United States District Court, E.D. Michigan, Southern Division
ORDER REGARDING GOVERNMENT'S MOTION TO QUASH
SUBPOENA AND FOR PROTECTIVE ORDER REGARDING THE DEPOSITION OF
THE FORMER SECRETARY OF THE DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT (DKT.. 69)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
case, Defendant Quicken Loans (“Quicken”) has
subpoenaed the former Secretary of the Department of Housing
and Urban Development (“HUD”), Shaun Donovan.
Quicken asserts that it seeks to depose Mr. Donovan on four
topics: (i) his communications with Quicken executives during
his time as secretary; (ii) enforcement activities taken
against FHA's largest originators, including Quicken;
(iii) HUD's response to the economic crisis; and (iv his
oversight of the FHA program.
Government has filed a motion to quash the subpoena (Dkt.
69), arguing that (i) the subpoena would pose an undue
burden; (ii) the testimony would be cumulative and
duplicative; and (iii) the testimony would be irrelevant.
Having reviewed Quicken's response (Dkt. 72) and the
Government's reply (Dkt. 74), and having dispensed with
oral argument, see E.D. Mich. LR 7.1(f)(2);
Fed.R.Civ.P. 78(b), the Court concludes that none of these
arguments justifies blocking Mr. Donovan's deposition.
subpoena must be quashed or modified if it “subjects a
person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A)(iv).
The Government argues that many courts have determined that
high-ranking government officials are generally not subject
to deposition, absent extraordinary circumstances, given the
potential interference with vital public service.
See, e.g., In re United States,
985 F.2d 510 (11th Cir. 1993). However, courts generally do
not accord such solicitude to former officials, because
attending a deposition presents no impediment to ongoing
public duties. See Byrd v. District of Columbia, 259
F.R.D. 1, 8 (D.D.C. 2009) (“[G]iven that the concerns
associated with deposing high-ranking officials have to do
with the potential interruption of current duties, it is the
current position, and not any former position, that is
evaluated.”); Sanstrom v. Rosa, 1996 WL 469589
at *5 (S.D.N.Y. 1996) (“However, because Mr. Cuomo is
no longer governor, he cannot claim this privilege.”).
Because Mr. Donovan is no longer in government service, he
has no special standing to object to participating in the
civil justice system.
course, no individual should be subject to an unduly
burdensome court process where it can be shown that the
witness has no relevant information to share or where the
information is unreasonably cumulative. Fed.R.Civ.P.
26(b)(1); Fed.R.Civ.P. 26(b)(2)(C)(i). But Mr. Donovan has
made no such definitive showing here. To the contrary:
Quicken has made specific allegations, including that Mr.
Donovan, when he was secretary of HUD, had at least one
communication with a Quicken top executive about the
investigation. While the Court cannot say with certainty that
his testimony will turn out to be admissible, the subject
matter with which he is alleged to be familiar touches on
defenses raised in the case and not yet struck, e.g.
that suspension of the Loan-Level Mandate, an alleged breach
of the parties' agreement, occurred as a result of the
investigation, about which Mr. Donovan had knowledge.
See Quicken Resp. to Mot. at 7-8. This would fall
within the definition of what is discoverable under Federal
Rule of Civil Procedure 26(b)(1), even as recently amended.
See Advisory Committee Note to 2015 Amendment
(“Information is discoverable under revised Rule
26(b)(1) if it is relevant to any party's claim or
defense and is proportional to the needs of the
case.”). Further, any denial of relevant knowledge by
Mr. Donovan may be properly probed during discovery. See
Libertarian Party of Ohio v. Husted, 302 F.R.D. 472, 479
(S.D. Ohio 2014) (“[T]he party seeking the discovery is
entitled to test the asserted lack of knowledge.”).
it be said with any degree of certainty that his testimony
would merely be cumulative. While other evidence gathered (or
to be gathered) may be similar to what evidence Mr. Donovan
has, the stakes in this case - potentially involving millions
of dollars in damages - provide ample justification to test
whether his information is nothing more than repetitive.
Given these circumstances, Mr. Donovan has not established
that his deposition would be “unreasonably cumulative
or duplicative . . . ” F. R. Civ. P. 26(b)(2)(C)(i)
(allowing court to limit discovery that is
“unreasonably cumulative or duplicative”);
see also Bailey v. Kentucky Community, 2015 WL
4886089 at *2 (W.D. Ky. 2015) (refusing to prohibit
deposition because confirming other evidence via a deposition
is not unreasonably cumulative). The grave stakes in this
case also undergird the conclusion that the discovery sought
is proportional to the needs of the case.
Mr. Donovan should not have to devote excessive time at a
deposition where the showing at this point is that he had
some familiarity with the subject matter of this lawsuit,
rather than any knowledge of particular transactions. The
Court has discretion to protect witnesses from harassment by
limiting the duration of a deposition. See
Fed.R.Civ.P. 26(c)(1)(A) and 30(d)(3)(B). The Court will
exercise that discretion here by limiting the duration of Mr.
Donovan's deposition to four hours of on-the-record time.
Should Quicken thereafter conclude that more time is
required, it may ask the Court to extend the duration of the
these reasons, the Court denies the Government's motion
to quash the subpoena (Dkt. 69), but limits the duration of
Mr. Donovan's deposition as specified
 Because the instant motion superseded
the Government's earlier motion for a protective order
(Dkt. 68), the earlier ...