UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) AMERICAN FEDERATION OF STATE, ) COUNTY AND MUNICIPAL ) EMPLOYEES, AFL-CIO, ) ) Miscellaneous No. 21-0133 (PLF) Petitioner, ) Related Case: Civil Action No. 17-1047 v. ) ) PROJECT VERITAS ACTION FUND, et al., ) ) Respondents. ) _________________________________________ )

OPINION

On July 8, 2022, petitioner the American Federation of State, County and

Municipal Employees, AFL-CIO (“AFSCME”) filed a motion to quash subpoenas for trial

testimony of AFSCME President Lee Saunders and AFSCME Chief of Staff and Counsel

William Lurye. See Non-Party Motion to Quash Subpoenas for Trial Testimony of AFSCME

President Lee Saunders and Chief of Staff/Counsel William Lurye (“Pet’r Mot.”) [Dkt. No. 6].

Both have been subpoenaed to testify at trial by respondents Project Veritas Action Fund, et al.

(“Project Veritas”) in the case of Democracy Partners v. Project Veritas Action Fund, Civ.

No. 17-1047. Id. at 2.

AFSCME argues that the subpoenas are “harassing” and unduly burdensome. See

Pet’r Mot. at 2. Project Veritas opposes the motion, maintaining that Mr. Saunders and Mr.

Lurye have valuable testimony to offer and that the subpoenas are not harassing and do not

impose an undue burden on the individuals or on AFSCME. See Project Veritas Parties’

Response to Non-Party Motion to Quash Subpoenas for Trial Testimony of AFSCME President Lee Saunders and Chief of Staff/Counsel William Lurye (“Resp’t Opp.”) [Dkt. No. 7] at 8. For

the following reasons, the Court entered an Order on August 21, 2022 quashing the subpoena for

the testimony of Lee Saunders and enforcing the subpoena for the trial testimony of William

Lurye. See Minute Order (Aug. 21, 2022).

I. BACKGROUND

A. AFSCME and AUFC

AFSCME is a national labor union of public service employees, comprised of

approximately 1.4 million members across the United States. See Pet’r Mot. at 4. Lee Saunders

is the elected President of AFSCME, and William Lurye is the Chief of Staff and Counsel. Id.

In 2016, AFSCME had a contract with Strategic Consulting Group, NA, Inc. (“Strategic

Consulting”), a political consulting firm that “provides campaign-related services to progressive

organizations and Democratic campaigns and committees.” Democracy Partners, LLC. v.

Project Veritas (“Democracy Partners III”),

, 267 (D.D.C. 2020). Under the

contract, Strategic Consulting provided “patch-through calls” for AFSCME – “automated calls

that aim to have the recipient contact an elected official (often a member of Congress) and offer

to patch the recipient through to the official’s office.” Resp’t Opp. at 4; see also Democracy

Partners III, 453 F. Supp. 3d at 276. Strategic Consulting was a corporate member of

Democracy Partners, LLC, “a limited liability company to which a number of companies and

sole proprietorships belong as members.” Democracy Partners III, 453 F. Supp. 3d at 267.1

1 Democracy Partners has a unique membership structure. “The members include a number of consultants and vendors to progressive organizations and Democratic campaigns and committees. Democracy Partners itself does not have employees, but it serves as a common marketing vehicle for its members, in which capacity it retains various consultants to serve the members' common interests. Membership is governed by a formal operating agreement, and members contribute to cover some of the shared costs through modest annual dues or in-kind services.” Democracy Partners III, 453 F. Supp. 3d at 267 (internal citations omitted).

2 AFSCME also had a contract with Americans United for Change (“AUFC”), a

progressive advocacy organization that operated out of the same office as Strategic Consulting

and Democracy Partners (“Suite 250”). See Democracy Partners III, 453 F. Supp. 3d at 267.

AFSCME was AUFC’s principal funder. Id. at 268. AUFC had close ties with the plaintiffs in

the underlying litigation, Democracy Partners and Strategic Consulting; it held the lease for

Suite 250 and was also a client of Strategic Consulting. See id. (“[AUFC] had an oral contract

with Strategic Consulting to pay it $11,000 per month for consulting services, and it paid an

additional amount for automated telephone calls and other specific services.”).

