UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REPUBLICAN PARTY OF LOUISIANA, et al.,

Plaintiffs,

v. Case No. 15-cv-01241 (CRC-SS-TSC)

FEDERAL ELECTION COMMISSION,

Defendant.

OPINION AND ORDER

The Republican Party of Louisiana and two local party committees filed suit on August 3,

2015, seeking to invalidate certain portions of the Bipartisan Campaign Reform Act of 2002

(“BCRA”), and simultaneously filed an application to have the case heard before a three-judge

court. The Court granted Plaintiffs’ application on November 25, 2015 and entered a scheduling

order, which the parties had mutually proposed, setting January 29, 2016 as the close of

discovery. On January 8, 2016, Plaintiffs noticed a deposition of the Federal Election

Commission (“FEC”) under Federal Rule of Civil Procedure 30(b)(6), which provides for the

deposition of “a governmental agency.” On January 28, 2016—the day before discovery was set

to close—the FEC moved for a protective order and to quash the deposition notice on several

grounds. Because the Court finds the proposed deposition to be unduly burdensome to the FEC

in light of the limited evidentiary value of the information sought, the Court will grant the FEC’s

motion and quash the deposition notice.

1 I. The Dispute

Plaintiffs propose to have the FEC’s 30(b)(6) witness or witnesses testify as to 33

Matters for Examination. Specifically, Plaintiffs seek testimony on “[a]ny incidents or evidence

of CORRUPTION of a federal candidate resulting from” the types of activities in which

Plaintiffs seek to engage; evidence of quid pro quo exchanges by Presidents Bill Clinton and

George W. Bush and the Republican and Democratic National Committees; evidence of public

opinion regarding the causes of the appearance of quid pro quo corruption; studies the FEC has

relied on to determine what kind of election spending poses a risk of corruption; records of state

or local party committees that have established federal accounts or so-called Levin Funds

accounts; empirical evidence of the impact of BCRA on state or local party committees; the use

of nonfederal and federal money by political party committees; and a few additional matters.

See Pls.’ Ex. C (LAGOP’s 30(b)(6) Dep. Notice & Topics), ECF No. 30-4. The FEC takes the

position that it should not have to provide a 30(b)(6) witness and moves for a protective order

under Rule 26(c), which allows a court, “for good cause, [to] issue an order to protect a party or

person [against whom discovery is sought] from annoyance, embarrassment, oppression, or

undue burden or expense.”

II. The Parties’ Arguments

The FEC offers three main arguments in support of its motion to quash. First, it contends

that “[t]he deposition notice is improper because it purports to set a date”—February 4, 2016—

“outside of the period the Court has set for discovery.” Def.’s Mot. Quash 7. As Plaintiffs note,

however, the parties in early January discussed possible February deposition dates, including for

the deposition of the FEC’s expert witness, Professor Jonathan Krasno. Plaintiffs also noticed

the 30(b)(6) deposition on January 8, 2016—well before the close of discovery. The advance

2 notice and the FEC’s amenability to conducting depositions following the January 29 close of

discovery make its timeliness argument unpersuasive.

Second, the FEC insists that the deposition should “be disallowed because plaintiffs’ own

conduct and representations suggest that its primary purpose is to oppress and inflict undue

burden on the FEC while it prepares its defense of this case.” Id. at 8. This argument fares

better. As the FEC observes, Plaintiffs initially represented to the Court that they believed

“‘[d]iscovery [to be] unnecessary in this case (and should be denied if requested)’ because” their

suit involves “‘a simple fact pattern’ and ‘[t]he issues are legal.’” Def.’s Mot. Quash 4 (quoting

Pls.’ Mot. Expedite 3). Perhaps even more telling than those representations, Plaintiffs on

February 11, 2016—before the resolution of the motion to quash—filed their motion for

summary judgment, citing no discovery obtained from the FEC to date. “That filing,” the FEC

claims, “confirms what plaintiffs said until opposing this motion, namely that they do not require

discovery in order to present their case.” Def.’s Reply 2. Plaintiffs respond that “[d]iscovery is a

two-way street,” Pls.’ Opp’n 5, insisting that they need this deposition to obtain evidence

relevant to their central contention in this case: “that the challenged [BCRA] provisions are not

justified by the sole governmental interest, i.e., preventing narrowly defined quid-pro-quo

corruption,” id. at 4. Given, however, that Plaintiffs’ written discovery requests largely overlap

with their proposed 30(b)(6) matters for examination, compare Def.’s Ex. 3 (FEC’s Responses to

First Set of Disc. Reqs.), with Def.’s Ex. 4 (LAGOP’s 30(b)(6) Dep. Notice & Topics), and that

Plaintiffs have not seen a need to reference the FEC’s written responses in their motion for

summary judgment, the Court hesitates to credit Plaintiffs’ brand-new representation that a

30(b)(6) deposition is “pivotally important,” Pls.’ Opp’n 10.

