United States v. Sensient Colors, Inc. (649 F. Supp. 2d 309, 2009)

Opinion

JOSEPH H. RODRIGUEZ, District Judge.

This matter comes before the Court on two appeals pursuant to Local Civil Rule 72.1(c), by Defendant Sensient Colors, Inc. (“Sensient”). Defendant Sensient appeals [Dkt. Entry No. 130] from the January 28, 2009 Opinion and Order of Magistrate Judge Schneider [Dkt. Entry No. 128], which: (1) granted Christine Todd Whitman’s Motion to Quash Subpoena and to Bar her Deposition; (2) granted in part and denied in part Jane M. Kenny’s Motion to Quash Subpoena and to Bar her Deposition; and (3) granted in part and denied in part David Rosoffs Motion for Protective Order. Defendant Sensient also appeals [Dkt. Entry No. 136] from the February 13, 2009 Opinion and Order of Magistrate Judge Schneider [Dkt. Entry No. 129], which denied Sensient’s Motion for Leave to Amend its responsive pleading.

This case presents a unique set of facts demanding application to a novel area of law. Parties and non-parties alike have an interest in its outcome. For the reasons expressed below, the magistrate judge is affirmed in part and reversed in part.

I. Background

Because the parties and relevant non-parties are intimately familiar with this case, an exhaustive recitation of the facts and procedural history is unnecessary. Only those facts that are necessary to the analysis of this review are included herein.

In March of 2007, the United States filed this cost recovery action against Sensient under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). See generally 42 U.S.C. §§ 9601-9675 (2000). Alleging that Sensient is responsible for contaminating the General Color Site (hereinafter “Site” where appropriate) in Camden, New Jersey, the Government via the Environmental Protection Agency (“EPA”) seeks approximately $16 million in costs resulting from its removal action activities at the Site.

Sensient objects to the EPA’s characterization of the Site project as a “removal action.” Sensient underscores the eight years and $16 million spent by the EPA on the Site, and contends that both are incongruous with a “removal action” under CERCLA. A cursory reading of the statute supports Sensient’s view. For example, CERCLA prohibits the EPA from recovering any removal costs in excess of $2 million, or 12 months in duration. See 42 U.S.C. § 9604(c)(1). Sensient further contends that the EPA deliberately mischaracterized its response activity at the Site as an emergency removal action in order to redevelop the Site — and per force, the City of Camden — at Sensient’s expense. In support of this contention, Sensient relies on an e-mail from David Rosoff, the EPA On-Scene Coordinator for the Site. That highly relevant e-mail provides:

It was a remedial site — I just completed with removal funds over a 6 year period (a very fast RI/FS-RD/RA but a very slow removal). The secret is spread it out and they don’t realize how much your spending — 9 million is a drop in the bucket for you but here I am looked at like I have 3 heads. Preremedial didn’t want to touch it so we did it ourselves. Normally I could have never done this with Dick as a boss but with the support of Jane and Anthony he couldn’t say no. There is no real 2 million dollar limit so I have learned. I’ll be looking in N.Y. this spring.

See Sensient II, 2009 WL 303689, at *1 n. 4. When viewed alongside Jane M. Kenny’s September 30, 2003 letter to then-Camden Chief Operating Officer Randy Primas, Sensient contends there is sufficient evidence that the EPA deliberately and purposely mischaracterized its response at the Site as a “removal action” instead of a “remedial action.” Relatedly, Sensient contends that “Kenny falsely certified that proposed EPA action associated with the ... Site constituted a time critical removal ... thus enabling expenditures to exceed statutory time and spending limits.” (Sensient Br. 8.)

Upon discovery of the Rosoff e-mail and the Kenny letter, Sensient filed a motion for leave to amend its answer and to file a third-party complaint. [Dkt. Entry No. 66.] Sensient also served subpoenas and deposition notices on Whitman, Kenny and Rosoff. Motions to quash were filed by Whitman and Kenny, and a motion for a protective order was filed by Rosoff. [Dkt. Entry Nos. 85, 91, 94.] Judge Schneider denied Sensient’s motion to amend, [Dkt. Entry No. 129], and granted in part and denied in part the motions to quash and motion for a protective order. [Dkt. Entry No. 128.] These decisions form the bases of this appeal.

