1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AGONAFER SHIFERAW, Case No. 18-cv-06830-SBA (JSC)

8 Plaintiff, ORDER RE: DISCOVERY DISPUTE v. 9 Re: Dkt. No. 106 10 CITY AND COUNTY OF SAN FRANCISCO, et al., 11 Defendants.

12 13 Agonafer Shiferaw (“Plaintiff”) brings this action against the City and County of San 14 Francisco (“the City”) and various individuals (“Individual Defendants”)1 alleging that he was 15 denied an equal opportunity to own and operate the Fillmore Heritage Center (“the Center”) in San Francisco. This matter has been referred to the undersigned magistrate judge for the purposes of 16 discovery. (Dkt. No. 68.) Now pending before the Court is the parties’ joint letter brief regarding 17 Plaintiff’s request to take the deposition of the City’s mayor, London Breed (“Mayor Breed”). 18 (Dkt. No. 106.) Having considered the parties’ filings, the Court GRANTS the Plaintiff's request 19 for an order compelling the deposition of Mayor Breed subject to the limitations described below. 20 DISCUSSION 21 Plaintiff claims that the City’s Request for Proposals (“RFP”) bidding process for the 22 Center was nothing more than a “sham” intended to steer the Center to Mayor Breed’s political 23 allies and supporters. See (Dkt. No. 106 at 7.)2 In 2017, when the City cancelled the RFP bidding 24

25 1 The Individual Defendants are Mayor London Breed (“Mayor Breed”); Rev. Amos Brown (“Rev. Brown”); Joaquin Torres (“Torres”), Director of the Mayor’s Office of 26 Workforce and Economic Development; Naomi Kelly (“Kelly”), the City Administrator; and San Francisco Supervisor Vallie Brown (“Supervisor Brown”). 27 2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 1 process, Mayor Breed was then the President of the Board of Supervisors. (Id. at 5.) Plaintiff 2 alleges that she used this position to personally involve herself in the fate of the Center—before, 3 during, and after the RFP process. (Id. at 7.) Both parties agree that Mayor Breed is a high-level official whose testimony invokes the “apex” deposition doctrine. (Id. at 3–4, 8.) 4 Legal Standard 5 The Court may limit discovery “to protect a party or person from annoyance, 6 embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). The Supreme 7 Court recognized the need to limit the number of subpoenas served on high-ranking government 8 officials in United States v. Morgan.

(1941). Following Morgan, courts 9 have developed limits on deposing individuals that are at the “apex” of government, holding that 10 these depositions may be barred under Rule 26(c) when the discovery “can be obtained from some 11 other source that is more convenient, less burdensome, or less expensive.” Andrich v. Dusek, No. 12 CV-17-00173-TUC-RM,

, at *2 (D. Ariz. July 2, 2019) (quoting Apple Inc. v. 13 Samsung Elecs. Co.,

(N.D. Cal. 2012)). In particular, the Ninth Circuit has 14 ruled that “[h]eads of government agencies are not normally subject to deposition.” Kyle Eng'g 15 Co. v. Kleppe,

, 231 (9th Cir. 1979) (internal citation and quotation marks omitted). 16 This rule applies to mayors. Harmston v. City & Cty. of San Francisco, No. C 07-01186SI, 2007

, at *1 (N.D. Cal. Nov. 6, 2007), order clarified, No. C07-01186SI,

18 (N.D. Cal. Jan. 29, 2008). 19 Nonetheless, “[a] party seeking to prevent a deposition carries a heavy burden to show why 20 discovery should be denied.” Apple Inc.,

(citations omitted). “When determining whether to allow an apex deposition, courts often consider (1) whether the deponent 21 has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) whether 22 the party seeking the deposition has exhausted other less intrusive discovery methods.” In re 23 Google Litig., No. C 08-03172 RMW PSG,

, at *2 (N.D. Cal. Oct. 19, 2011) 24 (citations omitted). But, there is “no absolute requirement that a party exhaust all alternative, ‘less 25 burdensome’ means of discovery before proceeding with the deposition of a high ranking 26 government official.” Eng v. City of Los Angeles, No. CV 05-2686 MMM,

at 27 *9 (C.D. Cal. Apr. 5, 2007). Moreover, a claimed lack of knowledge or the fact that an apex 1 witness has a busy schedule are not bases for denying otherwise proper discovery. In re Google

WL 4985279, at *2 (citations omitted). 3 Analysis The City has not met its burden of showing that extraordinary circumstances warrant an 4 order precluding Mayor Breed’s deposition. 5 First, Plaintiff has demonstrated a likelihood that Mayor Breed has unique first-hand, non- 6 repetitive knowledge of relevant facts. Prior to the RFP bidding process, Plaintiff agreed to buy 7 the Center from Michael Johnson for 6.5 million dollars, and their letter of intent was delivered to 8 then-Supervisor Breed. (Dkt. No. 92 at ¶ 71); see (Dkt. No. 92-4, Exhibit D.) Plaintiff also met 9 with Mayor Breed and Defendants Torres and Brown to discuss the future of the Center. (Id. at ¶ 10 74.) After the RFP bidding process began, Mayor Breed told a luncheon at the Marriott Hotel that 11 she would make the final decision regarding the fate of the Center. (Id. at ¶ 92.) Mayor Breed 12 also used her personal e-mail address to offer a tour of the Center to Dr. Bates. (Dkt. No. 106-5, 13 Exhibit E.) A number of witnesses may be able to testify about the RFP process and the City’s 14 decision to sell the Center, but Plaintiff is entitled to inquire whether Mayor Breed had a 15 particular, personal role in the sale of the Center and, if so, what is was. See Finisar Corp. v. 16 Nistica, Inc., No. 13-CV-03345-BLF(JSC),

, at *3 (N.D. Cal. June 30, 2015). 17 Therefore, Mayor Breed may have unique, non-repetitive knowledge about the RFP process and 18 how the fate of the Center was determined. 19 Second, Plaintiff’s failure to propound interrogatories on Mayor Breed or engage in “less 20 intrusive” means of discovery does not mean that Mayor Breed’s deposition should not be taken. Plaintiff is not seeking to depose Mayor Breed regarding facts that are immaterial to the present 21 case. Cf. Harmston,

, at *2. Likewise, Plaintiff is not seeking Mayor Breed’s 22 deposition for matters about which she lacks personal knowledge. Cf. Kyle Eng'g Co., 600 F.2d at 23 231. Plaintiff’s allegations regarding Mayor Breed’s role in the decision to sell the Center are not 24 well-suited for written interrogatories, and “when a witness has personal knowledge of facts 25 relevant to the lawsuit, even a [mayor] is subject to deposition.” In re Google Litig.,

4985279, at *2 (citations omitted). 27 1 In sum, this is not a case where a high-level official has little or no knowledge of the 2 || issues. To the contrary, Plaintiff has made a plausible showing that Mayor Breed may have first- 3 || hand knowledge of relevant matters as a percipient witness. Mayor Breed’s busy schedule and 4 || claimed lack of knowledge are not a sufficient basis for denying her deposition; the pressing needs 5 of her job, however, are a basis for accommodating her schedule. Accordingly, the deposition 6 shall not exceed three hours, must be taken remotely, and, at the Mayor’s discretion may be taken 7 in the evening or on a weekend. This Order disposes of Docket No. 106. 8 9 IT IS SO ORDERED. 10 Dated: 11

JACQUELINE SCOTT CORLE United States Magistrate Judge 5 14 15 16

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