B. Democracy Partners v. Project Veritas

The subpoenas in this action arise out of litigation related to an undercover

operation conducted in 2016 by Project Veritas to infiltrate the Washington, D.C. office of

Democracy Partners and Strategic Consulting. See Democracy Partners III, 453 F. Supp. 3d

at 266-67; see also Democracy Partners, LLC. v. Project Veritas (“Democracy Partners VII”),

(D.D.C. Aug. 12, 2022). An employee of Project Veritas, Allison Maass,

used a false identity to obtain an unpaid internship with Democracy Partners, and then “secretly

recorded everything she saw and heard during her internship.” Democracy Partners III, 453 F.

Supp. 3d at 271 (emphasis in original). Project Veritas gained access to confidential information

regarding work that Democracy Partners was doing on behalf of the Democratic National

Committee (“DNC”) related to the 2016 Presidential election. Id. at 267. Project Veritas used

the recordings, along with other materials, in a four-part series it published on YouTube entitled

“Rigging the Election.” Id.

In 2017, Democracy Partners; Robert Creamer, its president; and Strategic

Consulting filed a lawsuit against Project Veritas; Project Veritas Action Fund; James O’Keefe,

3 the founder and president of both Project Veritas organizations; and Ms. Maass. See Democracy

Partners III, 453 F. Supp. 3d at 268. Plaintiffs in this lawsuit claim damages based on “the loss

of Strategic Consulting’s contract with AFSCME (lost income to Strategic Consulting of

$546,765)” and “the loss of Strategic Consulting's contract with AUFC (lost income to Strategic

Consulting of $567,408).” Id. at 274.2 To avoid “raising any First Amendment concerns,” Judge

Huvelle ruled that plaintiffs may only recover damages if “defendants’ non-expressive conduct

was a substantial factor in the decisions by AFSCME and AUFC to terminate their contracts with

Strategic Consulting.” Id. at 275. Plaintiffs therefore must prove at trial that AFSCME and

AUFC did not cancel their contracts with Strategic Consulting due solely to the content of

“Rigging the Election.” See id. Instead, plaintiffs will seek to persuade the jury that the

publication of “Rigging the Election” revealed that “‘the confidential information and documents

of [their] clients had been stolen, compromised and publicly disseminated as a result of

defendants’ action’ and that this ‘public exposure caused the Plaintiffs to be viewed by certain

clients as not capable of maintaining the confidentiality of sensitive and confidential client

information.’” Id. at 274 (quoting plaintiffs’ interrogatory responses).

During the course of discovery in the underlying litigation, defendants served

AFSCME with a subpoena for the production of documents and for deposition testimony. See

Pet’r Mot. at 3; Resp’t Opp. at 5. AFSCME produced the requested documents and designated

Scott Frey, its former director of government affairs, to testify on its behalf at a deposition

pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. See Pet’r Mot. at 3. Mr. Frey

2 Judge Huvelle’s summary judgment opinion recognized that “the most direct cause of [AUFC’s decision to stop doing business with Strategic Consulting] was AFSCME’s decision to stop funding AUFC, a decision that was made at the same time that AFSCME canceled its contract with Strategic Consulting and, according to plaintiffs, for the same reasons.” Democracy Partners III, 453 F. Supp. 3d at 276.

4 was deposed on November 27, 2018. See Videotape Deposition of Scott Frey, November 27,

2018 (“Frey Dep.”) [excerpts submitted at Dkt. Nos. 6-3, 7-2, and 8-1]. Mr. Frey “testified that

he, together with Lurye, made the decision to cancel AFSCME’s business arrangements with the

relevant Plaintiffs.” Pet’r Mot. at 3; see also Frey Dep. At 75:1-7 (“[Q.] Whose decision was it

to terminate the contract and relationship with Bob Creamer's Strategic Consulting Group and

Democracy Partners? A. I went up to discuss this, as I said, with the chief of staff . . . and we

just mutually agreed that we should end the relationship.”). Mr. Frey further testified that the

decision to terminate the contract “would be a recommendation to the president, [Mr. Saunders,]

which [Mr. Frey and Mr. Lurye] felt he would not disagree with.” Frey Dep. at 75:12-14. He

also stated that “[s]ubsequent to that decision . . . he had a ‘pretty short conversation’ with the

President in which the President expressed concern that Brad Woodhouse from AUFC had not

called him directly about the video.” Pet’r Mot. at 8 (citing Frey Dep. at 74:8-20).

