CHURCH OF SCIENTOLOGY OF BOSTON, Plaintiff,
INTERNAL REVENUE SERVICE, Defendant.
Civ. A. No. 90-11069-N.
United States District Court,
Nov. 16, 1990.
Church being investigated by Internal Revenue Service (IRS) sought discovery
from IRS. IRS moved for protective order and/or to quash deposition of IRS
official. The District Court, Marianne B. Bowler, United States Magistrate
Judge, held that: (1) IRS failed to show that documents were compiled for
"legitimate law enforcement purposes," and (2) church could not depose IRS
Motion allowed in part, and denied in part.
Court that issues subpoena has inherent power to vacate it.
 FEDERAL CIVIL PROCEDURE
Party seeking protective order has burden of showing existence of good cause
for issuance of protective order. Fed.Rules Civ.Proc.Rule 26(c), 28
 FEDERAL CIVIL PROCEDURE
Where governmental agency seeks exemption from discovery on grounds that
documents were compiled for "legitimate law enforcement purposes," court
considers whether requested information was demonstrated to have been compiled
for law enforcement purposes, and whether agency showed that release of
material will result in one of harms specified in statute. 5 U.S.C.A. s
 FEDERAL CIVIL PROCEDURE
Internal Revenue Service (IRS) failed to show it had legitimate purpose for tax
inquiry directed at church, and thus, documents were not protected from
discovery by "law enforcement purposes" exemption, and church was entitled to
uncover certain facts related to legitimacy of investigation. 5 U.S.C.A. s
 FEDERAL CIVIL PROCEDURE
Although in general, heads of agencies and other top government executives are
normally not subject to depositions, exception to this general rule exists
concerning top officials who have direct personal factual information
pertaining to material issues in action; top government official may, however,
only be deposed upon showing that information to be gained from such deposition
is not available through any other source.
 FEDERAL CIVIL PROCEDURE
Although church was entitled to discovery from Internal Revenue Service (IRS)
with regard to legitimacy of tax investigation aimed at it, church could not
depose senior IRS official; church made no showing that requested information
was unavailable through any other source.
*9 Earle C. Cooley Cooley, Manion, Moore & Jones, Boston, Mass., Laurie
Bartilson Bowles & Moxon, Hollywood, Cal., for plaintiff.
Michael J. Martinean U.S. Dept. of Justice, Tax Div., Harry J. Giacometti U.S.
Dept. of Justice, Washington, D.C., George Bunsen Henderson U.S. Atty's. Office
Boston, Mass., for defendant.
ORDER RE: MOTION FOR PROTECTIVE ORDER AND/OR TO QUASH DEPOSITION SUBPOENA
(DOCKET ENTRY # 16)
MARIANNE B. BOWLER, United States Magistrate Judge.
Defendant filed a Motion for Protective Order and/or to Quash Deposition
Subpoena on July 24, 1990. (Docket Entry # 16). This court held a hearing
pursuant to defendant's motion on October 1, 1990. Defendant requests this
court to enter a protective order and/or an order quashing the deposition
subpoena of Marcus S. Owens *10 ("Mr. Owens"), the Director of Exempt
Organizations Technical Division, National Office, Internal Revenue Service
("I.R.S."). The defendant asserts the following grounds in support of its
motion: (1) Mr. Owens has no relevant or admissible information; (2) the
discovery sought exceeds the bounds permissible in a Freedom of Information
Act ("FOIA") case; and (3) the discovery is burdensome and oppressive to the
defendant. (Docket Entry # 16, p. 1).
The plaintiff, on the contrary, asserts that Mr. Owens does possess relevant
information and that the proposed discovery does not exceed the bounds of that
permitted under the FOIA. (Docket Entry # 17).
Plaintiff filed this action on April 27, 1990, to obtain the release of
records allegedly withheld pursuant to a request under the FOIA made by the
plaintiff to the Boston District of the I.R.S. on October 2, 1989 for records
relating to the plaintiff. (Docket Entry # 17, p. 3 and # 1). A conference
was held by Judge Nelson on July 16, 1990, at which time the court ordered the
defendant to produce a Vaughn index describing the documents withheld by the
I.R.S. The court also ordered a stay of discovery pending the submission of
the Vaughn index with the exception of the deposition in question and a
Rule 30(b)(6) deposition of the defendant. (Docket Entry # 17, p. 6).
Counsel for the defendant then refused to allow the deposition of Mr. Owens to
proceed and pursued the motion in question.
 It is clear that a court that issues a subpoena has the inherent power
to vacate it. United States v. International Business Machines Corp., 406
F.Supp. 175 (S.D.N.Y.1975). "The basis for excusal from the duty to appear and
give oral testimony is severely restricted, however, and decisions quashing
subpoenas ad testificandum are accordingly rare." 5A J. Moore & J. Lucas,
Moore's Federal Practice P 45.05 (1990); see Horizons Titanium Corp. v.
Norton Co., 290 F.2d 421 (1st Cir.1961) (until witness appears there is no
guide to his testimony).
