LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on the government's motion to quash (DE 153) petitioner's notice of deposition. Petitioner responded, and, in this posture, the issues raised are ripe for ruling. This matter also remains before the court for scheduling of an evidentiary hearing. For the reasons that follow, the government's motion is denied, and the court directs the parties to submit a joint report following completion of the deposition, regarding proposed dates for an evidentiary hearing.
On March 2, 2011, petitioner pleaded guilty, pursuant to a written plea agreement, to engaging in international travel to deal in firearms without a license, in violation of 18 U.S.C. § 924(n); and exporting firearms from the United States without a license, in violation of 22 U.S.C. §§ 2778(b)(2) and 2278(c), which offenses were charged as counts 11 and 28 of a second superseding indictment filed February 2, 2011. As part of the plea agreement, the government agreed to dismiss all remaining counts out of 50 offenses charged in the second superseding indictment. Petitioner was sentenced on January 10, 2012, before the Honorable Malcolm Howard, Senior United States District Judge, to a term of imprisonment of 120 months on each count to run concurrently for a total term of 120 months. Petitioner did not appeal.
Petitioner filed a motion to vacate, set aside, or correct sentence, under 28 U.S.C. § 2255, on January 11, 2013, asserting claims on the basis of ineffective assistance of counsel and prosecutorial misconduct. This case subsequently was reassigned to the undersigned to conduct all proceedings. Petitioner, with leave of court, filed a memorandum in support of the § 2255 motion on May 10, 2013, along with a sealed motion for discovery. On July 26, 2013, the government filed a motion to dismiss the § 2255 motion for failure to state a claim upon which relief can be granted.
The court referred these motions to a magistrate judge. On June 23, 2014, a magistrate judge scheduled an evidentiary hearing on the § 2255 motion for August 12, 2014. Petitioner filed on July 3, 2014, a motion asking the court to conduct a conference pursuant to CIPA Section 2 and to allow discovery in advance of the evidentiary hearing. Petitioner also filed a preliminary notice of intent to disclose classified information. That same date, in light of these developments, the court discontinued the pending evidentiary hearing and terminated the magistrate judge referral of the pending motions.
On July 14, 2014, the court granted in part and denied in part the government's motion to dismiss, dismissing petitioner's prosecutorial misconduct claim and allowing petitioner's ineffective assistance of counsel claim to proceed. The court denied without prejudice petitioner's motion for CIPA Section 2 conference, and denied petitioner's motion for discovery except to the extent set forth in the court's order. Specifically, the court directed the parties to confer and engage in discovery on the following four topics, as pertinent to one prong of petitioner's ineffective assistance of counsel claim:
(DE 146 at 14-15) (emphasis added). The court deferred scheduling of evidentiary hearing until completion of the discovery ordered.
On August 14, 2014, upon review of the parties' proposed discovery scheduling order, and the government's motion for reciprocal discovery, the court directed the parties to engage in a first phase of discovery, for 30 days thereafter, including disclosure of potential witnesses, and written discovery related thereto. The court directed the government to file a notice thereafter stating whether it intended to conduct any depositions without payment of expenses and fees of petitioner's counsel, as noted in dispute at that time.
In order entered November 19, 2014, the court noted that the government had filed a notice stating that it did not intend to conduct any depositions, and the court addressed two outstanding issues noted by petitioner in response. First, petitioner requested setting of an evidentiary hearing no sooner than mid-January, 2015, due to a scheduling conflict. Second, petitioner noted he had sought deposition of Assistant United States Attorney Jane Jackson, but that the government had stated it would move to quash such deposition based upon applicable privileges, rules of evidence, and rules of civil procedure. Petitioner thus requested sufficient time in advance of an evidentiary hearing to permit time for resolution of the government's anticipated motion to quash. The court directed the government to file an appropriate motion to quash or for protective order, and response by petitioner.
On November 21, 2014, the government filed its motion to quash the notice of deposition of Ms. Jackson and a memorandum in support thereof. Petitioner filed a response on December 1, 2014.
In a § 2255 matter, "[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Criminal or Civil Procedure, or in accordance with the practices and principles of law." Rules Governing § 2255 Proceedings, Rule 6(a), 28 U.S.C.A. foll. § 2255. Parties requesting "discovery must provide reasons for that request," "include any proposed interrogatories and requests for admission," and "specify any requested documents."
The Advisory Committee Notes to Rule 6 recognize that "[t]his rule contains very little specificity as to what types and methods of discovery should be made available to the parties in a habeas proceeding, or how, once made available, these discovery procedures should be administered." Rules Governing Section 2254 Cases, Rule 6 cmt. (1976) (made applicable to Rules Governing Section 2255 Cases, Rule 6 cmt. (1976)).
The Federal Rules of Civil Procedure allow a party, by oral questions, to "depose any person, including a party, without leave of court [.]" Fed. R. Civ. P. 30(a)(1). However, "[t]he court must limit the frequency or extent of discovery . . . if it determines that the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; the party seeking the discovery has had ample opportunity to obtain the information by discovery in the action; or the burden or expense of the proposed discovery outweighs its likely benefit. . . ." Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii).
In order to establish good cause for a protective order prohibiting a deposition, the movant must make "a specific demonstration of facts in support of the request as opposed to conclusory or speculative statements about the need for a protective order and the harm which would be suffered without one."
