UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CHRISAVGI SOURGOUTSIS, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-1096 (KBJ/RMM)
)
UNITED STATES CAPITOL POLICE, )
)
Defendant. )
)
MEMORANDUM OPINION
Pending before the Court is Movant Capitol Police Board’s (“Movant” or “CPB”) Motion
to Quash and for a Protective Order (“Motion to Quash”) [ECF No. 15], which seeks to quash
two subpoenas served by Plaintiff Chrisavgi Sourgoutsis (“Plaintiff” or “Ms. Sourgoutsis”) on
non-parties Fay Ropella, Inspector General of the United States Capitol Police (“USCP”), and
the USCP Office of Inspector General (“OIG”). United States District Judge Ketanji Brown
Jackson referred the Motion to Quash to the undersigned Magistrate Judge for resolution. See
6/12/17 Minute Order. Having considered the parties’ submissions and attachments thereto,1 the
arguments presented at the motions hearing held August 4, 2017 (“Motions Hearing”), and after
reviewing the CPB’s in camera submissions, the Court GRANTS Movant’s Motion to Quash
and DENIES without prejudice Movant’s Motion for Protective Order.
1
The relevant filings are: Movant’s Mot. to Quash, ECF No. 15; Pl.’s Opp’n, ECF No. 17;
Movant’s Reply, ECF No. 18; Movant’s Response to Court Order, ECF No. 25; Pl.’s Response
to Movant’s Response to Court Order, ECF No. 26.
BACKGROUND
I. FACTUAL BACKGROUND2
Ms. Sourgoutsis alleges that the USCP discriminated against her on the basis of her
gender and retaliated against her for engaging in protected activity in violation of Title VII of the
Civil Rights Act, 42 U.S.C. §§ 2000e et seq. Ms. Sourgoutsis joined the USCP on May 11, 2014
and became a probationary USCP Officer after she completed training. See Compl. ¶¶ 9, 28,
ECF No. 1. Ms. Sourgoutsis’s probationary period was scheduled to end on November 15,
2015. Id. ¶ 28. During that period, Ms. Sourgoutsis was disciplined for the following alleged
conduct: wearing socks that were not the mandated uniform color; cursing; using a mobile phone
indoors; criticizing the role player in a role-playing exercise; failing to wear an appropriate
uniform shirt; and sitting while on duty. See id. ¶¶ 15–17, 21–24, 40–41. Near the end of her
probationary period, the USCP recommended that Ms. Sourgoutsis be terminated. See id. ¶¶ 80,
98. Ms. Sourgoutsis contends that the discipline and her termination were based on her gender.
See id. ¶¶ 109–12. She further alleges that the USCP terminated her in retaliation for her
participation as a witness in an interview regarding allegations that her supervisor had sexually
harassed female officers. See id. ¶¶ 120–22.
II. PROCEDURAL BACKGROUND
On June 13, 2016, Ms. Sourgoutsis filed a Complaint alleging gender discrimination and
retaliation by the USCP in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et
seq. See Compl. The USCP filed an answer to Ms. Sourgoutsis’s Complaint on September 6,
2016. See Def.’s Answer, ECF No. 7. Discovery commenced thereafter.
2
Given the procedural posture of the case, the Court relies on the facts alleged in the
Complaint.
2
The current discovery dispute arises from two subpoenas that Ms. Sourgoutsis served on
Ms. Fay Ropella, Inspector General of the USCP, and OIG. See Movant’s Mot. to Quash at 2,
ECF No. 15-1; Pl.’s Opp’n at 3, ECF No. 17. The subpoenas seek production of certain
documents and testimony regarding the USCP’s disciplinary policies and practices, including a
report reflecting OIG’s evaluation of the USCP disciplinary process. Movant’s Mot. to Quash,
Ex. 1, ECF No. 15-2 (Subpoena to Fay Ropella) (hereinafter “Ropella Subpoena”) and Ex. 2,
ECF No. 15-3 (Subpoena to OIG, USCP) (hereinafter “OIG Subpoena”). The CPB,3 a non-party
to this action, moved to quash the Ropella and OIG Subpoenas, and alternatively sought a
protective order if the Court does not quash the subpoenas. See Movant’s Mot. to Quash, ECF
No. 15.
By Minute Order dated July 31, 2017, the Court requested that the CPB submit for in
camera review a copy of the OIG report at issue in the subpoenas. See 7/31/2017 Minute Order;
see also Movant’s Mot. to Quash, Ex. 3, ECF No. 15-4 (hereinafter “Privilege Log”) (Doc.
Number 31). On August 4, 2017, the undersigned held a Motions Hearing at which counsel for
the Plaintiff and Movant were present. See 8/4/2017 Minute Entry. The undersigned heard
argument and took the motion under advisement. After the Motions Hearing, the Court issued
three Orders directing the CPB to submit additional documents for in camera review and to
further supplement the record. See 8/15/2017 Minute Order; Order, ECF No. 24; 11/7/17 Minute
Order. The CPB timely submitted the requested information.
3
The Inspector General, to whom OIG reports, is appointed by and under the supervision of the
CPB. 2 U.S.C. § 1909; see also Movant’s Mot. to Quash at 5, ECF No. 15-1.
3
LEGAL STANDARD
I. MOTION TO QUASH
Federal Rule of Civil Procedure 26 allows for “discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”
FED. R. CIV. P. 26(b)(1). As part of this discovery, Federal Rule of Civil Procedure 45 permits a
party to issue a subpoena to a non-party to command attendance at a deposition or to produce or
permit inspection of documents, information, or tangible things. FED. R. CIV. P. 45(a)(1). Rule
45 subpoenas may only be used to compel production of information that is discoverable under
Rule 26. See AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 995 (D.C. Cir. 2014). Therefore,
upon timely motion, a court must quash or modify a Rule 45 subpoena that “requires disclosure
of privileged or other protected matter[s], if no exception or waiver applies; or subjects a person
to undue burden.” FED. R. CIV. P. 45(d)(3); cf. In re Subpoena to Goldberg, 693 F. Supp. 2d 81,
83 (D.D.C. 2010) (noting resolution of motion to quash governed by Rules 26 and 45 of the
Federal Rules of Civil Procedure). That standard “applies to both document and testimonial
subpoenas.” Watts v. SEC, 482 F.3d 501, 508–09 (D.C. Cir. 2007) (citation omitted).
