Case 1:11-cv-00779-TCW Document 142 Filed 07/29/13 Page 1 of 4
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`In the United States Court of Federal Claims
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`No. 11-779C
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`(Filed: July 29, 2013)
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`STARR INTERNATIONAL COMPANY,
`INC., on its behalf and on behalf of a class of
`others similarly situated,
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` Plaintiff,
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`THE UNITED STATES,
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` Defendant.
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`David Boies, with whom were Robert J. Dwyer, Nicholas A. Gravante, Jr., Alanna C.
`Rutherford, Julia C. Hamilton, Luke Thara, Hamish P. M. Hume, and Samuel C. Kaplan,
`Boies, Schiller & Flexner LLP, Armonk, New York, and John L. Gardiner, Skadden,
`Arps, Slate, Meagher & Flom LLP, New York, New York, for Plaintiff.
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`Brian A. Mizoguchi, Assistant Director, with whom were Joyce R. Branda, Deputy
`Assistant Attorney General, Jeanne E. Davidson, Director, Scott D. Austin, Assistant
`Director, Timothy P. McIlmail, Senior Trial Counsel, Vincent D. Phillips, Amanda L.
`Tantum, and Benjamin Zeitlin, Trial Attorneys, Commercial Litigation Branch, Civil
`Division, U.S. Department of Justice, Washington, D.C., for Defendant.
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`ORDER REGARDING THE
`DEPOSITION OF BEN S. BERNANKE
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`Deposition of Witness Holding
`High-Level Government Position;
`Personal Knowledge of Relevant
`Facts; Improbability of Obtaining
`Same or Similar
`Information
`From Other Persons or Sources;
`Appropriate Judicial Oversight.
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`WHEELER, Judge.
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`On June 21, 2013, counsel for Plaintiff served a notice to take the deposition of
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`Ben S. Bernanke on Friday, August 16, 2013 at the Washington, D.C. office of Boies,
`Schiller & Flexner LLP. Mr. Bernanke is the Chairman of the Board of Governors of the
`Federal Reserve System. The deposition would relate to Mr. Bernanke’s personal
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`Case 1:11-cv-00779-TCW Document 142 Filed 07/29/13 Page 2 of 4
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`involvement in the Government’s decision to bail out American International Group, Inc.
`(“AIG”) in September 2008, and his knowledge of the specific governmental actions
`taken to implement the bailout. Mr. Bernanke repeatedly has acknowledged that he was a
`key decision-maker on behalf of the Government, and his testimony unquestionably is
`relevant to the Fifth Amendment taking and illegal exaction claims before the Court.
`Defendant opposes this deposition on the ground that Mr. Bernanke is a high-ranking
`government official whose deposition should not be taken absent a showing of
`extraordinary circumstances.
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`After “meet and confer” efforts among counsel proved unsuccessful, Defendant
`filed a motion for a protective order on July 8, 2013 asking the Court to preclude the
`deposition of Mr. Bernanke. Defendant argues that a party seeking testimony from a
`high-level government official must show that the information sought from the official is
`“essential to his case, . . . [and] not obtainable from another source.” Def’s Mot. 2 (citing
`In re United States (Holder), 197 F.3d 310, 314 (8th Cir. 1999)). Defendant states that
`“[i]f other persons can provide the information sought, discovery will not be permitted
`against [a high-ranking] official.” Id. (citing Holder, 197 F.3d at 314). Defendant
`contends that Plaintiff should be required to pursue other avenues of discovery first
`before seeking Mr. Bernanke’s testimony. In its July 23, 2013 reply, Defendant also
`asserts that a deposition would interfere with Mr. Bernanke’s important duties in
`managing the nation’s economy and fiscal policy.
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`On July 16, 2013, Plaintiff filed its opposition to the Government’s motion for a
`protective order. Plaintiff emphasizes the following reasons for taking Mr. Bernanke’s
`deposition: (1) he was the key decision-maker in the Government’s initiation of the
`bailout of AIG; (2) he has knowledge of relevant aspects of this case, including the
`Government’s decision to offer AIG a loan, whether AIG was financially solvent,
`whether bankruptcy was a viable option for AIG, whether the Government’s actions
`toward AIG were punitive, and whether the Government took control of AIG; (3) he has
`provided testimony before Congress regarding AIG at least five times; (4) he has given
`speeches at various organizations and has performed a lecture series available on the
`Federal Reserve website addressing the AIG bailout; and (5) he has written a book that in
`part discusses the AIG bailout. Pl.’s Opp. 1-2.
