Request to depose Newsom over protest ban denied

A U.S. magistrate judge has denied a request to depose Gov. Gavin Newsom and two other high-level state officials in a case about a protest ban at the state Capitol.

Magistrate Judge Carolyn K. Delaney cited the "rationale of protecting highly visible public servants from becoming targets for unnecessary, or at worst harassing, discovery requests." Givens v. Newsom, 2:20-cv-00852-JAM-CKD (E.D. Cal., filed April 27, 2020).

The case challenges portions of Newsom's Executive Order N-33-20, issued on March 19 in response to the COVID-19 pandemic. Among other directives, it temporarily banned in-person protests on state property.

The plaintiffs are a gun rights activist and a former candidate for Congress who filed applications to hold in-person rallies at the state Capitol in Sacramento. They claimed violations of the free assembly clause and other protections in the First and Fourteenth Amendments. The California Highway Patrol issued a directive barring protests at the Capitol in April, but rescinded it in June. The case continued, with the plaintiffs seeking to prevent future bans.

In December, attorneys D. Gill Sperlein and Harmeet K. Dhillon moved to compel depositions from Newsom, former Highway Patrol Commissioner Warren Stanley, former California Department of Public Health Director Sonia Angell, and Dr. James Watt, the Chief of California's Division of Communicable Disease Control.

In Thursday's order, issued in Sacramento, Delaney allowed the plaintiffs to depose Watt what but denied the other requests.

"When a party seeks the deposition of a high-ranking government or corporate official (a so-called 'apex' deposition), there is 'tremendous potential for abuse or harassment.'" Delaney wrote, citing Apple Inc. v. Samsung Elecs. Co., Ltd, 282 F.R.D. 259, 263 (N.D. Cal. 2012). "Apex depositions are generally not permitted absent 'extraordinary circumstances' because 'high-ranking government officials have greater duties and time constraints than other witnesses.'"

Delaney found the plaintiffs presented no evidence that Newsom acted outside the "scope of a governor's typical duties" or had relevant knowledge other potential witnesses could not offer.

-- Malcolm Maclachlan