Scott Frey has been listed as a fact witness by both parties to testify at trial in the

underlying action, which is scheduled to begin on September 13, 2022. See Joint Pretrial

Statement (“JPS”), Democracy Partners v. Project Veritas, Civ. No. 17-1047 [Dkt. No. 138]

at 13, 16. On June 22, 2022, Mr. Saunders and Mr. Lurye were subpoenaed for trial testimony.

See Subpoena of Lee Saunders [Dkt. No. 6-1]; Subpoena of William Lurye [Dkt. No. 6-2].

II. LEGAL FRAMEWORK

Under Rule 45 of the Federal Rules of Civil Procedure, a court “must quash or

modify a subpoena that . . . subjects a person to undue burden.” FED. R. CIV. P. 45(d)(3)(A)(iv).

Rule 45 applies to “both document and testimonial subpoenas,” including subpoenas to third-

party witnesses called to testify at trial. See BuzzFeed, Inc. v. U.S. Dep’t of Justice,

(D.D.C. 2018) (citing Watts v. S.E.C.,

(D.C. Cir. 2007)).

5 The D.C. Circuit has “admonished district courts to be ‘generally sensitive to the costs imposed

on third parties’ when considering a motion to . . . quash[] pursuant to Rule 45, reminding

[courts] to consider ‘whether the discovery sought is obtainable from some other source that is

more convenient, less burdensome, or less expensive.” Millennium TGA, Inc. v. Comcast Cable

Commc’ns LLC,

(D.D.C. 2012) (quoting Watts v. S.E.C.,

).

The burden of proving undue burden lies with the party moving to quash. See Payne v. District

of Columbia, Civ. No. 10-0679,

, at *3 (D.D.C. Nov. 14, 2016).

Courts evaluate motions to quash by weighing the competing interests involved in

enforcing the subpoena, which derive in part from the discovery requirements under Rule 26 of

the Federal Rules of Civil Procedure. See 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 2463.1 (3d ed. 2022); see also Stati v. Republic of

Kazakhstan, Civ. No. 14-1638,

, at *4 (D.D.C. June 5, 2020) (“The undue

burden standard for Rule 45 also mirrors the standard included within Rule 26.”). Rule 26(b)

requires district courts “‘to consider a number of factors potentially relevant to the question of

undue burden.’” BuzzFeed, Inc. v. U.S. Dep’t of Justice,

(quoting

Watts v. S.E.C.,

). Those factors include:

(1) whether the discovery sought is “unreasonably cumulative or duplicative”; (2) whether the discovery sought “can be obtained from some other source that is more convenient, less burdensome, or less expensive”; and (3) whether the discovery sought is “proportional to the needs of the case.” taking into account “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

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(quoting FED. R. CIV. P. 26(b)(1), (2)(C)). Courts “must balance the interests served by

demanding compliance with the subpoena against the interests furthered by quashing it.” Dell

Inc. v. DeCosta,

(D.D.C. 2017) (internal quotations and citations omitted).

III. DISCUSSION

AFSCME moves the Court to quash the subpoenas issued to Lee Saunders and

William Lurye because “compliance would cause an undue burden not justified by the value of

the proposed testimony.” Pet’r Mot. at 4. To start, petitioner maintains that the burden on

AFSCME and the individual witnesses is “substantial.”

. According to AFSCME, Mr.

Saunders and Mr. Lurye serve high-ranking leadership positions in the organization, “perform

absolutely unique and essential roles within AFSCME, and pulling them away from their

substantial duties to AFSCME and its members places an undeniable burden on the union.”

.3 Petitioner also suggests that the subpoenas are “calculated” to harass the witnesses and

will “risk[] allowing Defendants to try to use this Court as a platform to advance their ideological

goals.”

