Payne v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________
)
ERIC W. PAYNE, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-679 (RWR)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Eric Payne’s pending amended complaint against

defendants District of Columbia (“D.C.”) and Dr. Natwar Gandhi,

D.C.’s Chief Financial Officer (“CFO”), alleges violations of the

Fifth Amendment and the D.C. Whistleblower Protection Act

(“WPA”), D.C. Code § 1-615.51, et seq., constitutional

defamation, and wrongful termination. D.C. and Councilmembers

Jack Evans and Jim Graham have filed objections to Magistrate

Judge Deborah Robinson’s order denying their motions to preclude

Payne from deposing former Chair of the D.C. Council and current

Mayor Vincent Gray and the Councilmembers. The movants all argue

that the D.C. Speech or Debate Clause, D.C. Code § 1-301.42,

entitles them to absolute legislative immunity from providing

deposition testimony and producing documents, since their

communications with the CFO were integrally related to their

statutorily-required review of a proposed lottery contract.

Payne opposes, arguing that the Clause does not protect the
 -2-

officials’ attempts to influence the CFO or to facilitate Payne’s

termination. Because Payne has presented evidence that Gray and

Graham engaged in political efforts to exhort the executive that

were not protected under the Speech or Debate Clause, and because

the Mayor has not shown that complying with the deposition

subpoena would unduly burden him, the objections will be

overruled in part. Because the officials’ meetings with the CFO

otherwise involved protected speech and Payne has not shown

conduct by Evans that was not protected, the objections will be

sustained in part.

BACKGROUND

In July or August of 2004, Payne was hired to serve as

Assistant General Counsel for procurement in D.C.’s Office of the

CFO. (Pl.’s Opp’n to Collective Mots. for Protective Orders

(“Pl.’s Opp’n as to Prot. Orders”), Ex. 1, Aff. of Eric W. Payne

(“Payne Aff.”)1 ¶ 1; Am. Compl. ¶ 5.) He later was promoted to

Director of Contracts and, in that capacity, initiated the

process of awarding to one of two bidders a contract to be the

service provider for the D.C. lottery. (Payne Aff. ¶¶ 1-2; Am.

Compl. ¶¶ 10, 26.) Following a fair, reasonable, and objective

competition, Payne ultimately selected a company called W2I, a

1
The Councilmembers “do not contest the factual assertions
in Plaintiff’s affidavit for purposes of the motion to quash.”
(Councilmembers’ Obj’ns to the Magistrate Judge’s Mem. Op. and
Order Denying Councilmembers’ Mot. to Quash Subpoenas
(“Councilmembers’ Obj’ns”) at 18 n.1.)
 -3-

joint venture comprised of W2Tech, LLC and Intralot, which

apparently offered a technologically superior product at lower

prices than its competition did. (Payne Aff. ¶¶ 2, 13; Am.

Compl. ¶¶ 26-29, 58.) However, the proposed lottery contract was

contingent upon the D.C. Council’s review and approval.

(Councilmembers’ Reply to Pl.’s Opp’n as to Prot. Orders (“Reply

as to Prot. Orders”) at 1 (citing D.C. Code § 1-204.51(c)); see

also D.C.’s Obj’ns to Magistrate Judge’s Mem. Op. and Order of

October 31, 2011 Denying the District’s Mot. for a Protective

Order on Behalf of Mayor Gray (“D.C.’s Obj’ns”) at 3 (stating

that the Home Rule Act “requires D.C. Council approval for all

multiyear contracts and for all contracts in excess of one

million dollars”).)2

According to Payne, Graham and Evans cajoled the CFO into

withdrawing W2I’s contract and caused Payne’s wrongful

termination.3 (See generally Payne Aff.) Payne alleges that he

2
Payne’s suggestion that the then-Councilmembers’s role in
reviewing the contract was an executive function is misplaced.
(See Pl.’s Consolidated Opp’n to D.C.’s and Councilmembers’s
Obj’ns to Magistrate Judge’s Mem. Op. and Order of October 31,
2011 Denying the District’s Mot. for a Protective Order (“Pl.’s
Consol. Opp’n”) at 14.)
3
The Councilmembers first challenged the procurement
process during a Council Roundtable held on April 7, 2008. (Am.
Compl. ¶ 31; Payne Aff. ¶ 8.) They apparently “opposed the
proposed contract because of the involvement of W2Tech.” (Am.
Compl. ¶ 31.) On April 9, 2008, during a hearing of the Council
of the Whole Budget, Evans stated that he had convinced then-
Mayor Fenty to withdraw W2I’s contract and Graham “urged the CFO”
to do the same. (Payne Aff. ¶ 8.) However, since Payne stated
during the September 23, 2011 hearing before the magistrate judge
 -4-

was “compelled to . . . participate in several highly unusual

meetings” in April and May of 2008, “in which the CFO, certain

city council members, [his] supervisors, and [he] met to

specifically discuss the proposed lottery contract” and the

involvement of Intralot minority partner Warren Williams, Jr.

