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Jackson Municipal Airport Authority v. Bryant

United States District Court, S.D. Mississippi, Northern Division

July 20, 2018

JACKSON MUNICIPAL AIRPORT AUTHORITY, ET AL. PLAINTIFFS
v.
GOVERNOR PHIL BRYANT, ET AL. DEFENDANTS

          ORDER

          F. KEITH BALL UNITED STATES MAGISTRATE JUDGE.

         Before the Court are two motions, both concerning potential deposition witnesses Joey Songy, Bobby Morgan, and Alice Perry. Plaintiffs have filed a motion to compel [255] their depositions, while Governor Bryant seeks to prevent them via a motion for protective order [261]. As an initial matter, the Court denies Plaintiffs' motion to compel [255] as premature, because the Court cannot compel depositions for which a proper notice of deposition has not been served. See Byrd v. Castlepoint Fla. Ins. Co., No. CV 15-634-BAJ-RLB, 2016 WL 1559584, at [*]2 (M.D. La. Apr. 18, 2016). However, because the two motions involve the same witnesses, factual circumstances, and questions of law, the Court also considers the briefing and exhibits submitted with regard to Plaintiffs' motion to compel [255] in deciding Governor Bryant's motion for protective order [261]. For the reasons described below, the Court finds that Governor Bryant's motion for protective order [261] should be granted in part, and denied in part.

         Facts and Procedural History

         This case concerns governance of the Jackson-Medgar Wiley Evers International Airport (“Jackson-Evers Airport”). The Jackson Municipal Airport Authority (“JMAA”) currently oversees the airport.[1] Plaintiffs, including the JMAA and its Board of Commissioners, challenge the legality of Mississippi Senate Bill 2162 (“SB 2162”), which would abolish the JMAA and replace it with a new entity, the Jackson Metropolitan Area Airport Authority.[2] The Complaint alleges, inter alia, that Defendants, through passage of SB 2162, violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. See [42] at 39-49. More specifically, the Complaint states, “Plaintiffs, in their individual capacities and as citizens and taxpayers of the City of Jackson and the State of Mississippi, . . . allege that Senate Bill 2162 was based, either in whole or in part, on discriminatory purposes.” Id. at 41.

         In his Fed.R.Civ.P. 26 initial disclosures, Governor Bryant did not specifically identify individuals with personal knowledge of Plaintiffs' claims. [255-4] at 1-2. Instead, he listed several categories of individuals, including “[a]ny individuals identified in documents produced, or otherwise identified in discovery in this action.” Id. at 2. In his interrogatory responses, Governor Bryant identified “persons . . . identified in the documents produced by the parties . . . and in the documents Bates labeled DEF 000151-003001” as having “discoverable knowledge that would tend to support or refute any claim, defense, or element of damages in this action.” [255-7] at 2. Governor Bryant produced documents Bates Numbered 002940 and 002949-52 that identify Joey Songy, Bobby Morgan, and Alice Perry as employees in the Governor's Office who either wrote or received emails or memoranda related to SB 2162 prior to its passage. See [255-6] at 2-6.

         Plaintiffs took the Fed.R.Civ.P. 30(b)(6) deposition of Governor Bryant's Office. [255-1] at 2. The Governor's Office designated Drew Snyder, Governor Bryant's then-Deputy Chief of Staff, Policy Director, and Counsel, to testify on its behalf. Id., [260] at 2-3. Snyder testified that in preparation for the deposition, he met with Governor Bryant, Chief of Staff Joey Songy, Policy Adviser Bobby Morgan, and Senior Policy Advisor Alice Perry. [255-1] at 3-4. Songy, Morgan, and Perry confirm via affidavits that they met with Snyder prior to the 30(b)(6) deposition to review produced documents with him. [259-1] at 2-3; [259-2] at 2; [259-3] at 2. They each testify that they provided Snyder with “all the information [they] could recall which could conceivably be encompassed by the examination topics to ensure Mr. Snyder was fully prepared to testify as the Governor's Office's 30(b)(6) designee.” Id.