The government asserts several grounds in support of its motion to quash, which the court finds unavailing under the circumstances of this case. As an initial matter, the government proposes quashing the notice of deposition under the standard for quashing or modifying a subpoena, under Rule 45(d)(3)(A). Petitioner was not required to serve Ms. Jackson with a subpoena for purposes of taking her deposition in preparation for the evidentiary hearing in this § 2255 matter. While Rule 34 authorizes a party to issue subpoenas to non-parties, Rule 30 authorizes a party to depose parties. Ms. Jackson, as an attorney for the government, is an agent or employee of the United States, a party to this § 2255 case.
In any event, the court considers the grounds raised for quashing petitioner's notice and finds them unavailing either as applied to a subpoena or notice of deposition. The government first opposes the notice of deposition on the basis that it "seeks information that is protected by attorney-client privilege, prosecution privilege, deliberative process privilege, and as attorney work-product." (DE 154 at 3). The government does not elaborate on any of these claims of privileges, and none of these general claims of privilege are sufficient under present circumstances to quash the deposition in its entirety. As set forth in the court's prior orders, and as emphasized above, the scope of discovery in this matter in advance of evidentiary hearing is circumscribed. The deposition of Ms. Jackson properly may be limited to testimony concerning "[c]ommunications between the prosecution and petitioner and his counsel (both Edwards and/or Zeszotarski) during the course of the underlying criminal case." (DE 146 at 14) (emphasis added). So limited, a deposition of Ms. Jackson need not cover information protected by attorney-client privilege, prosecution privilege, deliberative process privilege, or attorney work-product. Rather, the deposition need only concern communications between Ms. Jackson and Mr. Edwards and Mr. Zeszotarski.
In particular, in summarizing the testimony sought, petitioner points to the court's July 14, 2014, order, as well as the government's interrogatory response, for a summary of Ms. Jackson's anticipated testimony. The information summarized in the government's interrogatory response is limited, and does not appear to implicate the privileges raised by the government. For example, the government states the following in interrogatory response:
(DE 154-1 at 3-4). Further, the government states:
(DE 154-1 at 4-5). In sum, based on the limited scope of discovery allowed, as well as the summary of anticipated testimony, the privileges generally stated by the government do not provide a basis for quashing deposition of Ms. Jackson.
The government next argues that the deposition imposes an undue burden, considering such factors as relevance, the need of the requesting party for the testimony, and the breadth of the request. Concerning relevance, the government argues that proposed testimony is not relevant because it does not bear on whether petitioner's trial counsel failed to properly advise his client of the availability of the public authority defense. The court, however, previously set forth the relevance of information and testimony concerning "[c]ommunications between the prosecution and petitioner and his counsel (both Edwards and/or Zeszotarski) during the course of the underlying criminal case." (DE 146 at 14). Ms. Jackson's proposed testimony bears directly on this issue identified in the court's order, and thus is highly relevant. In addition, Ms. Jackson's testimony could provide a critical counterpoint to testimony by Mr. Edwards concerning the extent and nature of his communications with the government, thus enabling a more accurate evaluation of the credibility of Mr. Edwards' and petitioner's potential testimony.
Concerning need for the testimony and the breadth of the request, the government argues that the full extent of Ms. Jackson's knowledge regarding the availability of the public authority defense has already been disclosed in the above-quoted interrogatory responses. Contrary to the government's argument, however, the interrogatory responses confirm and support petitioner's need for further deposition of Ms. Jackson. They confirm that Ms. Jackson has relevant information regarding the key issue concerning communications between the prosecution and defense counsel. They support petitioner's need for deposition because they provide only a summary of such testimony, instead of the testimony itself.
As a final matter, the government notes that "it has not begun the process of obtaining the requisite authority to allow the deposition of AUSA Jackson as outlined in
As noted by the government, "[i]n
Under pertinent Department of Justice regulations,
28 C.F.R. § 16.23. In turn, § 16.26(a) sets forth permissive factors as follows:
28 C.F.R. § 16.26(a). By contrast, § 16.26(b) sets forth restrictive factors as follows:
28 C.F.R. § 16.26(b).
Considering potential application of these factors in this case, in light of the relevance of Ms. Jackson's testimony concerning her communications with trial counsel, the deposition is appropriate under the rules of procedure governing the case or matter in which the demand arose. Further, due to the limited nature of the information sought, the deposition is appropriate under the relevant substantive law concerning privilege. Finally, the government has identified no reason why any of the restrictive factors in § 16.26(b) would apply. Indeed, for example, as set forth in the court's July 2014, order, there is no need at this stage of the case for inquiry into classified information or investigatory records that would interfere with enforcement proceedings.
In sum, the government has not identified any valid basis to quash the notice of deposition of Ms. Jackson, where such deposition is conducted within the subject matter limitations as set forth in this order. The government shall make Ms. Jackson available for video deposition, as noticed by petitioner, within 40 days of the date of this order, or at such time thereafter as the parties mutually agree. The parties shall provide joint notice to the court within 14 days of completion of the deposition of Ms. Jackson, including three proposed dates for holding evidentiary hearing in this matter.
Based on the foregoing, the government's motion to quash (DE 153) is DENIED. The government is DIRECTED to make Ms. Jackson available for video deposition, as noticed by petitioner, within 40 days of the date of this order, or at such time thereafter as the parties mutually agree. The parties shall provide joint notice to the court within 14 days of completion of the deposition of Ms. Jackson, including three proposed dates for holding evidentiary hearing in this matter.
SO ORDERED.
