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United States v. Sensient Colors

January 28, 2009


The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge

[Doc. Nos. 85, 91, 94]


The issue before the Court is whether to bar, stay or permit the depositions of three former or present employees of the Environmental Protection Agency ("EPA"). These individuals are Christine Todd Whitman ("Whitman"), former EPA Administrator, Jane M. Kenny ("Kenny"), former Regional Administrator of EPA Region II, and David Rosoff ("Rosoff"), the On-Scene Coordinator for the Site at issue in this litigation. Whitman and Kenny filed motions to quash deposition subpoenas, and Rosoff filed a motion for protective order. Because the relevant issues overlap, the Court will address the three motions together. The Court has exercised its discretion to decide the motions without oral argument. See Fed. R. Civ. P. 78 and L. Civ. R. 78.1.*fn1 For the reasons to be discussed, the motion as to Whitman is GRANTED and the motions as to Kenny and Rosoff are GRANTED in part and DENIED in part.


In March 2007, plaintiff, on behalf of the EPA, filed this cost recovery action against defendant, Sensient Colors Inc. ("Sensient"), pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§9601-9675 (2000). Plaintiff alleges Sensient is responsible for the contamination at the General Color Site ("Site") in the City of Camden, New Jersey, and is liable to reimburse it for costs in excess of $16 million that the EPA spent to respond to the release or threatened release of hazardous substances at the Site. It is alleged that from 1922 to 1988, Sensient's predecessor manufactured inorganic and organic pigments and dyes at the Site.*fn2

In addition to this case, Sensient is also a defendant in a related civil action pending in the State Superior Court of New Jersey, Law Division, Camden County (CAM-L-6579-03). In that case, Sensient's neighbor, Pleasant Gardens Realty Corp., alleges Sensient contaminated its property and is liable for the cleanup costs. The Court understands that the trial of the Pleasant Gardens case was recently postponed due to Sensient's request for additional discovery.

Part of Sensient's defense in this case focuses on its objection to the EPA's characterization of the work at the Site as a "removal action." Sensient points out that EPA's actions at the Site spanned eight years and cost $16 million. However, Sensient notes that CERCLA prohibits plaintiff from recovering removal costs in excess of $2 million, or 12 months in duration. See 42 U.S.C. §9604(c)(1).*fn3 Sensient also contends that the EPA deliberately mischaracterized its response activity at the Site as an emergency removal action in order to obtain funding to conduct a community redevelopment at Sensient's expense. (See Sensient's Answer to Plaintiff's Complaint, Eighth Affirmative Defense [Doc. No. 59].)

Sensient argues that its defense is supported by its recent discovery of Rosoff's February 7, 2006 e-mail.*fn4 Sensient believes Rosoff's e-mail, and Kenny's September 30, 2003 letter to then Camden Chief Operating Officer Randy Primas (discussed infra), confirms that the EPA purposely mischaracterized its response at the Site as a removal action instead of a remedial action. Sensient contends that these documents demonstrate that the soil excavation at the Site was motivated by a desire to assist Camden in redeveloping the Site at Sensient's expense.

Shortly after Sensient learned of Rosoff's e-mail it filed its motion for leave to amend its answer and to file a third-party complaint [Doc. No. 66]. Sensient also served the subpoenas and deposition notices that are the subject of this discovery dispute. Sensient proposes to amend its answer to add affirmative defenses, to include a counterclaim against the plaintiff and the EPA, and to assert individual third-party claims against Rosoff, Kenny, and other unknown EPA employees or agents. Sensient's motion has been fully briefed and will be decided shortly.

As noted, Sensient recently issued subpoenas and deposition notices to Whitman, Kenny and Rosoff. Plaintiff filed the motion to quash Whitman's deposition. Separately engaged counsel filed motions to quash and for protective orders on behalf of Kenny and Rosoff. Primarily relying upon United States v. Morgan, 313 U.S. 409 (1941), and subsequent cases interpreting the decision, Whitman argues her deposition should be quashed because she is a former high level government official. She also argues she does not have unique personal knowledge about relevant issues that cannot be obtained elsewhere. Kenny also relies on Morgan. In addition, Kenny argues Sensient should not be permitted to obtain discovery in this court that it could not take in the Pleasant Gardens litigation.*fn5 Kenny also argues her deposition should not take place until she finds out if she will be joined as a party and has an opportunity to present her qualified immunity defense. Rosoff argues his deposition should not take place until he has an adequate opportunity to prepare, until he knows if he will be joined and until he has an opportunity to present his qualified immunity defense. Sensient counters by arguing that Morgan does not apply to former government employees and that Whitman and Kenny are not high ranking government officials. Alternatively, Sensient argues that even if Morgan applies extraordinary circumstances justify the depositions of Whitman and Kenny. Sensient also argues discovery should not be delayed by the deponents' qualified immunity defense, and the depositions should proceed immediately after the Court decides Sensient's motion to amend.


Christine Todd Whitman*fn6

The first issue to address regarding Whitman's motion is whether her deposition is subject to the Morgan doctrine. The parties agree that the Morgan decision has come to support the general proposition that depositions of current high ranking government officials concerning their official duties should not be taken absent extraordinary circumstances. See Buono v. City of Newark, 249 F.R.D. 469, 470 n.2 (D.N.J. 2008)("top executive department officials should not be required to appear for depositions or testify at trial absent extraordinary circumstances, ...."); Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007)("The need for limited access to high government officials through the discovery process is well established"). See also In re United States, 197 F.3d 310, 313-14 (8th Cir. 1999); In re FDIC, 58 F.3d 1055, 1062 (5th Cir. 1995); In re United States, 985 F.2d 510, 512 (11th Cir. 1993); Franklin Sav. Ass'n v. Ryan, 922 F.2d 209, 212 (4th Cir. 1991). The rule recognizes that high ranking government officials have greater duties and time constraints than other witnesses, and without appropriate limitations these officials will spend an inordinate amount of time tending to pending litigation. Kessler, 985 F.2d at 512. The rule is also designed to protect officials from unwarranted inquiries into their decision-making process. Morgan, 313 U.S. at 422. See also Franklin Sav. Ass'n, 922 F.2d at 211 (citations omitted)(absent extraordinary circumstances, a government decision maker should not be compelled to testify about her mental processes in reaching a decision, including the manner and extent of her study of the record and her consultation with subordinates).

Sensient argues the Morgan doctrine does not apply to former employees. Although the Third Circuit has not addressed the issue, the Court rejects Sensient's argument and finds that Morgan applies to former high-ranking government employees. See United States v. Wal-Mart Stores, C.A. No. 01-152, 2002 WL 562301 (D. Md. March 29, 2002). It is true that the deposition of a former official may not interfere with her governmental duties to the same extent as if she were a current employee. However, the possibility that a current employee may be deposed after she leaves government service is likely to impact how the employee performs her duties. It is not far fetched to conclude that a government employee's work performance may be "chilled" if she may be deposed on her thought process after she leaves government service. Thus, the rationale ...

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