3 Third, the FEC argues that the particular proposed deposition topics are improper for a

host of reasons: they are overbroad and burdensome; they ask about instances of “corruption,”

which the FEC does not directly regulate; they seek a distillation of already-public information;

they seek access to FEC counsel’s work product; they are cumulative with the written discovery

already served; and they generally seek information disproportionate to its evidentiary utility.

Def.’s Mot. Quash 10–15. Plaintiffs counter the FEC’s arguments primarily by pointing to an

order issued by a three-judge panel in McConnell v. FEC, Civ. No. 02-582 (CKK, KLH, RJL),

which largely denied the FEC’s motion for a similar protective order nearly fourteen years ago.

In that case, the FEC moved to quash a 30(b)(6) deposition notice—involving similar topics—

that it also considered to be unduly burdensome and duplicative of written discovery requests.

The Court rejected “the FEC’s assertion that the documentary evidence it ha[d] produced should

be deemed an adequate substitute for a 30(b)(6) deposition” as “contrary to the purpose behind

such depositions and inconsistent with sound litigation practice.” Pls.’ Ex. A (Order Denying in

Part FEC’s Motion to Quash) 7. The Court further found the following three categories of topics

to be germane to the questions presented in that case and appropriate for deposition:

• Topics Seeking to Elicit the Identification of the Government Interests BCRA Allegedly Furthers and Those Former Federal Officials and Members of Congress Identified Therewith

• Topics Seeking Evidence Relating to the Financial Impact of BCRA on Federal, State, and Local Political Processes

• Topics Concerning the Effectiveness of BCRA in Addressing the Problems Sought to be Cured

Id. at 8–9, 11. Even if the FEC’s representative “does not have firsthand knowledge of the

information sought,” id. at 7–8, the Court explained, “[i]f the FEC knows of existing empirical,

or nonempirical, evidence” on point, “it is not particularly burdensome to identify it to

4 plaintiffs,” id. at 10. Moreover, “if the FEC has not collected the type of studies and/or data

requested,” the “discussion will be, at most, perfunctory,” and any burden on the FEC would be

“nonexistent,” id. at 11–12.

The analysis by the McConnell three-judge court implies that the burden on the FEC

from preparing for and undergoing a 30(b)(6) deposition in this context is not particularly heavy.

It does not, however, support the position that these plaintiffs have a need for discovery that

outweighs the burden, whatever it may be, on the FEC. As an initial matter, Plaintiffs are

litigating this case with the benefit of the “voluminous record in McConnell” already compiled.

Def.’s Mot. Quash 13. Their claim, moreover, is not based on a change in the facts or

circumstances since the Supreme Court decided McConnell, but rather on a change in law—

namely, the Court’s decisions in Citizens United v. FEC,

(2010), and McCutcheon

v. FEC,

(2014). For this reason, these plaintiffs characterized the issues in this

case as legal, represented that discovery would be unnecessary, and filed a summary judgment

brief without citing to any written discovery produced to date by the FEC. None of that was true

in McConnell. As a result, the Court finds that Plaintiffs’ proposed 30(b)(6) deposition would be

unduly burdensome to the FEC because the discovery sought is disproportionate to its potential

evidentiary utility and to the needs of the case. Therefore, it is hereby

ORDERED that Defendant’s [30] Motion for a Protective Order and to Quash the Notice

of Deposition be GRANTED. It is further

ORDERED that the notice of the Rule 30(b)(6) deposition of the Federal Election

Commission be QUASHED. It is further

5 ORDERED that Plaintiffs’ [37] Motion for Extension of Time to Complete Discovery be

DENIED AS MOOT.

CHRISTOPHER R. COOPER United States District Judge

Date: March 29, 2016

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