The party moving for relief bears the burden of showing that the subpoena should be
quashed or modified. See Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332,
354 (D.D.C. 2011); see also Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403
(D.C. Cir. 1984). “The 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) (citations omitted). Accordingly, a “movant’s burden is greater for a
motion to quash than if [the movant] were seeking more limited protection.” Id. (citing
Westinghouse Elec. Corp. v. City of Burlington, Vt., 351 F.2d 762, 766 (D.C. Cir. 1965)); see
4
also U.S. Dep’t of the Treasury v. Pension Benefit Guar. Corp., 301 F.R.D. 20, 25 (D.D.C.
2014).
II. MOTION FOR PROTECTIVE ORDER
Federal Rule of Civil Procedure 26 provides that “for good cause” a court may issue a
protective order “to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense.” FED. R. CIV. P. 26(c)(1). The party requesting the protective order
bears the burden of showing good cause “by demonstrating specific evidence of the harm that
would result.” Jennings v. Family Mgmt., 201 F.R.D. 272, 275 (D.D.C. 2001); Alexander v. FBI,
186 F.R.D. 71, 75 (D.D.C. 1998); see also Washington v. Thurgood Marshall Acad., 230 F.R.D.
18, 21 (D.D.C), on reconsideration, 232 F.R.D. 6 (D.D.C. 2005) (reconsidering a separate
proposition). Protective orders may “deny discovery completely, limit the conditions, time,
place, or topics of discovery, or limit the manner in which the confidential information is to be
revealed.” Univ. of Mass. v. Roslin Inst., 437 F. Supp. 2d 57, 60 (D.D.C. 2006).
ANALYSIS
I. MOTION TO QUASH
The CPB moves to quash two subpoenas: one issued to Fay Ropella, current Inspector
General of the USCP; and one issued to OIG. The subpoenas request both testimony and the
production of documents, and overlap substantially. Both subpoenas seek production of the
following documents:
Any documents regarding U.S. Capitol Police’s (USCP) disciplinary policies and
practices, including but not limited to: any investigation or report by the Office of
Inspector General (OIG) regarding USCP’s disciplinary process, including but not
limited to whether USCP consistently applied its disciplinary policies and practices.
Any documents regarding recommendations the OIG made to Chief Matthew
Verderosa or USCP or any USCP officials within the past five years related to
USCP’s disciplinary policies, practices, or processes.
5
Any documents showing summaries, reports, or compilations regarding the volume
and nature of disciplinary actions that the USCP took within the past five years.
Ropella Subpoena at Attach. A (Items #1–3) (footnote omitted); OIG Subpoena at Attach. A
(Items #4–6).
In her subpoena to OIG, Ms. Sourgoutsis also requests that OIG designate one or more
officers, directors, managing agents, or other persons to testify about:
USCP’s disciplinary policies and practices, including but not limited to: any
investigation or report by the Office of Inspector General (OIG) regarding
USCP’s disciplinary process, including but not limited to whether USCP
consistently applied its disciplinary policies and practices.
Recommendations the OIG made to Chief Matthew Verderosa or USCP or any
USCP officials within the past five years related to USCP’s disciplinary
policies, practices, or processes.
The manner in which the OIG maintains summaries, reports, or compilations
regarding the volume and nature of disciplinary actions that USCP took within
the past five years.
OIG Subpoena at Attach. A (Items #1–3) (footnote omitted). Ms. Sourgoutsis’s subpoena to Ms.
Ropella also seeks testimony, but does not identify the topics to be addressed. See Ropella
Subpoena at Attach. A. The CPB moves to quash both subpoenas. See Movant’s Mot. to Quash,
ECF No. 15.
A. The Subpoenas for Production of Documents by OIG and Ms. Ropella4
1. USCP’s Disciplinary Policies and Practices
The Ropella and OIG Subpoenas both seek documents “regarding USCP’s disciplinary
policies and practices, including but not limited to: any investigation or report by the Office of
Inspector General (OIG) regarding USCP’s disciplinary process . . . .” Ropella Subpoena at
4
As both the Ropella and OIG subpoenas seek production of records covering the same topics,
the following analysis addresses those subpoenas jointly.
6
Attach. A (Item #1); see also OIG Subpoena at Attach. A (Item #4). Although the parties’
arguments primarily focus on the discoverability of a report reflecting an OIG review of the
USCP disciplinary process (hereinafter “OIG Report”), the scope of the subpoenas is broader and
also would encompass the documents used to prepare the OIG Report and any records
documenting the USCP’s disciplinary policies.
a. The OIG Report
The parties contest the discoverability of the OIG Report. The CPB raises relevance and
privilege arguments, asserting: (1) that the OIG Report is not relevant because it does not address
individual cases or the application of policy to an individual’s case; and (2) that the deliberative
process privilege shields the OIG Report from disclosure. Movant’s Mot. to Quash at 6–12, ECF
No. 15-1. Ms. Sourgoutsis contends that the OIG Report is not privileged and that it is relevant
to her discrimination claims to the extent it contains information about how the USCP has
disciplined others and the “USCP’s failures to fairly and consistently impose discipline.” Pl.’s
Opp’n at 5.
i. Relevance
The Federal Rules of Civil Procedure allow for “broad access to relevant information at
the discovery stage.” Jewish War Veterans of the U.S. of Am., Inc. v. Gates, 506 F. Supp. 2d 30,
41 (D.D.C. 2007). Relevance is “construed broadly to encompass any matter that bears on, or
that reasonably could lead to other matter that could bear on any party’s claim or defense.”
