Breiterman v. U.S. Capitol Police
Civil Action No. 2016-0893
| D.D.C. | Nov 7, 2017Background
- Plaintiff Jodi Breiterman, a former U.S. Capitol Police (USCP) sergeant, alleges sex discrimination and retaliation after disciplinary actions (suspension and later demotion) tied to comments and to her sharing a photo of a found USCP handgun with a reporter.
- Plaintiff subpoenaed non-party Office of Inspector General (OIG) and Inspector General Fay Ropella for documents and deposition testimony about USCP disciplinary policies, OIG recommendations to leadership, and compilations of disciplinary actions.
- Capitol Police Board (CPB), which supervises the IG, moved to quash the subpoenas and for a protective order, invoking relevance objections and the deliberative process privilege for an OIG report and related materials; the dispute was referred to the Magistrate Judge.
- The court conducted in camera review of the OIG report and related documents and received supplemental declarations from the IG explaining the materials and the OIG process.
- The court found the OIG report and most underlying drafts, interview notes, and working documents to be predecisional and deliberative and therefore protected by the deliberative process privilege, but ordered limited disclosure of a single sentence from one interview note that specifically referenced Breiterman.
- The court also quashed subpoenas seeking materials and testimony duplicative of prior discovery from USCP (available from first‑hand sources) and quashed the deposition subpoena for IG Ropella as unduly burdensome and cumulative (Ropella is a high‑ranking official with no unique, firsthand knowledge).
Issues
| Issue | Plaintiff's Argument | Defendant/Movant's Argument | Held |
|---|---|---|---|
| Whether the OIG report is discoverable | Report will yield comparators and show inconsistent discipline | Report is irrelevant to individual discipline and is protected by deliberative process privilege | Quashed: report is predecisional, deliberative, not relevant to claims; privilege protects it |
| Whether documents underlying the OIG report must be produced | Underlying materials may show facts/comparators for discrimination claim | Underlying drafts, notes, interview summaries are deliberative and privileged; some info duplicative of USCP discovery | Quashed except one sentence in Privilege Log Entry 7 referencing Breiterman must be produced (may be designated CONFIDENTIAL) |
| Whether OIG/IG must produce testimony re: policies, recommendations, compilations | Testimony needed to identify comparators and OIG recommendations | Testimony would be duplicative, unduly burdensome; recommendations are privileged; OIG lacks firsthand knowledge | Quashed: testimony re: OIG report/recommendations privileged; testimony on policies duplicative of prior USCP depositions; testimony about record‑keeping unnecessary |
| Whether deposition of IG Ropella should be compelled | Plaintiff seeks broad testimony about disciplinary practices and OIG matters | IG is a high‑ranking official without firsthand knowledge; deposition would be duplicative and unduly burdensome | Quashed: IG deposition denied (high‑ranking official rule and undue burden/duplication) |
Key Cases Cited
- Watts v. Securities & Exchange Commission, 482 F.3d 501 (D.C. Cir.) (Rule 45 privilege/undue burden standard applies to both document and testimonial subpoenas)
- Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (U.S. 1978) (discovery relevance is construed broadly)
- Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (U.S. 2001) (deliberative process privilege protects advisory opinions and recommendations)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (deliberative process privilege origins)
- Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429 (10th Cir.) (distinguishing factual from deliberative material; drafts and deliberations protected)
- Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir.) (privilege shields interview summaries when selection/organization of facts reflects deliberation)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir.) (deliberative process privilege analysis; factual material intertwined with deliberative material may be protected)
- In re Anthem, Inc. Data Breach Litigation, 236 F. Supp. 3d 150 (D.D.C.) (application of deliberative process privilege and balancing test)
- Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir.) (public disclosure may chill candid agency communications)
- Flanagan v. Wyndham International Inc., 231 F.R.D. 98 (D.D.C.) (motions to quash subpoenas are extraordinary and movant bears heavy burden)