UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VALERIE KLINE,

Plaintiff,

v. Civil Action No. 10-1802 (RWR) (AK) JOHN BERRY, Director, Office of Personnel Management,

Defendant.

MEMORANDUM OPINION

Many discovery motions have been filed with the Court in this case. This memorandum

opinion addresses Defendant’s Motion for a Protective Order to Preclude the Deposition of

Richard Lowe and Special Agent Derek Holt [37] (“Def.’s Mot.”) and Plaintiff’s Motion to Stay

Depositions and Motion for Order on Related Matters [38] (“Pl.’s Mot.”). Plaintiff seeks to

depose five individuals, Derek Holt, Richard Lowe, Claudio Benedi, Stephen Hickman and Janet

Smith. (Pl.’s Mot. at 1.) Plaintiff originally scheduled the depositions on May 8-10, 2012, with

Mr. Holt and Mr. Lowe being the first two depositions. (Id.) Defendant filed its Motion for a

Protective Order on the evening of May 4, 2012 and the depositions were postponed until a

ruling on Motion for a Protective Order could be reached.1

1 Although Defendant does not object to Plaintiff deposing Mr. Benedi, Mr. Hickman and Ms. Smith, Plaintiff expressed a desire to depose Mr. Holt and Mr. Lowe prior to deposing the other individuals, leading to the postponement of all five depositions.

-1- I. BACKGROUND

This case is an employment discrimination action based on Plaintiff Valerie Kline’s

(“Plaintiff” or “Ms. Kline”) employment at the Office of Personnel Management (“OPM”) as a

Management Analyst in the Publications Management Group. (Amended Compl. [3] at ¶ 1.)

Plaintiff was hired into that role in 2002. (Id. at ¶ 13.) On March 29, 2006, Plaintiff’s superiors

received an e-mail raising concerns that, among other allegations, Ms. Kline was using her work

computer inappropriately and was attempting to procure weapons and ammunition from someone

she knew online. (Decl. of Inspector General Patrick E. McFarland [37-1] at ¶ 4; Pl.’s Opp. to

Mot. For Protective Order [44] at 6.) Plaintiff was placed on paid administrative leave on April

5, 2006 pending an Office of the Investigator General (“OIG”) investigation. (Id. at ¶ 5.)

Plaintiff returned to work on June 20, 2006. (Amended Compl. at ¶ 45.)

Plaintiff’s Amended Complaint includes five counts. First, Plaintiff alleges that she was

discriminated against on the basis of race and sex when she was placed on administrative leave.

(Id. at ¶ 62.) Second, Plaintiff alleges that she was placed on administrative leave in retaliation

for filing EEO complaints against her superiors that were pending as of April 2006. (Id. at ¶ 64.)

Third, Plaintiff alleges that, upon returning from administrative leave, her duties were

diminished, moving from regulatory work and graphics projects to routine, administrative and

clerical duties. (Id. at ¶ 66.) Fourth, Plaintiff alleges that she was discriminated against on the

basis of sex when her regulatory duties were given to a male employee. (Id. at ¶ 68.) Fifth,

Plaintiff alleges that she was retaliated against when, upon returning from administrative leave,

she did not have the same equipment and software that she had prior to being placed on

administrative leave. (Id. at ¶ 70.)

-2- II. STANDARD OF REVIEW

Courts have broad discretion to resolve pending discovery matters. Fed. R. Civ. P.

26(b)(2)(C) (requiring the court to limit extent of discovery when “the burden or expense of the

proposed discovery outweighs its likely benefit); see also Nu Image Inc.v. Does 1-22, 322,

(D.D.C. 2011). This discretion extends to Rule 26(c), under which “the court

may, for good cause, issue an order to protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense, including . . . forbidding inquiry into certain matters, or

limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1). The

party seeking the protective order has the burden of showing the good cause required by Rule

26(c). Alexander v. FBI,

(D.D.C. 1998). Generally, courts regard the

complete prohibition of a deposition as an “extraordinary measure [] which should be resorted to

only in rare occasions.”

III. DISCUSSION

A. Special Agent Derek Holt

Defendant wishes to limit the scope of deposition questions asked of Derek Holt. (Def.’s

Mot. at 1.) Agent Holt works for the Office of Inspector General (“OIG”) and was the agent who

handled the investigation into the allegations about Plaintiff. (Id. at 11.) The OIG issued a report

regarding the investigation, and Plaintiff has seen that report, with some redactions. (Id. at 14.)