United States ex rel. Shamesh v. CA, Inc., 314 F.R.D. 1, 8 (D.D.C. 2016) (quoting Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)) (internal quotation marks omitted). However,
the court must limit the extent of discovery that is, inter alia, unreasonably cumulative or
7
duplicative, outside the permitted scope of Rule 26(b)(1), or obtainable from another source that
is more convenient, less burdensome, or less expensive. See FED. R. CIV. P. 26(b)(2)(C).
The OIG Report is not relevant to Ms. Sourgoutsis’s claims. Ms. Sourgoutsis appears to
believe that the OIG Report will provide useful comparator information and insight into how the
USCP has treated other individuals similarly situated to her. But the OIG Report contains no
such analysis. The Court’s in camera review of the OIG Report confirms that the report does not
address the discipline of individual USCP employees. See Movant’s Reply, Attach. 1,
Declaration of Fay F. Ropella ¶ 6, ECF No. 18-1 (“Ropella Decl.”). The OIG Report also does
not attempt to define the level of discipline that would comprise an appropriate response to the
alleged conduct underlying Ms. Sourgoutsis’s termination. Nor does the OIG Report compare
the way that the USCP has applied discipline to its male and female officers. Instead, the OIG
Report simply reflects OIG’s evaluation of the USCP disciplinary process and its
recommendations for how to improve or modify that process. Nothing in the OIG Report has
any tendency to make the existence of any “fact [that] is of consequence” to the resolution of Ms.
Sourgoutsis’s claims more probable or less probable than it otherwise would be. FED. R. EVID.
401. Therefore, the OIG Report is not relevant.
ii. Deliberative Process Privilege
The deliberative process privilege “covers documents reflecting advisory opinions,
recommendations, and deliberations comprising part of a process by which governmental
decisions and policies are formulated.” Dep’t of the Interior & Bureau of Indian Affairs v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 150 (1975)) (internal quotation marks omitted). This privilege “rests on the
obvious realization that officials will not communicate candidly among themselves if each
8
remark is a potential item of discovery and front page news,” and is designed to “enhance the
quality of agency decisions by protecting open and frank discussion among those who make
them within the Government.” Klamath Water Users Protective Ass’n, 532 U.S. at 8–9 (internal
quotation marks and citations omitted).
To qualify for the privilege, documents must be both “predecisional” and “deliberative.”
In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d 150, 159 (D.D.C. 2017); see also
Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992). A
document is predecisional if it was “prepared in order to assist an agency decisionmaker in
arriving at his decision, rather than to support a decision already made.” Petroleum Info. Corp.,
976 F.2d at 1434 (citations and internal quotation marks omitted); see also Judicial Watch, Inc.
v. Dep’t of Defense, 847 F.3d 735, 739 (D.C. Cir. 2017); Cobell v. Norton, 213 F.R.D. 1, 5
(D.D.C. 2003). A document is “deliberative” if it “is intended to facilitate or assist development
of the agency’s final position on the relevant issue.” Nat’l Sec. Archive v. CIA, 752 F.3d 460,
463 (D.C. Cir. 2014).
Under the deliberative process privilege, “factual information generally must be
disclosed, but materials embodying officials’ opinions are ordinarily exempt.” Petroleum Info.
Corp., 976 F.2d at 1434; see In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). The D.C.
Circuit employs a “functional approach” to determine whether information is factual or embodies
an opinion, and considers whether “the selection or organization of facts is part of an agency’s
deliberative process.” Hardy v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 243 F.
Supp. 3d 155, 164–65 (D.D.C. 2017) (quoting Ancient Coin Collectors Guild v. U.S. Dep’t of
State, 641 F.3d 504, 513 (D.C. Cir. 2011)) (internal quotation marks omitted). The privilege
shields factual information if it “is so inextricably intertwined with the deliberative sections of
9
documents that its disclosure would inevitably reveal the government’s deliberations.” In re
Sealed Case, 121 F.3d at 737. “This is so because the privilege serves to protect the deliberative
process itself, not merely documents containing deliberative material.” Mapother v. Dep’t of
Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993); see also Judicial Watch, Inc. v. U.S. Dep’t of
Homeland Sec., 926 F. Supp. 2d 121, 136 (D.D.C. 2013). Moreover, the deliberative process
privilege is qualified, and even documents that reflect agency officials’ deliberative opinions
may be disclosed if “the private need for disclosure outweighs the public interest in non-
disclosure.” In re Anthem, 236 F. Supp. 3d at 159 (citing In Re Sealed Case, 121 F.3d at 737).
Before determining whether the OIG Report is deliberative and predecisional, the Court
must address whether the CPB has properly invoked the deliberative process privilege. See Pl.’s
Opp’n at 6–8 (contending that CPB failed to provide a declaration of an authorized official
invoking the privilege based on actual personal consideration). To assert the privilege, a party
must include: (1) a formal claim of privilege by the head of the relevant department; (2) based on
actual personal consideration by that official; and (3) a detailed specification of the information
for which the privilege was claimed and why it properly falls within the scope of the privilege.
Landry v. FDIC, 204 F.3d 1125, 1135 (D.C. Cir. 2000) (citing Northrop Corp. v. McDonnell
Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984) for requirements of the deliberative process
privilege) (other citation omitted). The CPB’s motion did not contain all of the elements
necessary to assert the deliberative process privilege. But parties may cure such deficiencies by
supplementing the record. Cobell, 213 F.R.D. at 7. The CPB has done precisely that, by
including with its Reply a declaration from Fay Ropella, the current Inspector General. In that
declaration, Ms. Ropella formally asserted the privilege, based on her personal review of the
relevant materials, and specified why the privilege was claimed for the disputed documents. See
10
Ropella Decl.; see also Landry, 204 F.3d at 1135. Accordingly, the CPB has properly invoked
the deliberative process privilege.
