UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

PAUL HARD,

Plaintiff,

v.

ROBERT BENTLEY, in his official capacity as
Governor of the State of Alabama; LUTHER
JOHNSON STRANGE, III, in his official capacity
as Attorney General of the State of Alabama; PAT
FANCHER;

Defendants.





Civil Action No. 2:13-cv-922-WKW






PLAINTIFFS OPPOSITION TO STATE DEFENDANTS
MOTION FOR PROTECTIVE ORDER CONCERNING REQUESTED DEPOSITION

The State Defendants (the Governor and Attorney Generals) Motion for Protective
Order Concerning the Requested Deposition of Governor Robert Bentley (No. 51) should be
denied because this is an unusual circumstance where the deposition is likely to lead to discovery
of admissible evidence that is unavailable from other sources given the Governors leadership
against same-sex marriages. The deposition will be narrow in scope and time with respect to the
Governors schedule.
Defendants Motion for Protective Order intertwines with two other pending motions and
accompanying briefs: Plaintiffs First Motion To Compel (No. 46) and Defendants Motion To
Dismiss the Claims Against Governor Bentley (No. 48). The three should be considered in
tandem; pertinent discussion developed for the other motions is incorporated by reference below
to minimize repetition.

Case 2:13-cv-00922-WKW-SRW Document 55 Filed 08/07/14 Page 1 of 8
2

The Governors Deposition Is Warranted
State governors may be deposed in federal court actions involving private litigants.
Hadnott v. Amos, 291 F. Supp. 309, 310-11 (M.D. Ala. 1968). Many governors, including the
Governor of Alabama by this Court, have been ordered to be deposed or be made available to
testify at trial. E.g., U.S. v. McGregor, No. 10-cr-00186 (M.D. Ala., Nov. 28, 2011) (ordering
former Alabama governor to be made available for trial); Coleman v. Schwarzenegger, No. Civ
S-90 0520, 2008 WL 3843292 (E.D. Cal. Aug. 14, 2008) (ordering deposition of California
governor).
High-ranking officials, including governors, are usually spared the burden of being
deposed, except where there is some reasons to believe that the deposition will produce or lead
to admissible evidence and alternative witnesses are insufficient. Bagley v. Blagojevich, 486 F.
Supp. 2d 786, 789 (C.D. Ill. 2007) (quoting Stagman v. Ryan, 176 F.3d 986, 99495 (7th
Cir.1999)); see also Marisol A. v. Guilliani, No. 95-cv-10533 1998 WL 132810 *3 (S.D.N.Y.
March 23, 1998) (Courtsrequire that the party seeking the deposition demonstrate that the
officials testimony will likely lead to the discovery of admissible evidence and is essential to
that partys case.) (internal quotation marks omitted). A deposition is appropriate, as here,
where an official approved or is personally involved in matters at issue in the litigation. See
Bagley, 486 F. Supp. 2d at 789; Green v. Baca, 226 F.R.D. 624, 648-49 (C.D. Cal. 2005) order
clarified, CV 02-204744, 2005 WL 283361 (C.D. Cal. Jan. 31, 2005) (depositions are
appropriate for top officials when they have direct personal factual information pertaining to
material issues in an action [and] where the information to be gained .. [sic] is not available
through any other source.) (citations omitted).

Case 2:13-cv-00922-WKW-SRW Document 55 Filed 08/07/14 Page 2 of 8
3


A. The Governors Deposition Is Likely To Produce Relevant and Admissible Evidence.
The Governors deposition is appropriate because he is likely to possess relevant and
admissible information relating to any government purpose of the Sanctity Laws and Ala. Code
16-40A-2 (the anti-gay sex education law), the subject of Plaintiffs Motion To Compel (No.
46). See Bagley, 486 F. Supp. 2d at 788-89 (When a governor is likely to possess relevant
information, requiring him to be deposed is reasonable.).
Plaintiff incorporates by reference his Opposition to Governor Bentleys Motion To
Dismiss on the Basis that He Purportedly Has No Authority in Connection with Alabamas
Marriage Laws (No. 53) including the supporting declaration and exhibits that together detail the
Governors specific and substantial undertakings with respect to the Sanctity Laws including his
pledge to work everyday [sic] to continue to protect the sanctity of marriage in Alabama. See
Decl. of David C. Dinielli in Oppn to Governor Bentleys Mot. To Dismiss, Ex. A (No. 53-3).
Plaintiff should be permitted to question the Governor as to any government purpose behind such
work against marriage equality.
Significantly, the Governor, in this case, has provided a sworn interrogatory response in
which he has, under oath, explained Alabamas interests in prohibiting same-sex marriage. (State
Defs. Bentley and Stranges Resps. to Pl.s Interrogs. is attached as Ex. A to Pl.s Reply to State
Defs. Oppn to Pl.s First Mot. To Compel (No. 54).) Therein the Governor swore that the
response was correct to the best of his knowledge, based upon personal knowledge and
information gathered from documents and persons supervised. Id. at 4. The fact that the
Governor provided a sworn interrogatory response completely disproves the proposition (now
asserted by Defendants without any evidence) that he has no personal knowledge regarding the
Case 2:13-cv-00922-WKW-SRW Document 55 Filed 08/07/14 Page 3 of 8
4