 Defendant's request for a protective order is governed by
Fed.R.Civ.P. 26(c) which provides in pertinent part:
Upon motion by a party ... and for good cause shown, the court ... may make
any order which justice requires to protect a party ... from annoyance,
embarrassment, oppression, or undue burden or expense, including (1) that the
discovery not be had; (2) that the discovery may be had only on specified
terms and conditions ... (4) that certain matters not be inquired into.
Id. The party seeking a protective order has the burden of showing the
existence of good cause for the issuance of a protective order. See Public
Citizen v. Liggett Group, Inc., 858 F.2d 775, 778 (1st Cir.1988), cert.
denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989).
This court now turns to a consideration of the particular grounds
asserted by the defendant in support of its motion.
"Relevancy is to be broadly construed at the discovery stage of litigation and
a request for discovery should be considered relevant if there is any
possibility that the information sought may be relevant to the subject matter
of the action." Gagne v. Reddy, 104 F.R.D. 454, 456 (D.Mass.1984) (quoting
Miller v. Doctor's General Hospital, 76 F.R.D. 136, 138 (W.D.Okla.1977)).
Mr. Owens alleges that he has no personal knowledge of the FOIA request or
appeal submitted by the plaintiff. He further alleges that he has no personal
knowledge of the documents provided to or withheld from the plaintiff in
response to the above mentioned request and appeal and that he has no personal
knowledge of the FOIA exemptions asserted by the I.R.S. in withholding the
documents. (Declaration of Marcus Owens, Docket Entry # 16). Mr. Owens was,
however, apparently involved in critical events concerning the validity of the
FOIA exemptions claimed by the I.R.S. Mr. Owens ordered that a conference be
held in October of 1988 which subsequently *11 resulted in the "examination"
of the plaintiff and the issuance of a summons by the I.R.S. and ensuing
litigation to enforce the summons. United States v. Church of Scientology
of Boston, 739 F.Supp. 46 (D.Mass.1990). It appears from this information that
Mr. Owens likely possesses information regarding the scope of the documents
requested by the plaintiff. Such information is relevant for the purposes of
B. Permissibility of discovery of the Information Sought Pursuant to the FOIA
Plaintiff seeks the testimony of Mr. Owens to obtain evidence regarding "the
scope of records at issue and his knowledge of the factual basis for
defendant's claims for exemption of the records at issue in this case."
(Docket Entry # 9, P 3). Plaintiff claims, in support of the deposition, that
discovery under the FOIA is available to determine "whether withheld documents
are exempt from disclosure." (Docket Entry # 18, p. 9). Discovery, however,
is often limited to a determination of whether complete disclosure has been
made, for example, whether a thorough search for the documents has occurred.
Founding Church of Scientology of Washington, D.C., Inc. v. National
Security Agency, 610 F.2d 824, 832-34 (D.C.Cir.1979); Exxon Corp. v.
Federal Trade Comm'n, 466 F.Supp. 1088, 1092-96 (D.C.D.C.1978).
 In the present action, the IRS is claiming that the documents in
question are exempt because they were compiled for "legitimate law enforcement
purposes." [FN1] Judicial consideration of exemption seven requires a two-part
inquiry: (1) the requested information must be demonstrated to have been
compiled for law enforcement purposes; (2) the agency must show that release
of the material will result in one of the harms specified in the statute.
Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 622, 102 S.Ct.
2054, 2059-60, 72 L.Ed.2d 376 (1982). Initially, in asserting the "exemption
7" justification for nondisclosure, the IRS bears the burden of passing this
threshold test as to whether the information was actually compiled for a
legitimate law enforcement purpose. Id.; see Pratt v. Webster, 673 F.2d
408, 421 (D.C.Cir.1982) (discussing application of exemption 7); Freeman v.
Department of Justice, 723 F.Supp. 1115, 1122 (D.Md.1988) (applying exemption
7); Arenberg v. Drug Enforcement Administration, 849 F.2d 579, 580-81 (11th
Cir.1988) (discussing justifications for exemption); Dunaway v. Webster,
519 F.Supp. 1059, 1075-82 (N.D.Cal.1981) (reviewing exemption 7); see
generally Weisberg v. Department of Justice, 627 F.2d 365
(D.C.Cir.1980) (discussing thoroughness of search to demonstrate documents
properly exempted); Schaffer v. Kissinger, 505 F.2d 389
(D.C.Cir.1974) (burden on government agency to demonstrate documents properly
exempted). Contra King v. Department of Justice, 830 F.2d 210, 231
(D.C.Cir.1987) (if agency claims law enforcement exception, seeking party has
burden to prove investigation was mere pretext).
FN1. 5 U.S.C. s 552(b)(7) ("exemption 7") creates the following
investigatory records compiled for law enforcement purposes, but only to
the extent that the production of such records would (A) interfere with
enforcement proceedings, (B) deprive a person of a right to a fair trial or
an impartial adjudication, (C) constitute an unwarranted invasion of
personal privacy, (D) disclose the identity of a confidential source and,
in the case of a record compiled by a criminal law enforcement authority in
the course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source, (E) disclose investigative
techniques and procedures, or (F) endanger the life or physical safety of
law enforcement personnel
 Based on the majority of the relevant precedent cited above and
the facts of the present case, this court does not find that the IRS has met
that threshold test in the case at hand. Moreover, Judge Tauro, in the
underlying action by the IRS, found that "the IRS has failed to show a
legitimate purpose for its tax inquiry." See Order and Memorandum of U.S.