The OIG Report is clearly predecisional. It does not constitute “the final Department
policy.” Ropella Decl. ¶ 4. Instead, it contains recommendations from OIG that had not been
implemented at the time the Report was issued. See id. ¶¶ 4, 6. Although the USCP intended to
issue a new discipline directive after the OIG Report was released, see id. ¶ 5, counsel for the
CPB clarified at the Motions Hearing that the OIG Report was never implemented. Instead, the
USCP responded to the OIG Report by providing its own opinions that differed in some respects
from OIG’s recommendations. Therefore, subsequent agency action did not deprive the report of
its predecisonal status. See Judicial Watch, 847 F.3d at 739; Horowitz v. Peace Corps., 428 F.3d
271, 276 (D.C. Cir. 2005) (observing that documents can lose their predecisional status if an
agency expressly adopts them as official agency policy).
The OIG Report is also deliberative. The OIG Report is “an advisory opinion and
recommendation from the Office of Inspector General (OIG) to the United States Capitol Police
which assists the Department with improving its operations.” Ropella Decl. ¶ 6. It reflects
OIG’s evaluation of the USCP disciplinary process and suggestions on how that process could be
improved. As the report consists of OIG’s “recommendations or opinions on legal or policy
matters,” it is “clearly deliberative in nature.” Hardy, 243 F. Supp. 3d at 169 (citing Vaughn v.
Rosen, 523 F.2d 1136, 1143–44 (D.C. Cir. 1975)) (internal quotation marks omitted).
Accordingly, the OIG Report is both deliberative and predecisional, and thus falls within the
deliberative process privilege.
Although the deliberative process privilege is not absolute, Ms. Sourgoutsis has not
articulated a need that would outweigh the public interest in protecting the internal deliberations
11
reflected in the OIG Report. See In re Anthem, 236 F. Supp. 3d at 159 (noting that information
may be disclosed if the private need outweighs the public interest). When making that
assessment, courts
balance the competing interests on a flexible, case by case, ad hoc basis,
considering such factors as the relevance of the evidence, the availability of
alternate evidence, the seriousness of the litigation or investigation, the harm that
could flow from disclosure, the possibility of future timidity by government
employees [should the materials be disclosed], and whether there is reason to
believe that the documents would shed light on government misconduct.
Comm. on Oversight and Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 112–13 (D.D.C. 2016);
see also In re Anthem, 236 F. Supp. 3d at 159. The party seeking the document bears the burden
of demonstrating that “the balance of interest tips in his or her favor.” In re Anthem, 236 F.
Supp. 3d at 159.
Ms. Sourgoutsis has not articulated a strong need to receive the OIG Report. As
discussed above, the OIG Report is not relevant to Ms. Sourgoutsis’s claims. The report reflects
OIG’s recommendations regarding how the discipline process optimally should work; however
what is relevant to Ms. Sourgoutsis is how the process worked at the time of her alleged
misconduct and how disciplinary policies have been applied to similarly situated USCP officers.
Further, to the extent that Ms. Sourgoutsis desires information about the USCP disciplinary
process, she can obtain it through discovery directed at the USCP and its officials. Indeed, Ms.
Sourgoutsis already has explored this topic in written discovery and in depositions of USCP
officials.
Maintaining the confidentiality of the OIG Report would advance the public interest. The
“OIG has a serious interest in maintaining the confidentiality of its procedures and methods so as
to insure [sic] the integrity of the OIG processes.” Ropella Decl. ¶ 17. The OIG Report
references employees’ candid critiques of the USCP disciplinary policies and practices, and it is
12
unlikely that USCP employees would have been willing to speak so openly absent an expectation
of confidentiality. See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980) (“To test whether disclosure of a document is likely to adversely affect the purposes
of the privilege, courts ask themselves whether the document is so candid or personal in nature
that public disclosure is likely in the future to stifle honest and frank communication within the
agency.”). Thus disclosing the OIG Report likely would lead to “future timidity by government
employees.” In re Sealed Case, 121 F.3d at 738 (quoting In re Subpoena Served upon
Comptroller of Currency, & Sec’y of Bd. of Governors of Fed. Reserve Sys., 967 F.2d 630, 634
(D.C. Cir. 1992)). In sum, the OIG Report is protected by the deliberative process privilege, and
Ms. Sourgoutsis’s desire to review it does not overcome the privilege. Accordingly, the Court
quashes the OIG and Ropella Subpoenas insofar as they seek the OIG Report.
b. Documents Used to Prepare the OIG Report
Ms. Sourgoutsis’s subpoena also encompasses the documents prepared as part of OIG’s
evaluation of the USCP disciplinary process. The CPB has identified 31 documents that were
used to prepare the OIG Report, and contends that those documents are protected by the
deliberative process privilege. See Privilege Log; Movant’s Mot. to Quash at 8–13, ECF No. 15-
1. The CPB also raises a broad challenge to the relevance of the requested documents.
i. Deliberative Process Privilege
The Court begins its analysis with the deliberative process privilege — the principal
objection raised by the CPB to the production of these records. The 31 documents at issue
consist of notes, drafts, working papers, and an email regarding the OIG Report. See Privilege
Log; Ropella Decl. ¶¶ 8–15. The deliberative process privilege applies to each of those
documents.
13
Interview Notes
Nineteen of the responsive documents5 — Privilege Log Entries 6–24 — are “notes of
interviews with Department officials, attorney, and bargaining unit representatives in preparation
for the report.” Ropella Decl. ¶ 9; see Movant’s Mot. to Quash at 12, ECF No. 15-1. Although
the deliberative process privilege typically does not extend to factual material, it protects
interview notes that summarize facts “culled . . . from the much larger universe of facts presented
to [the agency]” because such notes “reflect an exercise of judgment as to what issues are most
relevant to the pre-decisional findings and recommendations.” Ancient Coin Collectors Guild,
641 F.3d at 513 (citations and quotation marks omitted); see also Hardy, 243 F. Supp. 3d at 169–
70 (noting application of the deliberative process privilege to interview notes and summaries in
the Freedom of Information Act’s Exemption 5 context) (citing cases). The Court’s in camera
review confirmed that the interview notes at issue here are both predecisional and deliberative.
