Case 1:16-cv-02155-WJM-CBS Document 93 Filed 03/22/17 USDC Colorado Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-2155-WJM-CBS

RAYMOND LYALL, et al.,

Plaintiffs,

v.

CITY AND COUNTY OF DENVER,

Defendant.

MOTION FOR PROTECTIVE ORDER REGARDING NOTICED

DEPOSITION OF MAYOR MICHAEL HANCOCK

The City and County of Denver (Denver), through its counsel and pursuant

to Fed. R. Civ. P. 26(c) and D.C.COLO.LCivR 30.2, respectfully moves for a Protective

Order barring Plaintiffs from proceeding with deposing Denver Mayor Michael

Hancock, which Plaintiffs have noticed for March 29, 2017.

In support thereof, Denver states:

CERTIFICATION

Pursuant to Fed. R. Civ. P. 26(c)(1) and D.C.COLO.LCivR 7.1, the undersigned

certifies that a good faith effort was made to confer with Plaintiffs counsel in an effort

to resolve the dispute without court action, both before and after Plaintiffs noticed

Mayor Hancocks deposition. Counsel for Plaintiffs indicates that Plaintiffs oppose

this Motion.
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INTRODUCTION

Plaintiffs have filed a purported class action suit challenging Denvers alleged

enforcement of municipal code violations. [Doc. #54.] The named Plaintiffs allege that

they are homeless and were subject to Denvers enforcement on various dates and in

various locations in 2015 and 2016. [Id., 28-36, 51-53, 55-57, 59-60, 64-71.]

Plaintiffs original Complaint asserted claims against several Denver officials

including Mayor Michael Hancockin both their individual and official capacities.

[Doc. #1, 28-36.] On October 13, 2016, Plaintiffs voluntarily dismissed the

individual capacity claims [Doc. #42, 3], and filed an Amended Complaint naming

these Denver officials only in their official capacities. [Doc. #54.] On March 8, 2017,

the Court granted Defendants Motion to Dismiss the official capacity claims. [Doc.

#84.]

Plaintiffs now seek to depose Mayor Hancock. [Exhibit 1, Notice of Deposition.]

Counsel for Plaintiff has informed Denver that the primary purpose of this deposition

is to obtain information about an order issued by the Mayor in December, 2016, as

well as subsequent public statements about that order. 1 Specifically, Plaintiffs wish

to explore: (1) why that change in policy (or order) occurred; (2) that that order did

1 See Mayor Hancock Statement Regarding Unauthorized Camping Ordinance, Dec.

10, 2016, available at http://perma.cc/96M6-AHKA. This order also became the basis
for Plaintiffs motion for leave to file a Second Amended Complaint. [See Doc. #69
(Plaintiffs Motion); Doc. #74 (Denvers Response); Doc. #85 (Plaintiffs Amended
Reply).]
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occur; (3) and that there were numerous subsequent statements made to media

regarding that order. [Exhibit 2, March 1, 2017 email from Plaintiffs counsel.]

Mayor Hancock is a high governmental official. Plaintiffs are unable to show

that the Mayor has personal knowledge pertaining to the material allegations

contained in the Amended Complaint that cannot be obtained from another source.

Thus, under the circumstances of this case it would be unduly burdensome for the

Mayor to be required to appear for a deposition, and good cause exists to issue a

protective order; no extraordinary circumstances justify burdening the Mayor with

appearing for a deposition. Accordingly, for the reasons discussed below, Denver

requests that this Court issue a Protective Order barring Plaintiffs from deposing

Mayor Hancock.

LEGAL STANDARD

Pursuant to Fed. R. Civ. P. 26(c)(1), [a] party or any person from whom

discovery is sought may move for a protective order in the court where the action is

pending or as an alternative on matters relating to a deposition, in the court for the

district where the deposition will be taken. For good cause shown, the court may

issue an order to protect a party or any person from annoyance, embarrassment,

oppression, or undue burden or expense, including forbidding the discovery sought.

Fed. R. Civ. P. 26(c)(1)(A); see also Eggert v. Chaffee Cty., 10-cv-1320-CMA-KMT, 2010

WL 3359613, at *1 (D. Colo. August 25, 2010). Rule 26(c)s good cause standard is

highly flexible, having been designed to accommodate all relevant interests as they

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arise. Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008); see also Fed. R.