. Petitioner further states that “[t]he week set aside for this trial is a

particularly busy time for them, as there is a long-scheduled meeting of the AFSCME

International Executive Board [(“IEB”)] [] on Tuesday, September 20, which will require the day

of September 19 for preparation, as well as the attention of both men in the week prior.”

.

3 Petitioner urges the Court to apply the “apex doctrine” in analyzing these subpoenas, under which courts require parties to “demonstrate ‘extraordinary circumstances’” in attempting to depose high-ranking government officials. Pet’r Mot. at 6 (quoting United States v. Newman,

, 188 (D.D.C. 2021)). Petitioner concedes, however, that no judge in this district has extended the apex doctrine to non-government executives. See

Because the Court need not apply the apex doctrine to resolve this motion, it declines to discuss its application in this opinion.

7 AFSCME further argues that “the evidentiary interest” in Mr. Saunders’ and Mr.

Lurye’s testimony “is, at best, negligible” for three reasons. Pet’r Mot. at 6. First, AFSCME

asserts that Mr. Frey – who is already scheduled to give testimony at trial – is “best situated” to

testify because “the relationships at issue were under his authority.” Id. at 7. Second, AFSCME

maintains that Mr. Saunders “has no independent knowledge of any disputed facts” and therefore

“any non-hearsay testimony he could offer would be minimal and cumulative to the testimony

already offered by Mr. Frey.” Id. at 8. And third, petitioner contends that Mr. Lurye “has no

unique or additional facts to add” and that his testimony is cumulative and “can be garnered from

other witnesses.” Id. at 9. Petitioner adds that because neither individual preserved their

testimony through depositions, “it is extremely unlikely that either individual will have sufficient

memory of events that occurred six years prior.” Id.

Project Veritas, in contrast, argues that Mr. Saunders and Mr. Lurye do indeed

“have valuable testimony to offer.” Resp’t Opp. at 8. For example, Project Veritas points to

evidence in the record that Mr. Lurye and Mr. Saunders independently discussed the decision to

terminate the contract with Strategic Consulting outside the presence of Mr. Frey. See id. at 9

(citing Frey Dep. at 67:12-22). Project Veritas also emphasizes the fact that “Mr. Saunders was

the actual decision-maker at AFSCME” and argues that “[a] jury should hear the thinking of

Messrs. Frey, Lurye and Saunders, respectively, and the reasoning behind Mr. Saunders’s

ultimate decision in order to further develop the testimony of [Mr. Frey] so that the jurors can

fully understand AFSCME’s motivations.” Id. at 9, 10-11. Project Veritas further rejects

petitioner’s argument that the subpoenas impose an undue burden, asserting that “to travel two

miles to the Court from AFSCME’s headquarters for one morning in September is not

burdensome,” and the testimony sought “poses no risk of harassment.” Resp’t Opp. at 12.

8 The Court has carefully weighed the competing interests involved in enforcing the

subpoenas of Mr. Saunders and Mr. Lurye. To start, the Court finds no evidence that either

subpoena in this action is “calculated” to harass the witnesses or advance respondents’

ideological goals. See Pet’r Mot. at 2, 11. The testimony sought is clearly relevant to the

underlying litigation – plaintiffs must persuade the jury at trial that “defendants’ non-expressive

conduct was a substantial factor in the decision[] by AFSCME . . . to terminate [its] contracts

with Strategic Consulting.” Democracy Partners III, 453 F. Supp. 3d at 275. AFSCME

executives involved in the contract termination are therefore likely to offer testimony that “has

[a] tendency to make [this] fact more or less probable . . . [and] the fact is of consequence in

determining the action.” FED. R. EVID. 401. Moreover, respondents correctly assert that at trial,

“[o]bjections to irrelevant or harassing inquiries of Messrs. Saunders and Lurye would be

sustained[,] [and] AFSCME does not . . . point to an inappropriate inquiry in Mr. Frey’s 30(b)(6)

deposition.” Resp’t Opp. at 12 n.5.