They are predecisional because they predate the preparation of the OIG Report, and thus
necessarily predate the adoption of any final agency policy. The interview notes are deliberative,
although they contain factual information relayed by the interviewees, because they reflect
OIG’s assessment of which aspects of the interviewed employees’ testimony would be most
pertinent to OIG’s evaluation of the USCP disciplinary practices, thereby implicating an
“exercise of judgment.” See Mapother, 3 F.3d at 1539; see also Hardy, 243 F. Supp. 3d at 170.
The CPB contends that the interview notes must remain confidential so as to ensure that
employees will be honest and candid during their interviews. See Ropella Decl. ¶ 16 (“When
5
Although the Ropella Declaration cites Privilege Log Entry 26 when it discusses interview
notes, the Privilege Log describes Entry 26 as a draft report. See Ropella Decl. ¶ 9; Privilege
Log. To resolve that ambiguity, the Court reviewed the document in camera. That review
revealed that this document summarizes the results of OIG’s evaluation of the USCP disciplinary
process, and thus is more aptly described as a draft.
14
interviewing Department employees for the evaluation, the OIG relies on honestly [sic] and
candidness from the employees. As such, release of interviews with employees will be harmful
to the candid discussions and runs the risk of future timidity of employees coming forward or
being frank in their discussions with the independent OIG.”). Although a significant public
interest exists in ensuring that employees speak frankly with OIG, Ms. Sourgoutsis’s need for
documents pertinent to her discrimination claims may overcome that interest if her need
outweighs the public interest in nondisclosure. As noted, when weighing those interests, courts
consider several factors including relevance, the role of the government, and the availability of
alternate evidence. See Comm. on Oversight and Gov’t Reform, 156 F. Supp. 3d at 112–13.
Ms. Sourgoutsis has not identified a need that outweighs the public interest in protecting
the confidentiality of the interview notes. The interview notes neither discuss Ms. Sourgoutsis’s
case nor address any alleged gender discrepancy in the application of USCP disciplinary policies.
As the notes are not relevant to Ms. Sourgoutsis’s discrimination claims, their disclosure would
not benefit her. Ms. Sourgoutsis can obtain alternate evidence from a first-hand source — the
USCP employees who are familiar with the disciplinary policies and practices. Therefore Ms.
Sourgoutsis cannot overcome the public interest in protecting OIG’s evaluative process. See
Ropella Decl. ¶ 16 (noting that “OIG relies on honestly [sic] and candidness from the
employees.”).
Drafts
Eight of the responsive documents are drafts — five drafts of the OIG Report and three
drafts of disciplinary policies. Privilege Log, Doc. Nos. 1, 2, 24, 25, 26, 28–30; see also Ropella
Decl. ¶¶ 10–11; supra n.5. The drafts are predecisional because they predate the preparation of
the OIG Report, which itself precedes the development of revised disciplinary policies. See
15
Ropella Decl. ¶¶ 7, 8, 10–11. Four drafts of the OIG Report (Privilege Log Entries 25, 28, 29,
and 30) “include editing, indexing and referencing, and draft requests for extension,” id. ¶ 11,
and are deliberative because their disclosure “would divulge information regarding ‘decisions to
insert or delete material or to change [the] draft’s focus or emphasis.’” Hardy, 243 F. Supp. 3d
at 174 (quoting Dudman Commc’ns Corp. v. Dep’t of the Air Force, 815 F.2d 1565, 1569 (D.C.
Cir. 1987)). The draft contained in Privilege Log Entry 26 provides a detailed overview of
OIG’s investigation and includes proposed changes to the disciplinary process; as such, it reflects
OIG’s impressions and tentative recommendations regarding agency policy and is deliberative.
Drafts of the disciplinary policies (Privilege Log Entries 1, 2, and 24) also are deliberative; their
status as drafts indicates that they were “intended to facilitate or assist development of the
agency’s final position on the relevant issue.” Nat’l Sec. Archive, 752 F.3d at 463.
Ms. Sourgoutsis’s desire to obtain the drafts does not outweigh the public interest in
protecting them from disclosure. The drafts are a quintessential example of deliberative
material. There is a significant public interest in allowing agency employees to develop policy
recommendations without being inhibited by the risk that their preliminary thoughts will be
publicly disclosed. See In re Anthem, 236 F. Supp. 3d at 165 (noting that disclosing deliberative
materials “greatly risks thwarting employees’ ability to freely communicate and exchange
ideas”). The draft disciplinary policies are not relevant to Ms. Sourgoutsis’s claims because they
shed no light on how the existing policies were applied to Ms. Sourgoutsis’s alleged conduct.
The drafts of the OIG Report also are not relevant because OIG’s evaluation of the disciplinary
process neither advances nor undermines Ms. Sourgoutsis’s sex discrimination or retaliation
claims. As the drafts are not relevant, Ms. Sourgoutsis has no compelling need to obtain them,
and the balance therefore favors nondisclosure. See Comm. on Oversight and Gov’t Reform, 156
16
F. Supp. 3d at 112 (noting relevance of the evidence as a factor in balancing competing interests
in disclosure).
Working Documents
The CPB also asserts the deliberative process privilege for two documents consisting of
“OIG’s working document regarding the flow chart of the USCP discipline process” — Privilege
Log Entries 5 and 32. Ropella Decl. ¶ 13. The Privilege Log describes these documents as a
“Disciplinary Process Outline” and “IG notes on USCP process and flow chart.” See Privilege
Log, Doc Nos. 5, 32. Both documents are predecisional because they were used to prepare the
OIG Report, which itself is a predecisional document. See Ropella Decl. ¶ 8. These documents
summarize facts gathered in the report and “reflect an exercise of judgment as to what issues are
most relevant to the pre-decisional findings and recommendations” that ultimately were included
in the OIG Report. Ancient Coin Collectors Guild, 641 F.3d at 513 (citations and quotation
marks omitted). Accordingly they are deliberative for substantially the same reason as the drafts
and interview notes. As neither document contains information that would advance or
undermine Ms. Sourgoutsis’s discrimination or retaliation claims, she has no compelling need
that would outweigh the public interest in protecting the secrecy of OIG’s deliberative process.