Civ. P. 26(b)(2)(C)(i) (noting that a court must limit the frequency or extent of

discovery otherwise allowed by the rules if it determines that the discovery sought

can be obtained from some other source that is more convenient, less burdensome,

or less expensive); Qwest Comms. Intl., Inc. v. Worldquest Networks, Inc., 213 F.R.D.

418, 419 (D. Colo. 2003) (In every case, the court has the discretion, in the interests

of justice, to prevent excessive or burdensome discovery.). The decision to issue a

protective order lies within the sound discretion of the trial court. Seattle Times Co.

v. Rhinehart, 467 U.S. 20, 34 (1984); see Wang v. Hsu, 919 F.2d 130, 130 (10th Cir.

1990).

ARGUMENT

A. Plaintiffs Cannot Show that they are entitled to depose Mayor

Hancock Under the Circumstances of this Case

There can be no question that Mayor Hancock is a high-ranking government

official. Denvers Mayor is the chief executive for the City and County who possesses

all executive and administrative powers granted to the City and County of Denver by

Article XX of the Constitution of the State of Colorado and all executive and

administrative powers contained in the Charter for the City and County of Denver.

See City and County of Denver Charter, Article II, 2.2.1. Depositions of high

ranking officials may be permitted where the official has first-hand knowledge

related to the claim being litigated ... [and] where it is shown that other persons

cannot provide the necessary information. Feldman v. Bd. of Educ. of Sch. Dist. No.

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1, No. 09-cv-01049-REB-MJW, 2010 WL 383154, at *2 (D. Colo. Jan. 28, 2010)

(quoting Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007); see also Cooke v.

Hickenlooper, No. 13-cv-1300-MSK-MJW, 2013 WL 5799995, at *2 (D. Colo. Oct. 28,

2013) ([H]igh-ranking government officials generally have limited immunity from

being deposed in matters about which they have no personal knowledge.) (citing In

re United States, 985 F.2d 510, 512 (11th Cir. 1993)).

This rulewhich some courts have labeled the apex doctrinerecognizes the

fact that [h]igh ranking government officials have greater duties and time

constraints than other witnesses and that, without appropriate limitations, such

officials will spend an inordinate amount of time tending to pending litigation. In re

United States, 985 F.2d at 512; see Naylor Farms v. Anadarko OGC Co., No. 11-cv-

01528-REB-KLM, 2011 WL 2535067, at *1 (D. Colo. June 27, 2011) (discussing what

has become known as the apex doctrine); id. at n.1 (noting that although other

district courts in this Circuit have not recognized the doctrine, the apex doctrine has

been recognized and repeatedly applied in this District.). The rule aims to protect

officials from discovery obligations that would burden the performance of their duties.

Id.; see also Bogan, 489 F.3d at 423 (recognizing that [t]he need for limited access to

high government officials through the discovery process is well established) (internal

citations omitted)). It is also intended to shield officials from unwarranted inquiries

into their decision-making process: top executive department officials should not,

absent extraordinary circumstances, be called to testify regarding their reasons for

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taking official actions. Howards v. Reichle, No. 06-CV-01964-WYD-CBS, 2008 WL

1775269, at *8 (D. Colo. Apr. 15, 2008) (quoting Simplex Time Recorder Co. v. Secy

of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985)).

Thus, a party seeking to depose a high-ranking government official bears the

burden of demonstrating that: (1) the particular official has first-hand knowledge

related to the claim being litigated; and (2) the deposition is essential to the partys

case, and (3) the information cannot be obtained from an alternative source or via

less burdensome means. Cooke, 2013 WL 5799995, at *2 (citing Sweeney v. Bond, 669

F.2d 542, 546 (8th Cir. 1982)); see also White v. City & Cty. of Denver, No. 13-CV-

01761-CMA-MJW, 2014 WL 3373368, at *2 (D. Colo. July 10, 2014); Lederman v. New

York City Dept. of Parks & Rec., 731 F.3d 199, 203 (2d Cir. 2013); In re United States

(Holder), 197 F.3d 310, 314 (9th Cir. 1999); Bogan, 489 F.3d at 423 (1st Cir. 2007);

but see Naylor Farms, 2011 WL 2535067 at *2 (discussing burden-shifting). Here,

Plaintiffs are unable to make this showing.

