EMW Women's Surgical Center, P.S.C. v. Glisson, 3:17-cv-00189

Background

Plaintiffs (EMW Women’s Surgical Center and intervenor Planned Parenthood of Indiana and Kentucky) challenge Kentucky statute KRS § 216B.0435 requiring abortion clinics to maintain written hospital transfer and ambulance transport agreements, alleging First and Fourteenth Amendment violations after state found their agreements deficient and threatened license revocation.
Planned Parenthood intervened and added Governor Matthew Bevin as a defendant, alleging he caused agents to obstruct Planned Parenthood’s Louisville clinic via misapplication of the statute and regulations.
Planned Parenthood noticed a deposition of Governor Bevin; defendants moved for a protective order and to quash, arguing he is a high-ranking official without first‑hand knowledge and that the deposition would be a fishing expedition/harassment.
Planned Parenthood relied on Serrano v. Cintas Corp. and submitted an e-mail thread suggesting gubernatorial involvement in transfer-agreement decisions as justification for the deposition.
The court considered Rule 26 protective-order standards, the “extraordinary circumstances”/apex doctrine applied to high-level officials, and Serrano’s admonition that protective orders require particularized facts showing harm.
The court found no extraordinary circumstances or first‑hand knowledge tying Bevin to the disputed actions, accepted defendants’ particularized showing that the deposition would be harassing/fishing, and granted the protective order preventing Governor Bevin’s deposition.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Governor Bevin may be deposed	Serrano requires strict Rule 26 analysis; email evidence and intervenor allegations justify deposition	Bevin is a high‑ranking official without first‑hand knowledge; deposition would harass and unduly burden him	Deposition barred: no extraordinary circumstances; protective order granted
Whether Serrano’s CEO/apex holding applies to a governor	Serrano’s standard governs and disfavors protective orders absent specific harms	High‑ranking governmental officials warrant deference and limited depositions under apex/extraordinary‑circumstances test	Court applied principles protecting high officials and found Serrano did not compel permitting this deposition
Whether email thread establishes first‑hand knowledge or extraordinary circumstances	Email referencing gubernatorial ‘‘consternation’’ places governor in middle of decisions	Email contains contradictory statements and lacks probative weight; other depositions show no improper communications with Bevin	Email alone insufficient; no first‑hand knowledge shown
Whether other discovery shows necessity of Bevin’s testimony	Intervenor points to multiple depositions and communications suggesting contacts with Bevin	Defendants show depositions produced no evidence tying Bevin to the challenged decisions; only one witness described incidental communication	Court finds other discovery negates necessity; Bevin’s deposition would be a fishing expedition

Key Cases Cited

Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012) (apex‑doctrine/apex‑level deponent analysis and need for particularized showing to justify protective order)
Nemir v. Mitsubishi Motors Corp., 381 F.3d 540 (6th Cir. 2004) (protective order requires particularized demonstration of harm)
In re United States (Kessler), 985 F.2d 510 (11th Cir. 1993) (protecting high‑ranking officials from burdensome depositions absent extraordinary circumstances)
In re United States (Holder), 197 F.3d 310 (8th Cir. 1999) (deposition of high‑level officials limited where others can provide information)
Simplex Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575 (D.C. Cir. 1985) (recognizing burdens on high officials and limiting depositions)
Bogan v. City of Boston, 489 F.3d 417 (1st Cir. 2007) (cases discussing limits on deposition of high‑ranking public officials)