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`As a general rule, high-ranking government officials such as cabinet officers or
`department or agency heads cannot be forced
`to
`testify absent extraordinary
`circumstances. Simplex Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 586-87
`(D.C. Cir. 1985). However, the “[d]eposition of high ranking officials may be permitted
`where the official has first-hand knowledge related to the claim being litigated [and] only
`where it is shown that other persons cannot provide the necessary information.” Bogan v.
`City of Boston, 489 F.3d 417, 423 (1st Cir. 2007). A plaintiff requesting such a
`deposition must establish that (1) the official has personal knowledge of relevant facts
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`Case 1:11-cv-00779-TCW Document 142 Filed 07/29/13 Page 3 of 4
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`necessary to the case, and (2) the information cannot be obtained through other sources.
`Holder, 197 F.3d at 314.
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`Obtaining the testimony of high-level government officials is a relatively routine
`practice in the Court of Federal Claims when the official has personal knowledge of
`relevant information. See, e.g., Moreland Corp. v. United States, 76 Fed. Cl. 268, 270
`n.2 (2007) (noting that trial witnesses included Anthony Principi, former Secretary of
`Veterans Affairs); Energy Capital Corp. v. United States, 60 Fed. Cl. 315, 318-19 (2004)
`(ordering the deposition of former Secretary of Housing and Urban Development Andrew
`Cuomo as to his personal knowledge of relevant facts); McDonnell Douglas Corp. v.
`United States, 35 Fed. Cl. 358, 366 n.9 (Fed. Cl. 1996) rev’d in part on other grounds,
`vacated in part on other grounds, and remanded, 182 F.3d 1319 (Fed. Cir. 1999)
`(describing deposition and trial testimony of Secretary of Defense Richard B. Cheney
`regarding termination for default of the A-12 aircraft program); Langenegger v. United
`States, 5 Cl. Ct. 229, 234 (1984), aff’d in part and vacated in part, 756 F.2d 1565 (Fed.
`Cir. 1985) (permitting depositions of senior State Department officials).1 This practice
`can hardly be surprising, given the very essence of the Court’s jurisdiction, which allows
`private citizens to sue the federal government for monetary redress. As stated by
`President Abraham Lincoln and memorialized on the lobby wall of the National Courts
`Building, “[i]t is as much the duty of Government to render prompt justice against itself,
`in favor of citizens, as it is to administer the same between private individuals.” 62
`Cong. Globe, 37th Cong., 2d Sess., App. at 2 (1862). In large cases challenging actions
`at the top levels of the Government, it is unremarkable that high-level government
`officials will play a role in the litigation.
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`Here, the Court concludes that Plaintiff should be permitted to depose Mr.
`Bernanke. The Court is persuaded that Mr. Bernanke is a key witness in this case, and
`that his testimony will be highly relevant to the issues presented. Because of Mr.
`Bernanke’s personal involvement in the decision-making process to bail out AIG, it is
`improbable that Plaintiff would be able to obtain the same testimony or evidence from
`other persons or sources. Unlike the cases cited by Defendant where the high-level
`government official had little or no personal involvement, Mr. Bernanke was a central
`figure in the Government’s 2008 determination of how it should handle AIG’s fiscal
`difficulties. To rule otherwise would deprive the Court of important relevant evidence in
`its fact-finding and resolution of this case. Indeed, the Court cannot fathom having to
`decide this multi-billion dollar claim without the testimony of such a key government
`decision-maker. These facts constitute “extraordinary circumstances” for the taking of
`Mr. Bernanke’s deposition.
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`1 Anecdotally, the Court also is aware of testimony obtained from General Colin Powell, Chairman of the
`Joint Chiefs of Staff, William J. Casey, Director of the Central Intelligence Agency, Alfred C. Sikes,
`Chairman of the Federal Communications Commission, and Richard G. Austin, Administrator of the
`General Services Administration. Other examples undoubtedly exist.
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`Case 1:11-cv-00779-TCW Document 142 Filed 07/29/13 Page 4 of 4
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`In recognition of Mr. Bernanke’s high-level government position and the
`importance of his duties, the Court will extend appropriate deference and courtesies to
`him in the scheduling and conduct of this deposition.
` In order to provide appropriate
`judicial oversight for the deposition of this high-level government official, Judge Wheeler
`plans to attend Mr. Bernanke’s deposition. Judge Wheeler will be available to rule upon
`any objections that may occur, and to assure that proper and efficient use of time is
`maintained. Counsel are requested to coordinate the scheduling of this deposition with
`Mr. Bernanke and the Court. The August 16, 2013 date contained in the deposition
`notice is acceptable to the Court, but counsel may call the chambers law clerk assigned to
`this case to determine the availability of other dates.
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`Defendant’s motion for a protective order is DENIED.
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`IT IS SO ORDERED.
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`s/Thomas C. Wheeler
`THOMAS C. WHEELER
`Judge
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