District Court Judge Tauro, United States v. Church of Scientology of
Boston, Inc., 739 *12 F.Supp. 46, 50 (D.Mass.1990) (Docket Entry # 17,
Exhibit B) (denying government's petition to enforce IRS summons).
Accordingly, the Church of Scientology has a right of discovery in this
matter. The plaintiff is, therefore, entitled to uncover certain facts related
to the legitimacy of the investigation, as the investigation resulted in the
compilation of the potentially exempt documents.
A split of authority exists, however, concerning the permissible scope of a
party's discovery pursuant to the FOIA. [FN2] United States v. Morgan, 313
U.S. 409, 422, 61 S.Ct. 999, 1004-05, 85 L.Ed. 1429 (1941); Weisberg v.
Department of Justice, 627 F.2d 365 (D.C.Cir.1980); Schaffer v. Kissinger,
505 F.2d 389 (D.C.Cir.1974); Exxon Corp. v. Federal Trade Comm'n, 384
F.Supp. 755 (D.C.D.C.1974). Contra Church of Scientology, Int'l v. Internal
Revenue Service, No. CV 89-4504-CBM (Tx) (U.S.D.C.C.D.Cal.), F.S. No. 90-
481 (D.C.D.C.1990) (Docket Entry # 18, Exhibit A; B) (denying request that the
court prohibit inquiry "into the agency's thought process in deciding whether
to assert a particular exemption").
FN2. It is not necessary for this court to assert a further position with
respect to the scope of permissible discovery pursuant to the FOIA in light
of the discussion below.
C. Owen's Position in the I.R.S. as a Bar to his Deposition
Mr. Owens is the Director of Exempt Organizations Technical Division, National
Office of the I.R.S. Mr. Owens occupies a Senior Executive, Level 4 position
and is responsible for the management of the Exempt Organizations Technical
Division. (Docket Entry # 16, p. 4).
 In general, heads of agencies and other top government executives are
normally not subject to depositions. See Simplex Time Recorder Co. v.
Secretary of Labor, 766 F.2d 575, 586-87 (D.C.Cir.1985) (oral deposition of
officials not countenanced); Peoples v. United States Department of
Agriculture, 427 F.2d 561, 567 (D.C.Cir.1970) (supplemental opinion) (court has
discretion to assure that discovery will not unduly burden government
officials); Kyle Engineering Co. v. Kleppe, 600 F.2d 226, 231 (9th
Cir.1979) (heads of government agencies not generally subject to deposition).
The rationale pursuant to this policy is that such officials must be free to
conduct their jobs without the constant interference of the discovery
process. United States v. Miracle Recreation Equipment Co., 118 F.R.D. 100,
104 (S.D.Iowa 1987); see Community Federal Savings and Loan Ass'n v.
Federal Home Loan Bank Board, 96 F.R.D. 619, 621 (D.C.D.C.1983) (deposition of
agency official permitted only when official has relevant first-hand knowledge
of matters not available from another source); Capitol Vending Co. v.
Baker, 36 F.R.D. 45, 46 (D.C.D.C.1964) (oppressive to require government
official to submit to interrogation that would disturb government business).
An exception to this general rule exists concerning top officials who
have direct personal factual information pertaining to material issues in an
action. American Broadcasting Companies, Inc. v. United States Information
Agency, 599 F.Supp. 765, 769 (D.C.D.C.1984).
A top government official may, however, only be deposed upon a showing that
the information to be gained from such a deposition is not available through
any other source. Community Federal Savings and Loan Ass'n v. Federal Home
Loan Bank Board, 96 F.R.D. 619, 621 (D.C.D.C.1983); American Broadcasting
Companies, Inc. v. United States Information Agency, 599 F.Supp. 765, 769
(D.C.D.C.1984); Union Savings Bank v. Saxon, 209 F.Supp. 319
(D.C.D.C.1962) (deposition may be permitted where action personal to
deponent); United States v. Miracle Recreation Equipment Co., 118 F.R.D.
100, 105 (S.D.Iowa 1987) (evidence sought must not be available through some
other less burdensome source). In the case at hand, plaintiff makes broad
statements that Mr. Owens is "an indispensable witness." Other than these
general assertions, plaintiff makes no showing that such information is
otherwise unavailable. Plaintiff, therefore, *13 has not satisfactorily
demonstrated that the information sought cannot be gained through an
In light of plaintiff's failure to meet its burden of proving that Mr. Owens,
a high official in a government agency, is the sole source of the requested
information, Defendant's Motion for Protective Order and/or to Quash Deposition
Subpoena is ALLOWED. Plaintiff's request for reasonable fees and costs
pursuant to Fed.R.Civ.P. 37(a)(4) is accordingly DENIED.