(Payne Aff. ¶ 7; see also Am. Compl. ¶ 43.) The Councilmembers

never asked “about the technical proficiency[] . . . or price of

the proposed lottery contract.” (Payne Aff. ¶ 7.) Instead,

Evans, who considered Williams to be “a slumlord,” allegedly

stated during one meeting4 that “people have a problem with”

Williams and asked whether they could “just get rid of [him].”

(Id.; Pl.’s Opp’n as to Prot. Orders at 8.) Graham referred

Payne to a woman named Dottie Love Wade, who questioned

Williams’s “ability to handle the online gaming contract[] since

Williams Sr. only previously [had] handled the Instant Tickets

contract.” (Payne Aff. ¶ 9; Pl.’s Opp’n as to Prot. Orders at

9.)

Payne told the Councilmembers that “forcibly removing [and

replacing] a joint venturer . . . after [completing] the source

selection process” would be illegal. (Payne Aff. ¶ 7.) Given

that he is “not interested in the communications in the
legislative roundtable or the Council on the whole[,]” Payne v.
D.C., 279 F.R.D. 1, 5 (D.D.C. 2011), those communications are not
relevant here.
4
This meeting allegedly occurred on April 8, 2008, and
included Evans, Gandhi, and others. (Pl.’s Consol. Opp’n at 7.)
 -5-

this “mounting pressure to modify the awarded lottery contract

award[,]” Payne filed his first complaint with the Office of

Integrity and Oversight (“OIO”) in the Office of the CFO (“OCFO”)

in April of 2008. (Id. ¶ 3; see also Am. Compl. ¶ 34.) He filed

several additional complaints with OIO, addressing the same

concerns, between May and July of that year. (Payne Aff. ¶ 3.)

Payne also reported “the pressure that the CFO and others were

applying to [him]” to the D.C. Office of Inspector General’s

(“OIG”) audit and criminal investigative representatives. (Id.

¶ 6; see also Am. Compl. ¶¶ 39, 41.)

Payne allegedly met with Gray, Gandhi, and at least one

unnamed elected official for the last time on May 5, 2008.

(Payne Aff. ¶ 10; Am. Compl. ¶ 45.) Afterwards, “Gray asked

Gandhi to remain behind” and meet privately. (Payne Aff.

¶ 10.) According to Payne, Gray then pressured Gandhi “to end

the contract solicitation and to demote and/or terminate [Payne]

in order to pave the way to re-bid the lottery contract.” (Id.)

After Gandhi emerged from this private meeting, he allegedly

“repeatedly cajoled [Payne] to cancel the lottery contract and

reopen the [procurement] process.” (Id. (internal quotation

marks omitted).) Graham also told Payne that “he had a bone to

pick with [him],” that Graham “had discussed [the issue] with

Gandhi” and that Gandhi would discuss it with Payne.5 (Id.

5
Payne’s affidavit does not specify the date of the
meeting, though he suggests that it took place sometime after
 -6-

¶ 9.) On May 15, 2008, Gandhi met with Payne’s supervisor, Paul

Lundquist, and the OCFO’s Director of Operations, Angell Jacobs

in May of 2008. (Id. ¶¶ 3, 4, 6.) The CFO stated that Payne’s

“tenure within the OCFO needed ‘to end as soon as practicable.’”

(Id. ¶ 4.)

On July 1, 2008, Lundquist notified Payne that Gandhi

planned to demote him. (Payne Aff. ¶ 12; Am. Compl. ¶ 53.)

Lundquist and Jacobs met with Payne to demote him on July 7,

2008, and Payne recorded the conversation. (Payne Aff.

¶ 12; Am. Compl. ¶ 52.) By then, Payne had learned from W2I

representatives who met with Gray and Graham that Gandhi assured

Gray and Graham that Payne “would not be in [his] position much

longer and that the contract . . . would be re-bid.” (Payne Aff.

¶ 12.) Jacobs, however, told Payne that the OCFO had “absolutely

no[]” concerns about the procurement process or Payne’s role

within it. (Id.) She added that “Graham is on a personal

vendetta here and, you know, he thinks the way to get what he

wants is to find a way to discredit the people [who] were

involved in the process. . . . [F]or Gray and Graham, this is

all personal. This is about their friends, or who is not their

friends for Graham[.]” (Id.)

The D.C. Council voted to disapprove the W2I contract in

December of 2008. (Id. ¶ 13; Am. Compl. ¶ 59.) On January 9,

April 9, 2008. (See Pl.’s Consolidated Opp’n at 8.)
 -7-

2009, Payne was fired and escorted out of the building in the

presence of “[t]he Human Resources (“HR”) Director, . . . two

armed security guards, the Deputy HR Director, [the] Deputy

Logistics Director, Lundquist[,] and his assistant[.]” (Payne

Aff. ¶ 14.)

After Payne served Mayor Gray and the Councilmembers with

subpoenas, D.C. moved for a protective order barring Payne from

taking the Mayor’s deposition. It argued that the deposition

would unduly burden the Mayor and that the information sought,

which was protected by the Speech or Debate Clause, D.C. Code

§ 1-304.42, was in any event available from other sources.

