (E.D. Cal. 2010) (“The general rule prohibiting depositions of high-ranking government officials applies to former high-ranking official.”). This suggests that the rationale for this policy is founded on more than simply a desire not to inhibit public officials in the performance of their public duties.

Michael J. Frank, United States Magistrate Judge