The CPB also asserts the deliberative process privilege for a 19-page email
communication with OIG, and avers that the email is a “Department Response to Draft Report
OIG-2017-01.” Privilege Log, Doc. No. 3; Ropella Decl. ¶ 15. The email predates the
finalization of the OIG Report, and therefore is predecisional. The document is also deliberative.
It contains the USCP’s response to OIG’s evaluation and information that the USCP proposed be
included in the OIG Report, and thus reflects the “give-and-take of the consultative process.”
Petroleum Info. Corp., 976 F.2d at 1434; In re Anthem, 236 F. Supp. 3d at 164 (withholding
17
emails where they were “at their core, the back-and-forth deliberative process required for an
agency to reach a decision.”).
For the foregoing reasons, the Court quashes the Ropella and OIG subpoenas insofar as
they seek the documents underlying the OIG Report.
ii. Relevance
The CPB appears to challenge the relevance of the documents underlying the OIG
Report, but has not fully developed the relevance argument as to those documents. See Movant’s
Mot. to Quash at 6–8, ECF No. 15-1. As discussed above, the deliberative process privilege
shields these documents from discovery. Therefore the Court will not reach the CPB’s relevance
arguments.
c. Additional Records Regarding USCP Disciplinary Policies and
Practices
In addition to seeking the OIG Report and its underlying documents, the subpoenas also
request all other records in the possession of OIG or Ms. Ropella regarding USCP disciplinary
policies and practices. See Ropella Subpoena at Attach. A (Item #1); OIG Subpoena at Attach.
A (Item #4). The CPB contends that Ms. Sourgoutsis has obtained any pertinent documents,
except for the OIG Report and its underlying documents, through the USCP’s discovery
responses. See Movant’s Mot. to Quash at 6–7, ECF No. 15-1; Movant’s Reply at 2, ECF No.
18. Therefore the CPB contends that requiring OIG or Ms. Ropella to provide this information
would be unduly burdensome and beyond the scope of permissible discovery.
As noted, Rule 26’s limitations on the scope of discovery also apply to subpoenas issued
pursuant to Rule 45. See, e.g., Coleman v. District of Columbia, 275 F.R.D. 33, 36–37 (D.D.C.
2011) (“[I]t is settled that a subpoena is limited in scope by Rule 26(b)(1) of the Federal Rules of
Civil Procedure”). Rule 26 directs courts to limit discovery that “is unreasonably cumulative or
18
duplicative, or can be obtained from some other source that is more convenient, less
burdensome, or less expensive,” or if “the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action.” FED. R. CIV. P. 26(b)(2)(C)(i), (ii). Ms.
Sourgoutsis has acknowledged, in her opposition and at the Motions Hearing, that the USCP’s
discovery responses included the disciplinary rules, policies, and guidelines that are germane to
this matter. See Pl.’s Opp’n at 5. Given that Ms. Sourgoutsis already has received that
information directly from the USCP, neither OIG nor Ms. Ropella should be required to produce
the same materials. See FED. R. CIV. P. 26(b)(2)(C)(i), (ii). Therefore the Court quashes the OIG
and Ropella Subpoenas insofar as they seek documents reflecting the USCP’s disciplinary
policies and practices.
2. Recommendations Made to Chief Verderosa and USCP Officials
The subpoenas also seek production of documents regarding “recommendations the OIG
made to Chief Matthew Verderosa or USCP or any USCP officials within the past five years
related to USCP’s disciplinary policies, practices, or processes.” OIG Subpoena at Attach. A
(Item #5); Ropella Subpoena at Attach. A (Item #2) (footnote omitted). OIG has explained, in
Ms. Ropella’s supplemental declaration, that “[t]he OIG Report (OIG-2017-01) constitutes the
only recommendation[] related to disciplinary policies, practices and processes the OIG has
made to Chief Verderosa” and that “[t]he OIG did not make any other recommendations in any
related documents.” Movant’s Response to Court Order, Supplemental Decl. of Fay F. Ropella
¶ 5, ECF No. 25-1 (“Ropella Supplemental Decl.”). Accordingly, the OIG Report is the only
document responsive to this portion of the OIG and Ropella Subpoenas. Given that the OIG
Report is protected by the deliberative process privilege for the reasons discussed above, the
19
Court quashes the OIG and Ropella Subpoenas insofar as they seek recommendations made to
Chief Verderosa and USCP officials.
3. Summaries, Reports, or Compilations Regarding the Volume and
Nature of Disciplinary Actions
Finally, the subpoenas seek production of documents “showing summaries, reports, or
compilations regarding the volume and nature of disciplinary actions that the USCP took within
the past five years.” Ropella Subpoena at Attach. A (Item #3); OIG Subpoena at Attach. A (Item
#6). Requiring OIG or Ms. Ropella to produce these documents to Ms. Sourgoutsis would be
contrary to Rule 26’s proscription against discovery that is cumulative, duplicative, or available
from another source. Plaintiff’s counsel clarified at the Motions Hearing that Ms. Sourgoutsis
primarily seeks the OIG Report and underlying documents, and has no interest in receiving
records that the USCP already has produced. Ms. Sourgoutsis also has acknowledged that the
USCP already has produced extensive written discovery regarding its disciplinary policies and
practices. Any information that OIG could obtain regarding the volume and nature of
disciplinary actions would originate from the USCP and would duplicate the material the USCP
already has produced. Thus requiring OIG to produce this information would be duplicative of
discovery already conducted, and would not benefit Ms. Sourgoutsis at all. The burden that OIG
would incur by producing such records, while arguably minimal, outweighs the nonexistent
benefit. Therefore the Court quashes the OIG and Ropella Subpoenas insofar as they seek
records showing summaries, reports, or complications regarding the volume and nature of
disciplinary actions taken by the USCP within the last five years. See Ropella Subpoena at
Attach. A (Item #3); OIG Subpoena at Attach. A (Item #6).