(D.C.’s Mot. for a Protective Order on Behalf of Mayor Vincent C.

Gray (“D.C.’s Mot. for Prot. Order”) at 1; D.C.’s Mem. of P. & A.

in Supp. of its Mot. for a Prot. Order (“D.C.’s Mem. of P. & A.”)

at 3-4.) Citing the same Speech or Debate privilege, Evans and

Graham also moved under Federal Rule of Civil Procedure

45(c)(3)(A)(iii) to quash the subpoenas served upon them. (See

generally Councilmembers’ Mot. to Quash Subpoenas.) Payne’s

opposition proffered that he would seek deposition testimony as

to political and personnel-related conversations between the

Councilmembers and the CFO during the lottery contract review

process. (Pl.’s Opp’n as to Prot. Orders at 16.) He argued that

the information sought falls outside the legislative sphere and

supports his claims for retaliation and wrongful termination.

(Id.)
 -8-

The motions were referred for decision to Magistrate Judge

Robinson. At a hearing before her, the Councilmembers’ counsel

stated that Evans, Graham “and Defendant Gandhi had [had]

conversations regarding the D.C. Lottery contract of the type

described by Plaintiff in his affidavit.” Payne v. D.C., 279

F.R.D. 1, 3 (D.D.C. 2011). However, the Councilmembers disputed

that the meetings attended by Payne, his supervisors, the CFO,

and Councilmembers were improper. (Councilmembers’ Reply as to

Prot. Orders at 3 n.1.) Magistrate Judge Robinson concluded that

“the communications which are the subject of [Payne]’s discovery

request are the current and former councilmembers’ ‘contact[s]

[with] an executive agency in order to influence its conduct[.]’”

Payne, 279 F.R.D. at 7 (quoting Jewish War Veterans v. Gates, 506

F. Supp. 2d 30, 54 (D.D.C. 2007)) (alteration in original).

Accordingly, since “the communications at issue were no more than

attempts to ‘cajole’ or ‘exhort’ Defendant Gandhi, a member of

the District’s executive branch,” the magistrate held that “they

are not ‘legislative acts’ for which the Speech or Debate Clause

affords a shield from discovery.” Id. The magistrate judge also

rejected the argument that complying with Payne’s subpoena would

unduly burden Mayor Gray. Id. She stated that Gray had personal

knowledge of the conversations Payne described and that the

substance of Gray’s testimony could not be obtained from any

other source. Id. Her order required that the three depositions

each be limited to three and one-half hours, and that they be
 -9-

limited to “discussions with Defendant Gandhi regarding the D.C.

Lottery Contract[.]” Id. at 8.

D.C. timely filed objections on behalf of Mayor Gray,

challenging two of the magistrate judge’s conclusions as contrary

to law. (D.C.’s Obj’ns at 1-2.) D.C. argued that the magistrate

“incorrectly found that the Mayor had information that could not

be obtained from any other source” and “improperly determined

that conversations between then-Chairman Gray and members of the

executive branch regarding a contract pending before the [D.C.]

Council for approval were not part of his legislative duties.”

(Id. at 1-2.) To support these arguments, D.C. newly proffered

Mayor Gray’s declaration that he could recall having attended

only one “fairly large” meeting with the CFO and others, the

purpose of which was “to inform [himself] and [his] staff about

pending legislation so that [he] could determine how [he] would

vote.” (Gray Decl. ¶¶ 5-7.) Gray also stated that he did “not

recall having a private meeting with the [CFO] on the lottery

contract[,]” and denied any personal knowledge of or

participation in the decisions to demote and terminate Payne.

(Id. ¶¶ 6, 8-10.) Finally, D.C. reiterated that the Mayor’s rank

renders any deposition of him unduly burdensome. (Id. at 5.)

The Councilmembers also objected to the magistrate judge’s

ruling, challenging its omission of “the Council’s affirmative

statutory duty . . . to review multiyear contracts,” its

conclusion that “the Councilmembers’ inter-branch communications
 -10-

. . . were unrelated to the Councilmembers’ legislative

activities,” and its “improper[] consider[ation of] the purported

motives of the Councilmembers in determining whether their

conversations with the executive branch were protected.”

(Councilmembers’ Obj’ns at 1-3.)

Payne opposed the objections, arguing that the

Councilmembers sought to influence the OCFO’s modification or

cancellation of the lottery contract, that such political

communications do not warrant Speech or Debate protection, and

that Gray, alone, can testify about his own state of mind during

his meetings with Gandhi. (See generally Pl.’s Consolidated

Opp’n to D.C.’s and the Councilmembers’ Objections (“Pl.’s

Consol. Opp’n”).) In addition, Payne notes that Gandhi admitted

during a deposition post-dating the magistrate judge’s opinion

and order “to having the asserted private meeting with Gray

following a meeting with Gray and Gandhi’s staff.” (Id. at 6.)

Magistrate Judge Robinson has stayed her order pending

resolution of the movants’ objections.