Defendant does not seek a protective order preventing the deposition of Agent Holt; rather, it

seeks to limit the scope of the deposition, preventing Plaintiff from inquiring about OIG

investigations generally, and how the investigation was conducted in this case. (Def.’s Mot. at

-3- 15-16; Def.’s Reply at 4-5.) These topics include: (1) OIG’s procedures for conducting

investigations, (2) the decision-making process in determining the focus of investigations and (3)

the process by which reports are finalized. (Id. at 16.)

In her opposition to Defendant’s motion, Plaintiff states that:

[b]y deposing [Agent] Holt, Plaintiff will seek to discover the truth about [Agent] Holt’s findings and obtain evidence to support a finding that he failed to thoroughly and impartially investigate allegations unrelated to the weapons allegations, that he did not have the evidence to support many of his conclusions propounded in his report, and that he exceeded his authority and the scope of the investigation by reporting on matters that were nonprobative, irrelevant, inaccurate, and highly prejudicial.

(Pl.’s Opp. at 16.) Plaintiff takes issue with some of Agent Holt’s statements in the report,

stating that they “are generalizations based on stereotypical prejudices and not supported by

fact,” including “prejudicial statements about [Plaintiff’s] website.” (Id. at 15-16.) Finally,

Plaintiff is looking to obtain the identity of the informant whose e-mail triggered the

investigation. (Id. at 9.)

Defendant relies upon the “law enforcement investigative privilege” to support a

limitation on the scope of Agent Holt’s deposition. (Def.’s Mot. at 15.) The law enforcement

investigative privilege is a qualified privilege. In re Sealed Case,

(D.C. Cir.

1988). To assert the privilege, an agency must: (1) submit a formal claim of privilege by the

head of the department that has control over the information; (2) assertion of the privilege must

be based on actual personal consideration by that official; and (3) the information for which the

privilege is claimed must be specified, with an explanation of why it properly falls within the

scope of the privilege. In re Sealed Case,

; Singh v. South Asian Society of

George Washington University, 06-cv-574,

, *3 (D.D.C. May 24, 2007).

-4- In support of limiting Agent Holt’s deposition, Defendant submits a declaration from the

Inspector General Patrick E. McFarland, who identified the information to be withheld and the

justifications for withholding the information. (Decl. of Patrick McFarland, [37-1] at 3-5.) The

OIG is the department that has control over the information and Mr. McFarland stated he was the

decision maker in determining the privileged information. Thus the first two requirements for

the privilege are satisfied.

Looking at the third requirement, an evaluation of the public interest in nondisclosure

against the requester’s need for the information, courts generally use a balancing test involving

ten factors. Tuite v. Henry,

(D.C. Cir. 1996). These factors are:

(1) The extent to which disclosure of an informant will thwart governmental processes by discouraging citizens from giving the officials information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff’s case.

. Here, the factors weigh against Agent Holt being deposed about OIG’s

practices and procedures. Plaintiff wants to inquire into the details of the investigation itself;

specifically, who Agent Holt spoke to; what facts he gathered; and how he, and OIG in general,

used those facts to arrive at the conclusions in the report. (Pl.’s Opp. at 9-11.) Plaintiff

requested that Agent Holt bring to the deposition “any files, notes, print outs of web pages or

-5- other documents to refresh your memory concerning the contents of the [OIG Report].” (Def.’s

Mot. at 18.) Disclosure of the details of the investigation would have a chilling effect on

individuals cooperating with future investigations and on OIG’s analysis of the collected

information when coming to its conclusions. See Jones v. City of Indianapolis,

(S.D. Ind. 2003) (release of information through deposition of police sergeant who

conducted investigation into potential police misconduct would have chilling effect on witnesses

revealing information in future investigations); Haber v. Evans, 03-cv-3376,

(E.D. Pa. May 4, 2004) (finding privilege applies to OIG investigative files to protect

government sources and enhance effectiveness of investigative techniques and procedures).

Allowing OIG to investigate allegations of wrongdoing knowing that the contents of the

investigation will remain confidential is a strong public interest.

Moreover, the importance of the information sought through Agent Holt’s deposition to

Plaintiff’s case is marginal. Two of Plaintiff’s claims allege that she was improperly placed on

administrative leave. It was neither Agent Holt, nor the OIG’s decision to place Plaintiff on

administrative leave. (See Compl. ¶ 35; Pl.’s Opp. at 6-7.) Plaintiff states in the Complaint that

her supervisors at OPM, Mr. Davis and Mr. Benedi, were ultimately responsible for the decision

to place Plaintiff on administrative leave. (See Compl. at ¶ 36.)

