The First Appellate District recently issued a decision confirming that California law generally prohibits the deposition of a highly placed public officer absent a limited exception to that rule.  The two-pronged exception applies when: (1) the high-ranking official has personal knowledge relating to material issues in the lawsuit and (2) the deposing party demonstrates the information to be gained is not available from any other source.  The reasoning behind the general rule of prohibiting the depositions of high ranking officials is to prevent such proceedings from consuming an officials’ time and disrupting government business.

Facts of the Case

In the case underlying this decision, the Contractors’ State License Board (the “Board”) initiated disciplinary proceedings against Black Diamond Electric, Inc. (“BDE”).  In response, BDE filed a complaint in Contra Costa Superior Court seeking declaratory relief as to the definitions of certain terms in the Labor Code.  As part of that action, BDE served a notice of deposition for David R. Fogt, the Board’s secretary and chief executive officer.  The Board filed a motion for a protective order to prevent the deposition.  Among the Boards’ contentions was that heads of government agencies are generally not subject to deposition.

After the parties were heard, the superior court denied the Board’s request for a protective order to prevent Mr. Fogt’s deposition.  The Board then sought a writ of mandate from the appellate court to prevent the deposition.

Who is a Highly Placed Government Official?

In the past, California courts have issued writs of mandate to prevent the depositions of the State Controller, Attorney General, Director of California Employment Development Department, Director of California Department of Health Services, Governor, and members of a state licensing board.  Accordingly, the appellate court in this case found that as secretary and executive officer of the Board, Mr. Fogt is a highly placed government official.

The Exception to the Rule

The deposing party has the burden of demonstrating compelling reasons to permit the deposition.  As part of that, the party is required to show that a highly placed government official has direct, personal, factual information pertaining to material issues in the lawsuit and that the information to be gained during deposition is not available elsewhere.

  • The Highly Placed Public Official Must Have Direct, Personal, Factual Information

BDE sought to depose Mr. Fogt to inquire about the Board’s interpretation and enforcement of the Labor Code.  The appellate court held that the information BDE sought is not factual and unequivocally legal.  It found that while Fogt had knowledge of the Board’s interpretation of the Labor Code, that knowledge is not factual information.  The court reasoned that deposing parties cannot ask agency officials how they personally interpret statutes since personal views are irrelevant to the solely legal issue of statutory construction.

  • The Deposing Party Must Show the Information Is Not Available From Any Other Source

The appellate court found that BDE was unable to show the information to be gained during deposition was not available elsewhere.  At the superior court level, BDE argued the Board’s enforcement of the Labor Code was contrary to the Board’s own published interpretations.  In doing so, BDE conceded that published interpretations of the statutes existed.  The appellate court found that BDE could seek such materials from the Board during discovery.

Accordingly, the appellate court directed the superior court to vacate its order denying the Board’s motion for a protective order because Mr. Fogt was a highly placed public official, he had no factual knowledge pertaining to material issues in the case, and BDE did not show it could not retrieve the information from another source.

A Good Result for Government Agencies

Government agencies can rest assured that their highly placed officials generally will not be subject to depositions that can be time consuming and disruptive to government business.  An exception to that rule applies when:  (1) the official has factual knowledge and (2) the information sought is not obtainable from an alternative source.  If the party noticing the deposition cannot satisfy both prongs of the exception, the government agency should object to the deposing party’s notice of deposition.