1. Mayor Hancock does not have personal knowledge of the

allegations set forth in Plaintiffs Complaint

Plaintiffs have indicated that they want to depose Mayor Hancock regarding

events and public statements from December, 2016. However, without more, the mere

fact that the Mayor has personal knowledge regarding a statement he made in

December 2016 in his official capacity is not sufficient. It would be improper to

depose the Mayor regarding every topic that he at some point in time addressed in a

public statement Allowing for depositions where no personal knowledge existed

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would open up a floodgate of depositions, consuming much of the Mayors timea

clear interference with his ability to perform his governmental functions. Marisol A.

v. Giuliani, No. 95 CIV. 10533 (RJW), 1998 WL 132810, at *5 (S.D.N.Y. Mar. 23,

1998); see All. for Glob. Justice v. D.C., No. CIV.A.01-00811PLFJMF, 2005 WL

1799553, at *2 (D.D.C. July 29, 2005) (same).

Not only was the Mayors statement issued four months after Plaintiffs filed

their initial Complaint, more importantly the statement does not specifically relate

to any of the claims Plaintiffs assert here. Plaintiffs Amended Complaint challenges

Denvers enforcement of several ordinances on various dates prior to September 2016,

while the Mayors statement relates to a cold weather adjustment of the Citys

unauthorized camping ordinance in December 2016. Specifically, Denvers

enforcement of the unauthorized camping ordinance is continuing; however, the

Mayor directed Denver police to cease taking camping equipment, such as tents and

blankets, from those experiencing homelessness during cold weather months. Thus,

at most, the Mayors statement has marginal relevance to some of the claims asserted

by some of the Plaintiffs; it does not demonstrate an exceptional need for his

deposition to be taken in this case. See, e.g., Oliveri v. Rodriguez, 122 F.3d 406, 409

10 (7th Cir.1997) (the superintendent of the Chicago police is a busy official who

should not be taken away from his work to spend hours or days answering lawyers

questions unless there is a real need); In re Office of Inspector Gen. R.R. Ret. Bd., 933

F.2d 276, 278 (5th Cir. 1991) ([E]xceptional circumstances must exist before the

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involuntary depositions of high agency officials are permitted); see also Stormo v.

City of Sioux Falls, No. 4:12-CV-04057-KES, 2016 WL 697116, at *9 (D.S.D. Feb. 19,

2016) ([A]ctions by a defendant that were taken after a lawsuit is filed are not the

basis for a claim in the amended complaint and are likely not admissible evidence.)

Moreover, while the Mayor may have personal knowledge of the cold-weather

adjustment he made to the Citys enforcement of the unauthorized camping

ordinance, Plaintiffs can make no showing that he has any personal knowledge

concerning the specific allegations asserted in Plaintiffs Amended Complaint, which

relate to incidents occurring on October 25, 2015; December 15, 2015; March 8 and 9,

2016; July 13, 2016; and August 20, 2016. Nowhere in the operative Amended

Complaint do Plaintiffs allege that Mayor Hancock personally participated in the

enforcement of any of the incidents which they are attempting to challenge. Further,

as demonstrated in Denvers response to Plaintiffs Motion for Class Certification, a

majority of these incidents did not involve any enforcement of Denvers unauthorized

camping ordinance. [Doc. #58, pp. 2-10.]

2. Mayor Hancocks Testimony is Not Essential to Plaintiffs Case

and Any Information They Seek is Available from Other Sources

Similarly, Plaintiffs cannot demonstrate that Mayor Hancocks testimony is

essential to their case. His personal thoughts, opinions, and beliefs, including any

post-enactment statements, have no bearing on the ultimate questions of law on

whether the challenged legislation meets constitutional standards. See Cooke, 2013

WL 5799995, at *3. Further, no showing has been made that Mayor Hancock has

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some unique knowledge which requires his deposition in this case. See All. for Glob.

Justice, 2005 WL 1799553, at *3 (The court need not address whether the Mayor has

the requisite personal knowledge to be deposed, as it is clear that plaintiffs have made

no showing that the information they seek cannot be obtained elsewhere.). Even if

the Mayor had personal knowledge of some topic related to the claims Plaintiffs are

asserting in this case, such knowledge is certainly available through alternative

sources, such as other City employees or officials, who have been responsible for City

ordinance enforcement.