Plaintiff’s last three claims address her diminution of duties after returning from

administrative leave. As noted above, Agent Holt conducted the investigation and was not

responsible for determining Plaintiff’s duties once she returned from leave. In his role as

investigator for the OIG, no evidence suggests that he would have any information relevant to

Plaintiff in her pursuit of these three claims. See Jones,

(the official who

-6- conducted the investigation does not have meaningful information about the case beyond

information pertaining to the investigation).

Some factors weigh in favor of disclosure: the investigation is complete, no disciplinary

proceedings have arisen from the investigation, Plaintiff’s suit is non-frivolous. However, the

potential chilling effect on future investigations and the apparent marginal importance of the

information to Plaintiff’s claims overcome the favorable factors and weigh against disclosure.

Accordingly, Plaintiff may depose Agent Holt about the contents of the OIG Report and

the meaning of any language contained in the report. Agent Holt may assert the law enforcement

investigatory privilege regarding OIG’s investigative procedures including the identity of the

informant, the actions taken by Agent Holt and OIG to conduct the investigation, the contents

and sources of any information obtained that is not included in the report and the facts used to

come to the conclusions in the report.

B. Richard Lowe

Plaintiff also wants to depose Richard Lowe (“Mr. Lowe”). Mr. Lowe was the Deputy

Chief of Staff at OPM at the time Plaintiff was placed on administrative leave and now is the

Director, Executive Secretariat & Ombudsman (“ES&O”), OPM. (Def.’s Mot. at 1.) Defendant

wants to preclude Plaintiff from deposing Mr. Lowe, claiming that he is a “high-ranking official”

and that information obtained by deposing Mr. Lowe would not lead to the discovery of

admissible evidence under Rule 26(b)(1). (Id.)

-7- 1. High-Ranking Official

A protective order should be granted if (1) an individual is high-ranking and (2) the

movant’s concern of harm to the official outweighs the adversary’s significant interest in

preparing for trial. Byrd v. Dist. of Columbia,

(D.D.C. 2009) (Kay, J.) (citing

Low v. Whitman,

(D.D.C. 2002) (Facciola, J.)). Examples from previous

cases are the best guidance in defining “high-ranking.” See Low,

. In Byrd, the

undersigned held that the Deputy Mayor of the District of Columbia and the General Counsel for

the D.C. Department of Youth and Rehabilitation Services were not “high-ranking officials.”

. In Low, the court found that the Deputy Chief of Staff of the United States

Environmental Protection Agency (“EPA”) was a “high-ranking official.”

.

Other examples of “high-ranking officials” include the Mayor of the District of Columbia,

Alliance for Global Justice v. Dist. of Columbia, No. 01-cv-811,

(D.D.C. July

29, 2005); United States Senators, Bardoff v. United States,

(D.C. 1993); and close

assistants to the President of the United States. Alexander v. F.B.I.,

(D.D.C.

1998).

The rationale behind prohibiting the depositions of “high-ranking officials” is to allow

high-level public servants to spend their valuable time performing their duties rather than

preparing for and testifying in depositions, unless the individual has some relevant personal

knowledge about the subject matter. See Byrd,

; Low,

. Such

high-ranking officials are also likely to be subject to a high volume of lawsuits, either as a named

individual or on behalf of an agency. Accordingly, “it is the current position [of the official], and

not the former position, that is evaluated.” Byrd,

.

-8- Although Mr. Lowe is an important individual within OPM, he does not qualify as a

“high-ranking official.” Mr. Lowe is currently the Director, Executive Secretariat &

Ombudsman, OPM. Defendant states that “Mr. Lowe’s office is located in the Director’s suite

and he reports directly to the Director of OPM while managing the day-to-day operations of the

ES&O.” (Def.’s Mot. at 13.) While Mr. Lowe may work in the Director’s suite and report to the

Director, the chart of the OPM organizational structure does not list him under the Office of the

Director.2 Rather, the ES&O is one of many subdivisions of OPM and certainly many

individuals report directly to the Director of OPM. The movant has not presented evidence of

substantial harm to Mr. Lowe that would preclude Plaintiff from conducting his deposition.

2. Discovery of Admissible Evidence

Defendant also argues that Mr. Lowe has no direct knowledge of Plaintiff’s claims, and

therefore his deposition will not lead to the discovery of admissible evidence. Fed. R. Civ. P.