purpose of the Sanctity Laws. Because the State Defendants bear the burden on the Motion for a
Protective Order, see infra point C, and this is their chief argument for the Motion, it should be
denied for this reason alone.
Moreover, the Governors sworn interrogatory response is irrational, incoherent, and, by
its own specification, incomplete and therefore invites deposition questioning both with respect
to the Sanctity Laws and the anti-gay sex education law, for the reasons presented in Plaintiffs
Motion To Compel (No. 46) and supporting reply (No. 54) as well as section E, in particular, of
Plaintiffs Opposition to Governor Bentleys Motion To Dismiss (No. 53). Even if the
Governors interrogatory response were complete and coherent, which it is not, Plaintiff should
be permitted to depose him with respect to the basis for that response.
The reality that the Defendants lack a legitimate basis for the Sanctity Laws, as
confirmed by every federal court to examine similar laws elsewhere since United States v.
Windsor, 133 S. Ct. 2675 (2013),
1
does not excuse the Defendants from discovery of that central
question in this case. The Defendants, moreover, have provided factually illegitimate reasons for
the Sanctity Laws and should comply with related discovery to get nearer to the truth, the
objective of discovery. See, e.g., In re Narciso, 154 B.R. 527, 529 (Bankr. E.D. Ark. 1992) (The
discovery rules are meant to serve as a vehicle for ascertainment of the truth; false answers
subvert truth and truth seeking.); Miller v. TimeWarner Communications, Inc., No. 97 Civ.
7286, 1999 WL 739528, at *1 (S.D.N.Y. Sept. 22, 1999) (A lawsuit is supposed to be a search
for the truth, and the tools employed in that search are the rules of discovery.).
Absent further clarity, the State Defendants thus appear to lack any legitimate purpose for
the Sanctity Laws, itself an indication of animus. See Windsor, 133 S. Ct. at 2693 (2013) (In

1
See Notice of Pl.s Compilation of Post-Windsor Decisions Finding Marriage Restrictions
Unconstitutional (No. 42) including Supplemental Notice (No. 45).
Case 2:13-cv-00922-WKW-SRW Document 55 Filed 08/07/14 Page 4 of 8
5

determining whether a law is motived by an improper animus or purpose, [d]iscriminations of
an unusual character especially require careful consideration.). The Governors deposition
testimony with respect to the purpose of the Sanctity Laws including his continuing
magnification of those laws is relevant to the discernment of any government purpose of those
laws, or lack thereof; a matter that the defense seeks to obfuscate by this Motion.
B. Alternate Witnesses and Discovery Methods Are Insufficient.
The Governors deposition should be permitted because Plaintiff lacks alternate routes to
obtain equivalent discovery. Alternate witnesses are insufficient when it can be shown that the
high government official is the ultimate decision maker and personally involved in the
challenged law or policy. See Bagley, 486 F. Supp. 2d at 789-90 (governors actions supporting
the challenged law made deposition appropriate).
The Governors deposition is further necessary because other discovery efforts have
revealed a dearth of evidence of any actual purpose of the Sanctity Laws including legislative
history reflecting little more than the text of the Sanctity Laws and a record of their introduction
and passage. Plaintiffs counsel issued subpoenas for documents reflecting any purposes behind
the Sanctity Laws and the anti-gay sex education law. Those subpoenas resulted in a meager
yield from Mike Hubbard, the Speaker of the Alabama House of Representatives; Jeff
Woodward, the Clerk of the Alabama House of Representatives; and Patrick Harris, the
Secretary of the Alabama Senate.
Remarkably, the only individual the State Defendants suggest in their Motion for
Protective Order who may be an appropriate deponent instead of the Governor is Defendants
expert, Sherif Girgis, who according to his report in this case is a philosopher specializing in
Aristotle and is currently a law student in Connecticut. Girgis has no discernable connection to
Case 2:13-cv-00922-WKW-SRW Document 55 Filed 08/07/14 Page 5 of 8
6