For the following additional reasons, the Court concludes that AFSCME has not

met its burden in demonstrating that the subpoena for trial testimony of Mr. Lurye imposes an

undue burden or that it would be cumulative. AFSCME has, on the other hand, met its burden

regarding the subpoena for trial testimony of Mr. Saunders. The Court considers the two

subpoenas in turn.

A. William Lurye

The Court first concludes that the burden of enforcing Mr. Lurye’s subpoena is

not substantial. Defendants are correct that the AFSCME headquarters are close in proximity to

the courthouse, which cuts against the burden of appearing at trial. See Resp’t Opp. at 12. The

Court and the parties can further mitigate this burden by scheduling Mr. Lurye’s testimony for a

9 specific date and time that best accommodates his preexisting commitments. And as chief of

staff and counsel, Mr. Lurye does not hold the same degree of leadership in the union and the

IEB as AFSCME’s president, Mr. Saunders.

The subpoena for Mr. Lurye’s trial testimony also does not seek “unreasonably

cumulative or duplicative” information. FED. R. CIV. P. 26(b)(2)(C)(i); see BuzzFeed, Inc. v.

U.S. Dep’t of Justice,

. Mr. Lurye has direct knowledge of a major issue

at trial – namely, whether “defendants’ non-expressive conduct was a substantial factor in the

decisions by AFSCME and AUFC to terminate their contracts with Strategic Consulting.”

Democracy Partners III, 453 F. Supp. 3d at 275. In fact, AFSCME concedes that the decision to

terminate its contract with Strategic Consulting was reached through mutual agreement during a

conversation between Mr. Frey and Mr. Lurye. See Pet’r Mot. at 3; see also Frey Dep. at 75:1-7.

Mr. Lurye’s testimony will either corroborate Mr. Frey’s or contradict it.

Moreover, the full scope of Mr. Lurye’s testimony cannot “be obtained from some

other source that is more convenient, less burdensome, or less expensive.” FED. R. CIV.

P. 26(b)(2)(C)(i); see BuzzFeed, Inc. v. U.S. Dep’t of Justice,

. Mr. Frey

and Mr. Lurye independently considered the circumstances in reaching the decision to terminate

AFSCME’s contract with Strategic Consulting, and these considerations go directly to the heart

of whether Project Veritas’ “non-expressive conduct” was a substantial factor in AFSCME’s

decision. Democracy Partners III, 453 F. Supp. 3d at 275. No one can state with certainty that

“Mr. Frey is able to fully explain [AFSCME’s] decision.” Reply in Support of Non-Party

Motion to Quash Subpoenas for Trial Testimony of AFSCME President Lee Saunders and Chief

of Staff/Counsel William Lurye (“Pet’r Reply”) [Dkt. No. 8] at 2-3. And contrary to petitioner’s

assertion, there may be gaps in Mr. Frey’s testimony that Mr. Lurye may be able to fill. See id.

at 5-6. For example, the record is clear that Mr. Lurye and Mr. Saunders had at least one

10 “independent discussion[]” regarding the contract termination to which Mr. Frey was not privy.

Resp’t Opp. at 8-9; see also Frey Dep. at 67:12-22.

Lastly, plaintiffs have pled damages in excess of one million dollars based on the

loss of their contracts with AFSCME and AUFC. See Democracy Partners III, 453 F. Supp. 3d

at 274. To avoid “raising any First Amendment concerns,” plaintiffs must prove that such

damages were “proximately caused by defendants’ non-expressive conduct” in order to recover

from defendants. Id. The testimony from Mr. Lurye may therefore be crucial to the jury’s

determination at trial.

B. Lee Saunders

Mr. Saunders’ subpoena involves a different calculus. To start, the Court believes

that AFSCME has demonstrated that the subpoena of Mr. Saunders places some substantial

burden on the organization, particularly during two of the five days scheduled for trial. Mr.

Saunders, as president of the union, serves the highest leadership position in the organization,

which represents 1.4 million members. See Pet’r Mot. at 4; see also Pet’r Reply at 2 (describing

AFSCME as “the largest union of public service employees in the United States”). Mr. Saunders

also serves as Chair of the AFSCME [IEB], which has an in-person meeting during two of the

days allotted for trial. See Pet’r Mot. at 10; Pet’r Reply at 2 n.1. AFSCME proffers that the IEB

is the “the highest legislative and policy-making body of th[e] Federation outside of the

quadrennial Convention.” Pet’r Reply at 2 n.1 (internal quotation omitted).