26(b)(1); (Def.’s Mot. at 7.) Plaintiff asserts three subjects where Mr. Lowe has relevant

knowledge that Plaintiff cannot obtain from other sources. First, Plaintiff alleges that she had

“substantial contact with Mr. Lowe’s office” prior to being placed on administrative leave, but no

contact with his office upon her return, showing a diminution of duties. (Pl.’s Opp. at 27.)

Second, Plaintiff asserts that Mr. Lowe told Mr. Benedi to keep Plaintiff out of the Director’s

suite. (Id. at 28.) Third, Plaintiff notes that the regulatory issuances program was transferred to

the ES&O, which Mr. Lowe directs, and Plaintiff believes that she should have been transferred

to the ES&O. (Id. at 22, 27-28.) She argues that she was not transferred to the ES&O because of

2 http://www.opm.gov/about_OPM/reorg-2010/orgchart.pdf

-9- the “stigma” associated with being placed on administrative leave. (Id. at 22.) (Id.)

Plaintiff alleges that she had substantial contact with the Director’s suite but lost such

contact after being placed on administrative leave and deposing Mr. Lowe could lead to the

discovery of admissible evidence because it affected her claim of diminution of duties.

Plaintiff’s allegation creates a horse and cart issue as to whether the lack of access to the

Director’s suite was itself a diminution of duties or whether it was the result of Plaintiff’s duties

being diminished to the point where she no longer had any reason to have contact with the

Director’s suite. Despite that issue, Plaintiff may inquire with Mr. Lowe about her contact with

the Director’s suite in performing her job duties and about whether Mr. Lowe directed Mr.

Benedi to exclude Plaintiff from the Director’s suite.

In contrast, questions regarding the transfer of the regulatory issuances program to the

ES&O are not relevant to Plaintiff’s claims. Plaintiff argues that she was not transferred to the

ES&O because she was placed on administrative leave; however, Plaintiff does not specify why

being placed on administrative leave caused her to be stigmatized and thus, not transferred.

Moreover, the transfer of the regulatory issuances program to the ES&O took place in 2011,

approximately five years after Plaintiff returned from administrative leave. (Def.’s Mot. at 8.)

Mr. Lowe was not involved in the decision to place Plaintiff on administrative leave, and has

never been in Plaintiff’s chain of command. (Id.) Any diminution of duties that occurred after

Plaintiff returned from administrative leave would have happened closer to the date of her return

and would not have involved Mr. Lowe. The suggestion that the administrative leave was the

cause of Plaintiff not being transferred to ES&O is speculative given the time lapse and

-10- accordingly, Plaintiff may not ask Mr. Lowe about the transfer of the regulatory issuances

program to ES&O.

The Court having found that Mr. Lowe is not a “high-ranking official” and might have

knowledge of some information that could lead to admissible evidence, Plaintiff should not be

precluded from deposing Mr. Lowe. Given that discovery has already closed in this case and that

Plaintiff is limited in the topics on which she can depose Mr. Lowe, the Court will limit Mr.

Lowe’s deposition to no more than two hours.

IV. PLAINTIFF’S MOTION TO STAY DEPOSITIONS

Plaintiff makes a number of requests in her Motion to Stay Depositions [38].

Specifically, her Motion to Stay the Depositions scheduled on May 9 and 10, 2012 will be denied

as moot, given the findings of this memorandum opinion and accompanying order. Plaintiff’s

Motion to Extend Discovery for the purpose of conducting the depositions will be denied.

Plaintiff noticed the depositions prior to the close of discovery; therefore, she may take the

depositions after the date for the close of discovery has passed. This memorandum opinion and

accompanying order does not preclude Plaintiff from deposing either Mr. Lowe or Agent Holt,

and accordingly, Plaintiff’s Motion to depose additional witnesses other than Agent Holt and Mr.

Lowe will be denied. Finally, Plaintiff’s request that the Court order Defendant to make the

deponents available will be denied. The Court trusts that the parties can arrange convenient

times to take the depositions.

-11- V. CONCLUSION

Defendant’s Motion for a Protective Order will be granted-in-part and denied-in-part.

Plaintiff may depose Agent Holt and Mr. Lowe, subject to the limitations outlined above. A

separate order will accompany this memorandum.

DATE: June 25, 2012 /s/ ALAN KAY UNITED STATES MAGISTRATE JUDGE

-12-