DISCUSSION

A magistrate judge’s findings are “entitled to great

deference,” Page v. Pension Benefit Guar. Corp., 498 F. Supp. 2d

223, 225 (D.D.C. 2007), and may be modified or set aside only if

“‘found to be clearly erroneous or contrary to law[,]’” Poett v.

United States, Civil Action No. 07-1374 (CKK), 2012 WL 698144, at

*2 (D.D.C. Mar. 6, 2012) (quoting Local Civil Rule 72.2(c));
 -11-

accord Moore v. Napolitano, 723 F. Supp. 2d 167, 170-71 (D.D.C.

2010). “[T]o find clear error, [a court] must be ‘left with the

definite and firm conviction that a mistake has been committed.’”

Am. Soc’y for Prevention of Cruelty to Animals v. Feld Entm’t,

Inc., 659 F.3d 13, 22 (D.C. Cir. 2011) (quoting Anderson v. City

of Bessemer City, 470 U.S. 564, 573 (1985)). A court “may not

set aside [the magistrate’s] findings of fact ‘simply because [it

is] convinced that [it] would have decided the case

differently.’” Am. Soc’y, 659 F.3d at 22. The magistrate

judge’s legal conclusions are reviewed de novo. PowerShare, Inc.

v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010) (“When[] . . .

review of a non-dispositive motion . . . turns on a pure question

of law, that review is plenary under the ‘contrary to law’”

standard) (citation omitted); accord Am. Ctr. for Civil Justice

v. Ambush, 794 F. Supp. 2d 123, 129 (D.D.C. 2011) (“The ‘contrary

to law’ standard[] . . . permits de novo review of a magistrate

judge’s legal conclusions.”); see also United States v. Renzi,

651 F.3d 1012, 1020 (9th Cir. 2011) (“Whether the [Speech or

Debate] Clause precludes [deposition testimony] is a question of

law[.]”)6

6
A litigant “must take before the magistrate[] not only
[its] best shot, but all of [its] shots[,]” Klayman v. Judicial
Watch, Inc., 628 F. Supp. 2d 84, 94-95 (D.D.C. 2009) (internal
quotation marks and citation omitted), since any matter not
previously raised may be deemed to have been waived. Smith v.
Cafe Asia, 724 F. Supp. 2d 125, 127 (D.D.C. 2010). In their
first filings about the magistrate judge’s ruling, both Gray and
Payne submitted new evidence not presented to the magistrate
 -12-

Federal Rule of Civil Procedure 45 enumerates circumstances

under which a court “must quash or modify a subpoena.” Fed. R.

Civ. P. 45(c)(3)(A). For example, quashing or modifying is

required if a subpoena “requires disclosure of privileged or

other protected matter, if no exception or waiver applies; or

. . . [if it] subjects a person to undue burden.” Id. at

45(c)(3)(A)(iii)-(iv). A court should consider whether mere

modification suffices to satisfy Rule 45, Educ. Fin. Council v.

Oberg, Misc. Action No. 10-79 (JDB), 2010 WL 3719921, at *2

(D.D.C. Mar. 8, 2010), since “[t]he quashing of a subpoena is an

extraordinary measure, and is usually inappropriate absent

extraordinary circumstances[,]” Flanagan v. Wyndham Int’l, Inc.,

231 F.R.D. 98, 102 (D.D.C. 2005). The movants bear the burden of

demonstrating “that the subpoena violates Rule 45.” Educ. Fin.

Council, 2010 WL 3719921, at *2. Where a movant asserting undue

burden “seeks to prevent a deposition entirely,” his “burden of

proof is particularly great[.]” Guantanamera Cigar Co. v.

judge. (See Gray Decl.; Pl.’s Consol. Opp’n at 6, 15-16
(referring to Gandhi’s deposition).) The new evidence should not
bear upon a review of the decision reached by the magistrate
judge based upon the evidence she did have before her. Here,
though, both parties injected new evidence and neither should be
heard to complain. Moreover, given both parties’ opportunity to
discuss the new information in these first filings, Payne’s
chance –- if he were to lose now –- to seek anew to depose Gray
based upon new evidence, and the importance to the parties going
forward of finally resolving whether Gray can be deposed, this
new evidence will not be disregarded. That accommodation will
not be unlimited, however, and the later submissions of new
evidence will not be accepted.
 -13-

Corporacion Habanos, S.A., 263 F.R.D. 1, 8 (D.D.C. 2009) (citing

Westinghouse Elec. Corp. v. City of Burlington, 351 F.2d 762, 766

(D.C. Cir. 1965)).

A key question is whether the Speech or Debate Clause

confers upon the Councilmembers and Mayor “a testimonial and non-

disclosure privilege that prevents [them] from being compelled to

answer questions about legislative activity[.]”7 Howard v.