III. Standard of Review

This Court reviews decisions on nondispositive matters by a magistrate judge under the “clearly erroneous or contrary to law” standard. See Andrews v. Goodyear Tire & Rubber Co., 191 F.R.D. 59, 67 (D.N.J.2000) (citing 28 U.S.C. § 636(b)(1)(A) (West 1999)); see also Fed. R.Civ.P. 72; L. Civ. R. 72.1(c)(1)(A). In this regard, “the magistrate judge is accorded wide discretion.” Miller v. Beneficial Mgmt. Corp., 844 F.Supp. 990, 997 (D.N.J.1993) (citing NLRB v. Frazier, 966 F.2d 812, 815 (3d Cir.1992)). A magistrate judge’s decision is clearly erroneous “when, although there may be some evidence to support it, the reviewing court, after considering the entirety of the evidence, is ‘left with the definite and firm conviction that a mistake has been committed.’ ” See Kounelis v. Sherrer, 529 F.Supp.2d 503, 518 (D.N.J.2008) (citing Dome Petroleum Ltd. v. Employers Mut. Liab. Ins. Co., 131 F.R.D. 63, 65 (D.N.J.1990) quoting United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). A magistrate judge’s decision is contrary to law when he or she has “misinterpreted or misapplied applicable law.” Kounelis, 529 F.Supp.2d at 518 (citing Gunter v. Ridgewood Energy Corp., 32 F.Supp.2d 162, 164 (D.N.J.1998)). It should be noted that “[particular deference is accorded to magistrate judges on discovery issues.” Costa v. County of Burlington, 584 F.Supp.2d 681, 684 n. 2 (D.N.J.2008) (citing Boody v. Twp. Of Cherry Hill, 997 F.Supp. 562, 573 (D.N.J.1997)). The burden of demonstrating clear error rests with the appealing party. Kounelis, 529 F.Supp.2d at 518.

IV. Discussion

A. Motions to Quash & Motion for a Protective Order

Sensient appeals the magistrate judge’s January Opinion and Order restricting the depositions of Whitman, Kenny, and Rosoff. Sensient first contends the magistrate judge committed reversible error by applying the Morgan Doctrine to former high-ranking government officials. In doing so, Sensient takes issue with the magistrate judge’s reliance on relevant case law. Sensient cites public policy concerns that, in its view, militate “in favor of limiting the applicability of the Morgan Doctrine to current government officials.” (Sensient Br. 14.) Next, Sensient alternatively contends that, even if Morgan applies to former high-ranking government officials, “extraordinary circumstances” warrant deposing Kenny. (Id. at 9.) As for Rosoff, Sensient acknowledges that Courts often stay discovery pending determinations of qualified immunity. (Id. at 8.) Nevertheless, Sensient contends that it is appropriate to depose Rosoff without delay. (Id. at 8-9.)

In response, the Government contends the magistrate judge’s application of Morgan to former high-ranking government officials is neither clearly erroneous nor contrary to law. (Gov’t. Br. 3.) The United States alternatively contends that, even if Morgan is inapplicable to former high-ranking government officials, Sensient has failed to demonstrate why it is entitled to depose Whitman. Accordingly, the United States contends that the decision granting the motion to quash Whitman’s deposition should be affirmed.

Regarding Kenny, a non-party in the action, she agrees that Morgan applies to former high-ranking government officials. (Kenny Br. 10.) Kenny contends that “ample authority exists ... to apply Morgan to former high-ranking government officials.” (Id.) Kenny additionally contends that Sensient has made no showing that she possessed first-hand knowledge essential to the case in order to warrant the taking of her deposition. (Id. at 13.)

For whatever reason, Rosoff has not submitted papers in opposition to Sensient’s appeal. Essentially then, Sensient’s contentions regarding his deposition go unchallenged on this appeal. These contentions are examined below.

1. Applicability of the Morgan Doctrine to Former Highr-Ranking Government Officials

There is wide agreement among the Circuits that current high-ranking government officials should not be subject to the taking of depositions absent extraordinary circumstances. See Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir.2007) (citing Simplex Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 586 (D.C.Cir.1985); In re United States (Holder), 197 F.3d 310, 313 (8th Cir.1999); In re FDIC, 58 F.3d 1055, 1060 (5th Cir.1995); In re United States, 985 F.2d 510, 512 (11th Cir.1993)); see also Kyle Engineering Co. v. Kleppe, 600 F.2d 226, 231 (9th Cir.1979) (“Heads of government agencies are not normally subject to deposition.”). This agreement stems from the landmark case of United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). In that case, the Supreme Court strongly cautioned against the taking of depositions of high-ranking government officials. Id. As its primary rationale, the Court recognized the importance of protecting the decision-making process of such officials. Id. The Court feared the effects of nettlesome mind-probing and analogized the high-ranking government official to a judge; “[jjust as a judge cannot be subjected to such scrutiny, so the integrity of the administrative process must be equally respected.” Id.