         According to Governor Bryant, “[s]everal questions [during the deposition] involved documents the Governor's Office generated in 2015, and communications involving the office's members during the 2016 Legislative Session - including Chief of Staff Joey Songy, policy adviser Bobby Morgan, and/or policy advisor Alice Perry.” [260] at 3. During the deposition, Snyder testified that prior to Governor Bryant signing SB 2162, Songy, Morgan, and Perry each had meetings or conversations concerning the Jackson-Evers Airport with individuals not employed within the Governor's Office. See [259-4] at 44-45 (discussing meeting Perry and Morgan had with representative of Southwest Airlines); id. at 46-47 (discussing meeting about SB 2162 that included Bobby Morgan and Senator Harkins, who introduced SB 2162); id. at 48-49 (discussing conversation between Bobby Morgan and Senator Harkins concerning SB 2162); id. at 32-33 (discussing conversation between Joey Songy and Senator Harkins in early January 2016); [266-1] at 4-5 (discussing possible conversations between Joey Songy and counsel for the Madison County Board of Supervisors regarding governance of the airport). Governor Bryant admits that “[i]n 2014, while serving as the Governor's economic development policy advisor, ” Songy developed a “concept” for “changing Jackson-Evers' governing structure . . . .” [260] at 11; see [259-4] at 21-31.

         After the 30(b)(6) deposition, Plaintiffs' counsel wrote to Governor Bryant's counsel, attempting to schedule the depositions of Songy, Morgan, and Perry. [260] at 4. Governor Bryant's attorney declined to make the three individuals available for depositions, contending that any allegedly relevant topics had already been addressed in the 30(b)(6) deposition and that the depositions would be unreasonably burdensome. [255-8] at 1. Subsequently, Plaintiffs filed their motion to compel [255], and the Governor filed his motion for protective order [261].

         Joey Songy

         “Under normal circumstances, the party seeking the protective order [to prevent a deposition] bears the burden of establishing good cause.” Freedom From Religion Found., Inc. v. Abbott, No. A-16-CA-00233-SS, 2017 WL 4582804, at *10 (W.D. Tex. Oct. 13, 2017), appeal dismissed, No. 17-50956, 2018 WL 1989629 (5th Cir. Mar. 14, 2018)(citing Landry v. Air Line Pilots Ass'n Int'l AFL-CIO, 901 F.2d 404, 435 (5th Cir. 1990)). “However, when a party seeks to depose a high-ranking government official, ‘exceptional circumstances' must exist before an involuntary deposition will be permitted.” Id. (citing In re F.D.I.C., 58 F.3d 1055, 1060 (5th Cir. 1995)). “Once the court has determined the government official qualifies as ‘high-ranking,' the burden shifts to the party seeking to depose the high-ranking official to demonstrate extraordinary circumstances.” Id. at *11 (citing Thomas v. Cate, 715 F.Supp.2d 1012, 1048 (E.D. Cal. 2010)). “Courts will generally only consider subjecting a high ranking government official to a deposition if the official has first-hand knowledge related to the claims being litigated and other persons cannot provide the necessary information.” Id. (citing Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007); Hernandez v. Tex. Dept. of Aging & Disability Servs., No. A-11-CV-856 LY, 2011 WL 6300852, at *2 (W.D. Tex. Dec. 16, 2011); Thomas, 715 F.Supp.2d at 1049).

         As the Governor's Chief of Staff, Joey Songy has a demanding schedule and substantial list of responsibilities. Songy testified that he frequently works eighty hours per week, has to travel in-state and out-of-state, supervises the Governor's staff, oversees the Governor's Office's fiscal management, and serves as the Governor's chief liaison to all of the state's executive and independent agencies. [259-1] at 1-2. He is responsible for Executive Branch crisis management and serves as the Governor's designee to the Mississippi Emergency Management Agency. Id. at 2. Given his position and responsibilities, the Court finds that Songy is a “high ranking government official” for purposes of the subject analysis. See In re F.D.I.C., 58 F.3d at 1060; see also Coleman v. Schwarzenegger, No. CIV S-90-0520LKKJFMP, 2008 WL 4300437, at *4 (E.D. Cal. Sept. 15, 2008)(holding that Chief of Staff to Governor of California is “high ranking government official” for deposition purposes); New York v. Oneida Indian Nation of New York, 2001 WL 1708804, at *3 (N.D. N.Y. Nov. 9, 2001)(finding similar position in New York to be high-ranking official).

         Synder's 30(b)(6) testimony demonstrates that Songy has first-hand knowledge related to considerations in the Governor's Office to change the governance structure of the Jackson-Evers Airport. In fact, Governor Bryant admits in his memorandum that

[i]n 2014, while serving as the Governor's economic development policy advisor, Mr. Songy thought changing Jackson-Evers' governing structure could help the struggling airport. By May 2015, members of the Governor's Office internally discussed ...

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