Office of Chief Admin. Officer of U.S. House of Representatives,

793 F. Supp. 2d 294, 299 (D.D.C. 2011). The Supreme Court has

directed that the Speech or Debate Clause be read “broadly to

effectuate its purposes.” Eastland v. U.S. Servicemen’s Fund,

421 U.S. 491, 501 (1975). However, “[t]he privilege is not

designed to protect the reputations of [legislators.]” Brown &

Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 419 (D.C. Cir.

1995). “[O]nly . . . those activities that are ‘clearly a part

of the . . . due functioning of the [legislative] process’” are

privileged. Id. at 415 (quoting United States v. Brewster, 408

U.S. 501, 516 (1972)) (emphasis in original).

7
“[T]he legislative history and the case law interpreting
[the D.C. Speech or Debate Clause] make clear that it is modeled
on the Speech or Debate Clause of the United States
Constitution.” Williams v. Johnson, 597 F. Supp. 2d 107, 112
(D.D.C. 2009) (internal quotation marks and citation omitted).
“In construing and applying the District’s Speech or Debate
statute, courts have . . . consistently turned to and relied upon
precedent interpreting its analogous federal counterpart.” Id.
at 112-13.
 -14-

“‘[I]n determining whether legislative immunity applies, [a

court asks] whether the action at issue was undertaken within the

‘legislative sphere.’” Williams v. Johnson, 597 F. Supp. 2d 107,

113 (D.D.C. 2009) (citation omitted). “‘Once the legislative act

test is met, [immunity] is absolute,’” id. at 115 (quoting

MINPECO, S.A. v. Conticommodity Services, Inc., 844 F.2d 856, 862

(D.C. Cir. 1988)) –- even if “‘the[] [legislator’s] conduct, if

performed in other . . . contexts, would . . . be

unconstitutional or otherwise contrary to’” law. Brown, 62 F.3d

at 415 (quoting Doe v. McMillan, 412 U.S. 306, 312-13 (1973)).

However, “only ‘purely legislative activities,’ United States v.

Brewster, 408 U.S. 501, 512 (1972) - i.e., acts inherent in the

legislative process[,]” are protected. Chastain v. Sundquist,

833 F.2d 311, 314 (D.C. Cir. 1987). Such acts “‘must be an

integral part of the deliberative and communicative processes by

which Members participate in committee and House proceedings with

respect to the consideration and passage or rejection of proposed

legislation[.]’” Id. (quoting Gravel v. United States, 408 U.S.

606, 625 (1972)). Protected legislative acts include

“‘delivering an opinion, uttering a speech, or haranguing in

debate; proposing legislation; voting on legislation; making,

publishing, presenting, and using legislative reports;

authorizing investigations and issuing subpoenas; holding

hearings; and introducing material at Committee hearings.’”

Williams, 597 F. Supp. 2d at 113-114 (quoting Fields v. Office of
 -15-

Eddie Bernice Johnson, 459 F.3d 1, 9 (D.C. Cir. 2006)). The

Clause also protects “[a] legislature’s efforts to acquire

information during formal committee investigations[.]” Id. at

114.

Neither the Supreme Court nor the D.C. Circuit has reached

the issue of whether informal information-gathering falls “within

the legislative sphere.” Id. At least two decisions in this

district nonetheless have held that such information-gathering

“is protected . . . ‘so long as the information is acquired in

connection with or in aid of an activity that qualified as

‘legislative’ in nature.’” Id. (quoting Jewish War Veterans, 506

F. Supp. 2d at 57.) These opinions reason that “at the end of

every protected [‘informal’] information-gathering venture is a

[‘formal’] legislative act . . . [such as] a piece of draft

legislation, [or] . . . a meeting to help push through a pending

bill.” Jewish War Veterans, 506 F. Supp. 2d at 56-57; see also

Williams, 597 F. Supp. 2d at 114. “‘[T]he acquisition of

knowledge through informal sources is a necessary concomitant of

legislative conduct and thus should be within the ambit of the

privilege so that congressmen are able to discharge their

constitutional duties properly.’” Jewish War Veterans, 506 F.

Supp. 2d at 55 (quoting McSurely v. McClellan, 553 F.2d 1277,

1287 (D.C. Cir. 1976)).

“That [legislators] generally perform certain acts in their

official capacity . . . does not necessarily make all such acts
 -16-

legislative in nature.” Gravel, 408 U.S. at 625. Legislators

“may cajole, and exhort with respect to the administration of a

federal statute - but such conduct, though generally done, is not

protected legislative activity.” Id. at 625; Hutchinson v.

Proxmire, 443 U.S. 111, 122 n.10 (“Regardless of whether and to

what extent the . . . Clause may protect calls to . . . agencies

seeking information, it does not protect attempts to influence

the conduct of executive agencies or libelous comments made

during the conversations”); accord Williams, 597 F. Supp. 2d at

117 (“a legislator’s efforts to cajole or influence an executive

agency - as opposed to a legislator’s information-gathering or

investigative efforts - are not protected by legislative

immunity[.]”). Neither does “the Speech or Debate Clause reach[]

. . . [an] attempt to influence [an executive agency] that is in

no wise related to the due functioning of the legislative

process.” United States v. Johnson, 383 U.S. 169, 172 (1966);

accord Jewish War Veterans, 506 F. Supp. 2d at 54. The D.C.