For instance, Plaintiffs could direct such questions to the Mayors Assistant

Chief of Staff, Evan Dreyer, whose deposition has already been scheduled. See Bogan,

489 F.3d at 424 (Plaintiffs did not seek discovery from any of the Mayors aides It

was therefore incumbent on the [plaintiffs] to seek information from these individuals

before turning to the Mayor.); Marisol A., 1998 WL 132810, at *5 (any facts on which

[the Mayor] based the need for [his acts] were facts garnered from others, specifically

from his aides and department heads.). Plaintiffs may also direct questions to those

who are actually responsible for the enforcement of the ordinances at issue.

Accordingly, the Court should issue a protective order and bar Plaintiffs from

deposing the Mayor. Howards, 2008 WL 1775269, at *12 (requiring plaintiff to

pursue discovery from [other] identifiable sources before the court will consider a

request to depose the Vice President).

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B. A Protective Order Should Also Issue Because Plaintiffs Seek

to Obtain Privileged Information

The Court may also bar the deposition if it seeks only information covered by

the deliberative-process or executive privilege. Howards, 2008 WL 1775269, at *8; see

Marisol A., 1998 WL 132810, at *7 (a deposition cannot be barred simply because a

deponent may be asked about privileged information [b]ut, when no other

information is sought from a deposition, this [executive] privilege can bar the

deposition.). It is well settled that a high-ranking governmental official should not

absent exceptional circumstancesbe deposed or called to testify regarding the

reasons for taking official action. Lederman, 731 F.3d at 203, citing United States v.

Morgan, 313 U.S. 409, 422 (1941). The deliberative process privilege, or executive

privilege, safeguards the quality and integrity of executive decisions by protecting the

free flow of information among government officials. Dept. of Interior v. Klamath

Water Users Protective Assn, 532 U.S. 1, 8-9 (2001); Casad v. U.S. Dept. of Health &

Human Svcs., 301 F.3d 1247, 1251 (10th Cir. 2002); see Marisol A., 1998 WL 132810,

at *6 (discussing executive privilege in context of protective order).

The information Plaintiffs wish to explore in the Mayors depositionto the

extent it is not available from other sourcesfalls entirely within the executive

privilege. [T]he only additional information that plaintiffs could potentially garner

from the Mayor involves the thought processes of the Mayor [and] would be barred

by the executive privilege. Marisol A., 1998 WL 132810, at *6. The fact that the

Mayor made subsequent public statements about his official decisions does not affect

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the privileged deliberative process that led to those decisions. Id. at *8 (the Mayor

has not waived his executive privilege by issuing press releases or documents.).

In sumsetting aside the questionable relevance of the December 2016 order

to Plaintiffs claimsany personal and unique knowledge that the Mayor may have

about that order would be privileged. That, too, is grounds to bar the Mayors

deposition. Id. at *7; see also Howards, 2008 WL 1775269, at *8 (discovery that would

implicate executive privilege or official actions may be barred).

CONCLUSION

Mayor Hancock is a high-ranking government official who was not personally

involved in the events leading to this lawsuit. Any non-privileged testimony Plaintiff

seeks from him can reasonably be obtained from other sources. Good cause exists to

issue a protective order, and Denver respectfully requests that the Court issue a

protective order barring Plaintiffs from deposing Mayor Hancock.

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DATED this 22nd day of March, 2017.

Respectfully submitted,

s/Geoffrey C. Klingsporn
Wendy J. Shea
Geoffrey C. Klingsporn
Conor D. Farley
Assistant City Attorneys
201 W. Colfax Ave., Dept. 1108
Denver, Colorado 80202
Telephone: (720) 913-3100
E-Mail: wendy.shea@denvergov.org
E-Mail: geoffrey.klingsporn@denvergov.org
E-Mail: conor.farley@denvergov.org

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CERTIFICATE OF SERVICE

I certify that on this 22nd day of March, 2017 I electronically filed the foregoing
MOTION FOR PROTECTIVE ORDER REGARDING DEPOSITION OF
MAYOR MICHAEL HANCOCK with the Clerk of the Court using the CM/ECF
system which will send notification of such filing to the following:

Jason Flores-Williams, Esq.

Email: fw@jfwlaw.net

s/ Geoffrey C. Klingsporn
Denver City Attorneys Office

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