20
B. Testimony
1. Deposition of OIG
Ms. Sourgoutsis also seeks testimony from OIG regarding: the USCP’s disciplinary
policies and practices; recommendations from OIG to USCP officials regarding disciplinary
policies or practices; and the manner in which OIG maintains summaries, reports, or
compilations regarding USCP disciplinary actions in the last five years. See OIG Subpoena at
Attach. A (Items #1–3). Ms. Sourgoutsis argues that the first two categories of testimony will
help her identify comparators and gather “information about USCP’s failures to fairly and
consistently impose discipline.” Pl.’s Opp’n at 5. Ms. Sourgoutsis seeks the third category of
information to assess the burdensomeness of her proposed discovery.
Ms. Sourgoutsis’s request for testimony regarding USCP disciplinary policies and
practices duplicates subjects addressed in the depositions of several USCP witnesses. At the
Motions Hearing, the CPB contended, and Ms. Sourgoutsis did not refute, that Ms. Sourgoutsis
had deposed several USCP officials6 who testified about the USCP disciplinary policies and
practices at a macro-level as well as the application of those policies to Ms. Sourgoutsis’s
individual case. OIG is not responsible for developing or implementing those policies and
practices, and thus would have no first-hand knowledge regarding them. See generally Movant’s
Reply at 7 (“Any information gathered from the OIG was obtained from Department
employees.”). In addition, no “OIG official participated in or ha[s] any personal knowledge
regarding the decision to discipline or terminate Plaintiff, Chrisavgi Sourgoutsis.” Ropella
Supplemental Decl. ¶ 6. Thus although the disciplinary policies and practices would be
6
At the Motions Hearing, the CPB indicated that Ms. Sourgoutsis had deposed: Chief Matthew
R. Verderosa, Sergeant Mark Shutters, Deputy Chief Chad Thomas, Inspector Eric Waldow,
Captain Andrew Bolinger, and multiple other Sergeants. See also Movant’s Reply at 7.
21
appropriate topics to explore with the USCP, it would be unduly burdensome and duplicative of
prior depositions to require OIG, a non-party, to produce witnesses to testify about the subject,
based entirely on second-hand information from USCP witnesses.
Ms. Sourgoutsis’s request for testimony regarding OIG’s recommendations to the USCP
seeks information that is protected by the deliberative process privilege. The CPB has
established by unrebutted sworn testimony that the OIG Report comprises the “only
recommendations related to disciplinary policies, practices and processes the OIG” made to the
USCP and that “[t]he OIG did not make any other recommendations in any related documents.”
Ropella Supplemental Decl. ¶ 5. Thus any testimony from OIG witnesses regarding this
deposition topic would necessarily be based upon the information gathered and conclusions
reached during the development of the OIG Report. As discussed above, the deliberative process
privilege protects the OIG Report and its underlying documents. Consequently, testimony about
those documents “may violate the privilege” and would be protected from disclosure. Broderick
v. Shad, 117 F.R.D. 306, 313 (D.D.C. 1987); see Walker v. NCNB Nat’l Bank of Fla., 810
F. Supp. 11, 14 (D.D.C. 1993) (finding deliberative process privilege protected information
sought by deposition subpoena); cf. Watts, 482 F.3d at 508–09 (citing Exxon Shipping Co. v. U.S.
Dep’t of Interior, 34 F.3d 774, 779 (9th Cir. 1994)) (“Rule 45’s privilege and undue burden
standard thus applies to both document and testimonial subpoenas”).
Ms. Sourgoutsis’s request for testimony regarding how “OIG maintains summaries,
reports, or compilations regarding the volume and nature of disciplinary actions that USCP took
within the past five years” seeks information that is no longer relevant. At the Motions Hearing,
Plaintiff’s counsel clarified that Ms. Sourgoutsis sought such information in order to determine
how burdensome it would be for OIG to produce the information requested. The Privilege Log
22
identifies the reports, notes, and other records that OIG possesses regarding its recent evaluation
of the USCP’s disciplinary actions. Learning how OIG maintains those records would neither
facilitate Ms. Sourgoutsis’s ability to obtain those records through discovery nor advance Ms.
Sourgoutsis’s claims. By Plaintiff’s counsel’s own admission, the progression of discovery has
rendered this information virtually useless. Therefore the Court quashes the subpoena insofar as
it seeks testimony regarding this topic. See generally Phillips & Cohen, LLP v. Thorpe, 300
F.R.D. 16, 18 (D.D.C. 2013) (quashing subpoena where documents were “of no conceivable
relevance” to the “context of the action now pending”).
2. Deposition of Fay Ropella
The Ropella Subpoena also seeks deposition testimony but, unlike the OIG Subpoena,
does not identify specific topics. Ms. Sourgtousis appears to wish to explore facts pertinent to
her discrimination and retaliation claims, the preparation and the content of the OIG Report,
OIG’s reaction to USCP employees’ criticism of USCP disciplinary practices, “information
about how USCP disciplines employees, the policies USCP follows to discipline employees, and
how USCP disciplines other employees.” Pl.’s Opp’n at 11. The CPB contends that the
subpoena should be quashed because: the OIG Report is subject to the deliberative process
privilege; requiring Ms. Ropella to testify regarding any of the remaining topics would impose
an undue burden on a high-ranking government official; and the requested information is
duplicative of testimony from USCP witnesses and could be obtained directly from those
witnesses. See Movant’s Mot. to Quash at 1, 14–15, ECF No. 15-1; Movant’s Reply at 6–8.
The deliberative process privilege provides a basis to quash the subpoena insofar as it
seeks testimony regarding the OIG Report and its contents or the conclusions OIG reached in its
evaluation of the USCP’s disciplinary policies and practices. The Court has determined that the
23
report and the conclusions drawn therein are privileged. Those protections extend to deposition
testimony as well as the privileged documents. See Broderick, 117 F.R.D. at 313; Walker 810
F. Supp. at 14 (finding deliberative process privilege protected information sought by deposition
subpoena).