Circuit also has held that “personnel actions regarding the

management of congressional food services are too remote from the

business of legislating to rank ‘within the legislative sphere.’”

Walker v. Jones, 733 F.2d 923, 928 (D.C. Cir. 1984). These

political -- as distinct from legislative -- acts are “beyond the
 -17-

coverage of the Speech or Debate Clause.” Jewish War Veterans,

506 F. Supp. 2d at 53-54.8

I. OBJECTIONS TO SPEECH OR DEBATE ANALYSIS

Councilmembers Evans and Graham assert three objections to

the magistrate judge’s opinion and order. First, they argue that

she “fail[ed] to acknowledge the Council’s affirmative statutory

duty under section 451 of the Home Rule Act to review multiyear

contracts[.]” (Councilmembers’s Obj’ns at 1-2, 6-7.) Second,

they assign error to the magistrate’s conclusion that the

Councilmembers’ communications with executive officials about the

lottery contract did not relate to the Councilmembers’

legislative activities. (Id. at 2.) Finally, they challenge the

magistrate’s consideration of the Councilmembers’s “purported

motives.” (Id. at 2-3 (“It is ‘not consonant with our scheme of

government for a court to inquire into the motives of

legislators.’”) (quoting Tenney v. Brandhove, 341 U.S. 367, 377

(1951)).) D.C. likewise argues that Gray’s communications were

all protected by D.C.’s Speech or Debate Clause. (D.C.’s Obj’ns

at 2, 9-12.) Payne opposes, arguing that certain of Gray’s and

8
Other examples of political acts “‘include a wide range of
legitimate ‘errands’ performed for constituents, the making of
appointments with Government agencies, assistance in securing
Government contracts, preparing so-called ‘news letters’ to
constituents, news releases, and speeches delivered outside the
Congress.’” Jewish War Veterans, 506 F. Supp. 2d at 53 (quoting
Brewster, 408 U.S. at 512).
 -18-

Graham’s communications with the OCFO were personal efforts to

have Payne fired. He also states that since Evans, Graham, and

Gray all attempted to influence the executive to withdraw and re-

bid the W2I contract, their communications as to the contract

were political rather than protected. (Pl.’s Consol. Opp’n at 7-

9, 11, 13-15.)

The Councilmembers argue that “it is incontestable that

[their] review of the Lottery Contract was legislative in

nature.” (Councilmembers’ Obj’ns at 10; see also D.C.’s Obj’ns

at 10-11.) They note that “[a]t all times,” their communications

and information-gathering meetings with the OCFO “bore directly

on whether the Councilmembers would support or not support” the

lottery contract. (Councilmembers’ Obj’ns at 10.) Payne argues

that Gray and the Councilmembers “cajole[d], exhort[ed], or

exert[ed] influence in order to modify or cancel an already

awarded contract” (Pl.’s Consol. Opp’n at 14), and that they

pursued a personal vendetta against Payne rather than “seeking

information that would support or oppose the passage of the

Lottery Contract.” (Id. at 15.)

Certain of the movants’ meetings with the OCFO were

information-gathering missions that related directly to the

pending lottery contract. Payne concedes that the Councilmembers

and their associates expressed substantive concerns over the

propriety of hiring Williams as a contractor. For example, Payne
 -19-

“was repeatedly asked about Warren Williams[’s] . . . other

business dealings with the District[.]” (Payne Aff. ¶ 7.)

During a meeting held on April 8, 2008, Evans stated that

Williams was a slumlord and asked whether the OCFO could “just

get rid of” him. (Payne Aff. ¶ 7; see also Am. Compl. ¶ 43.)

When told that replacing Williams would be legally impermissible,

Evans followed up by asking why. (Payne Aff. ¶ 7; Pl.’s Opp’n as

to Prot. Orders at 8.) Further, Graham’s associate, Dottie Love

Wade, suggested that Williams was unfamiliar with online gaming,

having only had prior experience with the “Instant Tickets”

contract. (Payne Aff. ¶ 9; Pl.’s Opp’n as to Prot. Orders at 9.)

Such communications were “‘an integral part of the deliberative

. . . processes by which [Councilmembers] . . . consider[ed]

[the] passage or rejection of proposed legislation[,]’”

Chastain, 833 F.2d at 314 (quoting Gravel, 408 U.S. at 625), and

“occur in the regular course of the legislative process.”

Fields, 459 F.3d at 10 (internal quotation marks and citation

omitted). Legislative immunity shields these communications.

However, Payne has made a showing that other of Gray’s and

Graham’s communications relating to Payne’s termination had no

bearing upon the merits of whether the lottery contract should be

approved, and do not warrant Speech or Debate protection. Payne

learned from W2I representatives that Gray and Graham discussed

with Gandhi Payne’s removal. Jacobs told Payne that Graham has a
 -20-

vendetta and wants to discredit Payne, and that Gray’s interest

in Payne was unrelated to the merits of the contract. Graham

allegedly told Gandhi of a bone Graham had to pick with Payne and

told Payne he would hear from Gandhi about it. Payne states that

Gray and Gandhi met privately on May 5, 2008, and alleges that

Gray pressured Gandhi to fire Payne. Ten days later, Gandhi told

Payne’s supervisor that Payne needed to be removed. Payne was

demoted in July and fired in January.