Furthermore, the Court agrees with petitioner that “the evidentiary interest” in Mr.

Saunders’ testimony “is, at best, negligible.” Pet’r Mot. at 6. In fact, the description of Mr.

Saunders’ testimony submitted in defendants’ proposed witness list includes only one topic that

is not listed under the descriptions of testimony for Mr. Frey and Mr. Lurye – namely, “[Mr.

11 Saunders’] departure from the board of Americans United for Change.” See JPS at 16-17. But

Mr. Saunders’ personal decision to step down from the board of AUFC is not at issue. Rather, as

discussed above, plaintiffs need only prove that “defendants’ non-expressive conduct was a

substantial factor in the decisions by AFSCME and AUFC to terminate their contracts with

Strategic Consulting.” Democracy Partners III, 453 F. Supp. 3d at 275. Although it is true that

Mr. Saunders had final decision-making authority as president of the union, there is no evidence

that he engaged in any material or substantive consideration of the decision to terminate the

contract apart from his approval of the determination made by Mr. Lurye and Mr. Frey. Mr.

Frey and Mr. Lurye “reasoned through the recommendation, regardless of whether it was

formally ‘approved’ by President Saunders.” Pet’r Reply at 3. The factual dispute at trial

“involves only the reason for the decision—and not the ultimate fact of the decision.” Id.

Project Veritas argues that Mr. Saunders has valuable testimony to offer because

he had an “independent discussion[]” with Mr. Lurye. See Resp’t Opp. at 8. Project Veritas

includes the following exchange from Mr. Frey’s deposition, in which he describes the events

that ensued after he spoke with Brad Woodhouse, the head of AUFC, and Robert Creamer, the

owner of Strategic Consulting:

Q. . . . In addition to meeting with the chief of staff, did you report what you learned to the president of AFSCME?

A. Not immediately, no.

Q. Just as a matter of, why not?

A. I felt like I had conveyed this to the chief of staff and that he would do that. I think some time lapsed. I don’t recall whether he was out of the office or on travel. I don’t recall specifically. In hindsight I felt that, you know, my notifying the chief of staff closed that loop.

12 Id. at 9 (quoting Frey Dep. at 67:12-22). Contrary to Project Veritas’ assertions, however, this

exchange provides no support for the position that Mr. Saunders will have anything important to

say at trial. Instead, it makes clear that whatever Mr. Frey “learned” from his conversations with

Mr. Woodhouse and Mr. Creamer was “conveyed to the chief of staff,” Mr. Lurye, who in turn

reported it to Mr. Saunders. Id. Any relevant information from this “independent discussion[]”

may be elicited at trial through the testimony of Mr. Frey and Mr. Lurye. See id. Mr. Saunders’

testimony will therefore be “cumulative [and] duplicative” of the other two AFSCME witnesses.

FED. R. CIV. P. 26(b)(2)(C)(i).

While it is true that the question of why AFSCME terminated its contract is a

substantial issue, Mr. Saunders is plainly not needed to aid the jury in answering this question.

See Democracy Partners III, 453 F. Supp. 3d at 275. The burden of requiring Mr. Saunders’

testimony therefore “outweighs its likely benefit.” Watts v. S.E.C.,

.

IV. CONCLUSION

After carefully weighing the competing interests involved in enforcing the

subpoenas at issue, the Court entered an Order on August 21, 2022 quashing the subpoena of Lee

Saunders and enforcing the subpoena of William Lurye for trial testimony in the case of

Democracy Partners v. Project Veritas Action Fund, Civ. No. 17-1047. See Minute Order

(Aug. 21, 2022). This Opinion explains the reasoning underlying that Order.

SO ORDERED. Digitally signed by Paul L. Friedman Date: 2022.08.25 09:14:08 -04'00' ______________________________ PAUL L. FRIEDMAN United States District Judge

DATE: August 25, 2022

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