With respect to any other subjects Ms. Sourgoutsis may wish to explore in the Ropella
deposition, the CPB asks the Court to quash the subpoena because Ms. Ropella is a high ranking
government official who lacks personal knowledge of the relevant matters and the information is
available from an alternate source. See Movant’s Mot. to Quash at 14–15, ECF No. 15-1.
“[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 (Alexander I), 186 F.R.D.
1, 4 (D.D.C. 1998) (citing cases) (emphasis in original); see also Payne v. District of Columbia,
859 F. Supp. 2d 125, 136 (D.D.C. 2012). This rule allows “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.” Kline v.
Berry, No. 10-1802 (RWR), 2012 WL 2376982, at *5 (D.D.C. June 25, 2012).
Ms. Sourgoutsis effectively concedes that Ms. Ropella, in her role as USCP Inspector
General, qualifies as a high-ranking government official. Thus, although it is unclear whether
Ms. Ropella’s position has sufficient prominence to qualify for this exception to courts’ general
permissiveness regarding depositions, the Court will assume for purposes of resolving this
motion that Ms. Ropella is a high-ranking government official.7
7
Most cases applying this rule involve agency heads. See Alexander I, 186 F.R.D. at 4 (noting
that most cases protect agency heads); Byrd v. District of Columbia, 259 F.R.D. 1, 6–7 (D.D.C.
24
As a high-ranking official, Ms. Ropella should not be deposed in this matter. Ms.
Ropella has no personal knowledge regarding Ms. Sourgoutsis’s disciplinary action or
termination, and is unaware of any gender disparity or bias in the application of the USCP’s
disciplinary policies. See Ropella Supplemental Decl. ¶¶ 4, 6. Even if Ms. Ropella’s review of
the OIG Report and related documents imparted knowledge about USCP disciplinary policies
and how the USCP disciplines other employees, that knowledge is second-hand; the USCP
employees who provided that information to OIG are better equipped to answer any questions
that Ms. Sourgoutsis may have. Thus Ms. Sourgoutsis has not made a sufficient showing that
she is unable to obtain the information elsewhere. Accordingly, the Court quashes the deposition
subpoena to Fay Ropella.
Even if Ms. Ropella were not a high-ranking official, the Court would quash the
deposition subpoena because the proposed testimony subjects Ms. Ropella to an undue burden.
In determining whether an undue burden exists that would warrant quashing a Rule 45 subpoena,
“courts generally employ a balancing test, weighing the burdensomeness to the moving party
against the deponent’s need for, and the relevance of, the information being sought.” Flanagan,
231 F.R.D. at 102; see also Coleman, 275 F.R.D. at 36–37. Similarly, Rule 26
requires district courts in “[a]ll discovery” to consider a number of factors
potentially relevant to the question of undue burden, including: whether the
discovery is “unreasonably cumulative or duplicative”; whether the discovery
sought is “obtainable from some other source that is more convenient, less
burdensome, or less expensive”; and whether “the burden or expense of the
proposed discovery outweighs its likely benefit, taking into account the needs of
the case, the amount in controversy, the parties’ resources, the importance of the
2009) (noting that the “Mayor of the District of Columbia, United States Senators, the General
Counsel to United States House of Representatives, the Attorney General of the United States
and certain high administrative heads are high-ranking officials for this purpose.”); Kline, 2012
WL 2376982 at *4 (noting additional examples of “high-ranking” officials from other cases,
including the Deputy Chief of Staff of the Environmental Protection Agency and close assistants
to the United States President).
25
issues at stake in the litigation, and the importance of the proposed discovery in
resolving the issues.”
Watts, 482 F.3d at 509 (quoting FED. R. CIV. P. 26(b)(1)–(2)).
To the extent that the Ropella Subpoena seeks testimony regarding the USCP’s
disciplinary practices and policies and their application to other employees, it imposes an undue
burden upon Ms. Ropella. Like the related requests for production, the deposition subpoena
seeks to retread topics that have been explored at depth with USCP witnesses. Ms. Sourgtousis
already has had an opportunity to obtain that information from a first-hand source, by deposing a
number of USCP officials familiar with the disciplinary process in general and Ms. Sourgoutsis’s
individual case. See supra n.6. Ms. Ropella and other OIG employees lack “first-hand
knowledge of the enactment of the USCP’s disciplinary policies.” Movant’s Reply at 7.
Accordingly, there is no reason to believe that Ms. Ropella or any other OIG witness8 would
have personal knowledge of the relevant topics, or that the proposed testimony would add
anything of benefit to the record Ms. Sourgoutsis already has developed. Therefore this
proposed line of inquiry would subject Ms. Ropella or any other OIG witness to unreasonably
cumulative and duplicative discovery.
II. MOTION FOR PROTECTIVE ORDER
The CPB also moves in the alternative for a protective order. Specifically, the CPB asks
that the Court order that any documents that must be produced to Ms. Sourgoutsis be subject to a
protective order requiring that the documents remain under seal and not be disclosed to any third
8
The CPB has indicated that if the Court deems it appropriate to have a witness testify
regarding the OIG Report, Michael Bolton would be better suited to do so than Ms. Ropella. See
Movant’s Mot. to Quash at 15, ECF No. 15-1. Ms. Sourgoutsis responded that if Mr. Bolton is
more knowledgeable, she would be willing to reissue Ms. Ropella’s subpoena to Mr. Bolton.
See Pl.’s Opp’n at 11.
26
parties. See Movant’s Mot. to Quash — Proposed Order, ECF No. 15. The Court has not
ordered the production of any documents and has quashed both subpoenas. Therefore there is no
need for a protective order, and the Court DENIES without prejudice the CPB’s request for a
protective order.
CONCLUSION
For the foregoing reasons, the Court hereby GRANTS Movant’s Motion to Quash [ECF
No. 15] and DENIES without prejudice Movant’s Motion for a Protective Order [ECF No. 15].
A separate Order will accompany this Memorandum Opinion.
DATED: November 21, 2017
ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE
27
Sourgoutsis v. United States Capitol Police
Combined Opinion