Legislative immunity does not attach to these communications

because “the Speech or Debate Clause [does not] reach[] . . .

[an] attempt to influence [an executive agency] that is in no

wise related to the due functioning of the legislative process.”

Johnson, 383 U.S. at 172; Hutchinson, 443 U.S. at 122 n.10

(stating that the Clause “does not protect attempts to influence

the conduct of executive agencies”). Payne produced sufficient

evidence for the magistrate judge to find that Gray and Graham

challenged Payne’s employment in an effort to cajole Gandhi, not

to pursue legislative business. See Fields, 459 F.3d at 17

(“Neither the history of the Clause nor Supreme Court precedent

provides a basis on which to conclude that personnel decisions

are ‘legislative acts[.]’”).9 The movants argue that even

9
There is no need to address the arguments that the
magistrate judge improperly omitted citation to or discussion of
the Home Rule Act, and improperly considered the movants’
legislative motives. In any event, neither one is persuasive.
In her opinion and order, Magistrate Judge Robinson noted Payne’s
 -21-

politically motivated or improper meetings with non-legislators

that nevertheless were legislative in character are protected by

the Clause. Asking the executive about personnel in a company

slotted to win a contract the Council must approve is

information-gathering within the legislative sphere. Cajoling

the executive to fire the executive’s own personnel is not.

Payne’s termination or retention does not inform a legislative

decision on the merits of the lottery contract and whether

approval is in the best interests of District citizens.

Retention or termination of Payne might have affected the best

interests of District citizens, but that decision is an executive

one, not a legislative one. See Thillens, Inc. v. Cmty. Currency

Exch. Ass’n of Ill., Inc., 729 F.2d 1128, 1130 (7th Cir. 1984)

(recognizing that the Supreme Court denied protection where

concession that “Council review, hearing consideration and
approval [are] . . . protected by legislative immunity,” Payne,
279 F.R.D. at 2, and articulated the Councilmembers’ argument
that “their actions [we]re so closely linked to their review of
the lottery contract that the actions must still be protected.”
Id. at 3. Contrary to the movants’ objection (see, e.g.,
Councilmembers’ Obj’ns at 1-2, 6-7), and notwithstanding the lack
of a specific citation to the Home Rule Act, the magistrate judge
appears to have been aware that Councilmembers met with the CFO
concerning a pending contract subject to Council review and
approval. Further, in concluding that the “communications at
issue were . . . attempts to ‘cajole’ . . . Gandhi,” Payne, 279
F.R.D. at 7, the magistrate judge did not violate the edict to
“examine . . . legislators’ acts ‘stripped of all considerations
of intent and motive.’” Youngblood v. DeWeese, 352 F.3d 836,
840-41 (3rd Cir. 2003) (quoting Bogan v. Scott-Harris, 523 U.S.
44, 55 (1998)). She merely tracked the analytical framework
followed in precedent in this district. See Williams, 597 F.
Supp. 2d at 117; Jewish War Veterans, 506 F. Supp. 2d at 58.
 -22-

legislators “[acted] outside their legislative duties not simply

because they were dealing with agencies apart from [the

legislature], but because the activities did not concern any

business of the legislature”). Because these communications

concerning Payne’s demotion and termination did not serve the

purpose of gathering information to guide a legislative vote, the

movants’ objections to the magistrate judge’s Speech or Debate

Clause analysis therefore will be overruled as to communications

concerning Payne’s demotion and termination.10 The objections

will be sustained as to the movants’ communications concerning

their review and approval of the lottery contract.

II. MAYOR’S ADDITIONAL OBJECTIONS

The Mayor argues that the information Payne seeks from him

can be obtained from alternate sources, and that providing

deposition testimony poses an undue burden. (D.C.’s Obj’ns at

7.) Payne counters that only Gray can address the substance of

private conversations he had with Gandhi as to Payne, what

“personal problem” Gray had with Payne, and why Gray asked Payne

on April 9, 2008 whether Payne was “going to bring that [lottery

contract]” up again. (Pl.’s Consolidated Opp’n at 15-16.) Payne

also asserts that “extraordinary circumstances obviate any burden

on Mayor Gray.” (Id. at 16.)

10
As Payne made no showing of such communications by Evans,
Evans’s subpoena will be quashed.
 -23-

A. Alternate sources

“[H]igh ranking government officials are generally not

subject to depositions unless they have some personal knowledge

about the matter and the party seeking the deposition makes a

showing that the information cannot be obtained elsewhere.”