Alabama or the Sanctity Laws apart from his invention of a supposed rationale relating to what
he offers as the supremacy of conjugal marriage from a philosophical perspective. State
Defendants assertion that identifying the purpose underlying the Sanctity Laws is the purview
of lawyers and experts, not fact witnesses, Motion for Protective Order at 4 (No. 51), further
underscores the need for a deposition to look past the smoke screen. See Johnson v. Manitowoc
Boom Trucks, Inc., 484 F.3d 426, 434 -435 (6th Cir. 2007) (expert theory generated intentionally
for litigation raises a red flag); U.S. v. Procter & Gamble Co., 356 U.S. 677, 682 (1958)
(Modern instruments of discovery serve a useful purpose . . . [they] make a trial less a game of
blind mans buff and more a fair contest with the basic issues and facts disclosed to the fullest
practicable extent.).
C. The Defendants Have Failed To Meet Their Burden of Persuasion.

Under Rule 26(c) of the Federal Rules of Civil Procedure, the movant seeking a
protective order has the burden to demonstrate good cause, and must make a particular and
specific demonstration of fact as distinguished from stereotyped and conclusory statements
supporting the need for a protective order. E.g., Ellis v. City of Anniston, Ala., 289 F.R.D. 352,
354-55 (N.D. Ala. 2013) (citing U.S. v. Garrett, 571 F.2d 1323, 1326 n. 3 (5th Cir.1978)).
Defendants have failed to include any such demonstration in their Motion for Protective Order,
instead relying on conclusory, and at times untrue, assertions such as that the Governor cannot
provide relevant testimony. Mot. for Protective Order at 2-4 (No. 51).
Instead, denial of the Motion is appropriate for the additional reason that State
Defendants have not produced any evidence, such as an affidavit, to establish that the Governor
lacks personal knowledge that relates to Plaintiffs claims. See Bagley, 486 F. Supp. 2d at 789-90
(The Court notes that the State Defendants have not produced any evidence, such as an
Case 2:13-cv-00922-WKW-SRW Document 55 Filed 08/07/14 Page 6 of 8
7

affidavit, to establish that the Governor lacks personal knowledge that relates to Plaintiffs
claims.); Green, 226 F.R.D. at 650 (denying motion to preclude high-ranking official from
deposition because he is the named defendant in this case, and has not demonstrated that he
lacks personal knowledge of relevant facts). The same is true here except that the Governor has
in fact sworn to have personal knowledge, as described supra; the deposition should accordingly
be permitted.
D. The Deposition Will Be Focused and Respectful of the Governors Schedule.
In recognition of the Governors busy schedule, the deposition will be short, focused on
two designated topics central to this matter, and can be held at his office at a time convenient for
his schedule. See Motion for Protective Order, Ex. B (No. 51).
Conclusion
For the foregoing reasons, Plaintiff respectfully requests that the Court deny Defendants
Motion for a Protective Order (No. 51).
August 7, 2014

Respectfully submitted,

SOUTHERN POVERTY LAW CENTER

By: /s/ Samuel Wolfe

David C. Dinielli* (California Bar No. 177904)
Samuel Wolfe (ASB-2945-E63W)
400 Washington Avenue
Montgomery, Alabama 36104
Telephone: (334) 956-8200
Facsimile: (334) 856-8481
david.dinielli@splcenter.org
sam.wolfe@splcenter.org
*Admitted pro hac vice

(Attorneys for Plaintiff)
Case 2:13-cv-00922-WKW-SRW Document 55 Filed 08/07/14 Page 7 of 8
8

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 7th day of August, 2014, I electronically filed the
foregoing document with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the following counsel of record:
David Bryson Byrne, Jr., Esq.
Office of the Governor
State Capitol
600 Dexter Avenue
Suite NB-05
Montgomery, AL 36130

James William Davis, Esq.
Laura Elizabeth Howell, Esq.
State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, AL 36130

Gabriel Joseph Smith, Esq.
Foundation For Moral Law
1 Dexter Avenue
Opelika, AL 36103




/s/Samuel Wolfe


Case 2:13-cv-00922-WKW-SRW Document 55 Filed 08/07/14 Page 8 of 8