Since Morgan, other courts have discussed additional rationales for the mental process privilege. See Buono v. City of Newark, 249 F.R.D. 469, 470 n. 2 (D.N.J. 2008) (noting the interest in “ensuring that high level government officials are permitted to perform their official tasks without disruption or diversion.”) (citations omitted); accord United States v. Wal-Mart Stores, No. 01-152, 2002 WL 562301, at *1 (D.Md. Mar. 29, 2002) (fearing “litigation-related burdens” might “render their time ... for government service significantly diluted or completely consumed.”). The court in Wok-Mart Stores also observed that a contrary rule might discourage otherwise upstanding individuals from public service. Id. at *3.

Relying on the foregoing, the magistrate judge opined — “the goal of limiting inquiries into a decision maker’s thought process is as equally applicable to a former employee as it is to a current employee.” Sensient II, 2009 WL 303689, at *3. Consequently, he extended the Morgan Doctrine to former high-ranking government officials Whitman and Kenny. Id. at *4-*6.

This decision is neither clearly erroneous nor contrary to law. First and foremost, the Third Circuit has yet to speak on this issue. In the absence of controlling Third Circuit precedent, there can be no error in examining the persuasive authority of other jurisdictions. See Am. Fire and Cas. Co. v. Material Handling Supply, Inc., 2007 WL 2416434, at *1 (D.N.J. Aug. 16, 2007) (holding same). Here, the magistrate judge did just that; he accepted persuasive authority from the District of Maryland. See Wal-Mart Stores, 2002 WL 562301, at *3 (applying Morgan to former high-ranking officials and noting that “[i]f the immunity Morgan affords is to have any meaning, the protections must continue upon the official’s departure from public service.”). The magistrate judge then distinguished the cases upon which Sensient relied, see generally Toussie v. County of Suffolk, No. 05-1814, 2006 WL 1982687 (E.D.N.Y. July 13, 2006); Sanstrom v. Rosa, No. 93-7146, 1996 WL 469589 (S.D.N.Y. Aug. 16, 1996), and observed that in each circumstance the former official possessed such personal knowledge that Morgan protection was unavailing. Sensient II, supra, at *3. Sensient contends the magistrate judge “unfairly dismissed]” these cases because, in its view, Toussie and Sanstrom unequivocally deny the application of Morgan to former high-ranking government officials. (Sensient Br. 13-14.) A brief examination of these cases is therefore necessary.

In Toussie, the district court confronted the issue of whether a former county executive should be subject to deposition. Toussie, 2006 WL 1982687, at *1. The court opined, “The specific rules governing depositions of high level government officials do not apply to Mr. Gaffney as he is no longer the County Executive.” Toussie, supra, at *2. The court then stated, “that is not to say that the depositions of former government officials should be lightly granted.” Id. Continuing in this vein, the court observed that “[generally, the depositions of former government officials are granted where the official has been personally involved in the events at issue in the case.” Id. (citing Gibson v. New York Police Officer Carmody, 1991 WL 161087, at *1 (S.D.N.Y. Aug. 14, 1991)). Based on that general rule, the Court permitted the deposition of the former county executive because of his personal involvement in the case. Id.

Similarly, in Sanstrom the Southern District of New York allowed the deposition of former Governor Mario Cuomo where it was “critical” that the plaintiffs prove his “personal involvement in order to recover damages under 42 U.S.C. § 1983.” See Sanstrom, 1996 WL 469589, at *5. The underlying claims in that case alleged deprivations of due process and equal protection stemming from the New York State Division of Human Rights’ delay in “investigating and processing” claims of discrimination. Id. at *1. The Court did not apply Morgan to former Governor Cuomo; rather, it reasoned in relevant part, “because Mr. Cuomo is no longer governor, he cannot claim this privilege.” Id. at *5. The Court then observed, even if he was still Governor, extraordinary circumstances — i.e. personal involvement — warrant the taking of his deposition. Id. (“[H]e possesses particular information necessary to the development ... of the plaintiffs case ...” (quoting Am. Broad. Co’s. v. United States Info. Agency, 599 F.Supp. 765, 769 (D.D.C.1984))) (brackets omitted).

Although the courts in Toussie and