Alexander v. FBI, 186 F.R.D. 1, 4 (D.D.C. 1998) (emphasis in

original). The magistrate judge did not err in finding that Gray

would have personal knowledge of his own conversations with

Gandhi. Payne, 279 F.R.D. at 7. Gandhi establishes that he had

one-on-one conversations with Gray but cannot remember what was

said. (Pl.’s Consolidated Opp’n at 15.) Although Gray claims no

recollection of such private conversations, that cannot bar Payne

from deposing the only other party to the conversations with

Gandhi and attempting to refresh Gray’s memory of the

conversations that Gandhi says happened. And, only Gray can

explain what alleged “personal problem,” if any, he had with

Payne. Payne has met his burden to show that some of the

information he seeks cannot be obtained elsewhere. This portion

of the Mayor’s objection therefore will be overruled in part.

However, Payne has failed to demonstrate that Gray’s question

concerning the lottery contract exceeded the legislative sphere,

and that no other individual can attest to Gray’s comments during

such larger meetings as Gray’s May 5, 2008 meeting with Gandhi
 -24-

and others, and his meeting with W2I. (Payne Aff. ¶¶ 10, 12.)

This portion of the Mayor’s objection will be sustained.

B. Undue burden

The magistrate judge also did not err in finding that

requiring the Mayor to sit for a deposition is not an

“‘unreasonable[ ] or oppressi[ve]’ request” in light of all the

evidence in the case. Flanagan, 231 F.R.D. at 102 (quoting

Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403

(D.C. Cir. 1984)) (alteration in original); see also Clinton v.

Jones, 520 U.S. 681, 704-05 (1997).

Whether a subpoena subjects a witness to
undue burden within the meaning of Rule
45(c)(3)(A)(iv) usually raises a question of
the reasonableness of the subpoena. The
determination of a subpoena’s reasonableness
requires a court to balance the interests
served by demanding compliance with the
subpoena against the interests furthered by
quashing it; this process of weighing a
subpoena’s benefits and burdens calls upon
the trial court to consider whether the
information is necessary and whether it is
available from any other source. It
obviously is a highly case specific inquiry
and entails an exercise of judicial
discretion.

Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas, 262

F.R.D. 293, 299-300 (S.D.N.Y. 2009) (quoting 9A Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2463.1 (3d ed. 2008)). On the one hand, the benefits of the

subpoena include clarifying –- or correcting –- Jacobs’s

characterization of Gray’s concerns with Payne and providing
 -25-

Payne his sole remaining opportunity to discover what if anything

Gray said about Payne in the private conversation with the CFO.

Both benefits may be important to Payne’s claim for wrongful

termination. On the other hand, neither D.C.’s objections nor

the Mayor’s declaration details what burden a deposition

deliberately limited in time and scope would impose upon Gray.

Compare Clinton, 520 U.S. at 704 (“Sitting presidents have

responded to court orders to provide testimony and other

information with sufficient frequency that such interactions

between the Judicial and Executive Branches can scarcely be

thought a novelty.”). The magistrate judge’s order reduced by

half the length of the deposition from the presumptive seven

hours (see Fed. R. Civ. P. 30(d)(1); LCvR 26(b)(2)(A)), to three

and one-half hours, and this opinion will restrict the scope of

the questioning to communications about Payne’s demotion and

termination. Since the articulated benefits outweigh the

unarticulated burdens, Gray must comply with the subpoena as

modified.

CONCLUSION AND ORDER

Because the Mayor and Councilmember Graham have not met

their heavy burden of demonstrating that Payne’s subpoenas

violate Rule 45, they must provide certain requested deposition

testimony. It is hereby
 -26-

ORDERED that D.C.’s and the Councilmembers’ objections [45,

46] to the magistrate judge’s ruling be, and hereby are,

OVERRULED IN PART and SUSTAINED IN PART. The objections to the

magistrate judge’s analysis –- or lack thereof –- of the Home

Rule Act, legislative motive, and undue burden are overruled.

Payne may depose Councilmember Graham and Mayor Gray as to

communications each had with the CFO relating to Payne’s demotion

and termination. D.C.’s objection to requiring the Mayor to

provide deposition testimony as to his private conversation with

Gandhi and any personal issues he had with Payne between April of

2008 and January of 2009 likewise is overruled. However, the

objections to any deposition inquiry into the then-

Councilmembers’ review of the lottery contract, and Gray’s

April 9, 2008 comment to Payne, are sustained, and the subpoena

to Councilmember Evans is quashed. It is further

ORDERED that the Councilmembers’ Second Motion [78] to Quash

be, and hereby is, DENIED as moot. It is further

ORDERED that Payne’s motion and sealed motion [83, 90] to

supplement the record with additional new evidence that was not

first presented to the magistrate judge be, and hereby are,

DENIED. It is further

ORDERED that Payne’s unopposed motion [94] for a status

hearing to set a pre-trial schedule be, and hereby is, DENIED as

premature since discovery has not yet closed. The parties shall
 -27-

confer and file a joint status report and proposed order within

thirty days after Payne finishes taking the Councilmember’s and

Mayor’s depositions.

SIGNED this 14th day of May, 2012.

/s/
RICHARD W. ROBERTS
United States District Judge