Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 1 of 18 U ITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Division ERIC W. PAY E, PLAI V. TIFF ) ) ) ) ) ) CASE O. 1:10-CV00679-RWR DISTRICT OF COLUMBIA, ET AL. DEFE DA TS. PLAI TIFF'S CO SOLIDATED OPPOSITIO TO THE DISTRICT OF COLUMBIA'S A D/OR MAYOR VI CE T GRAY, A D COU CILMEMBERS JACK EVA S A D JIM GRAHAM'S OBJECTIO S TO MAGISTRATE JUDGE'S MEMORA DUM OPI IO A D ORDER OF OCTOBER 31, 2011 DE YI G THE DISTRICT'S MOTIO FOR A PROTECTIVE ORDER COMES OW Plaintiff, Eric W. Payne ("Payne" or "Plaintiff"), by and through undersigned counsel, and respectfully Opposes the District of Columbia ("D.C.") and Councilmembers Jack Evans and Jim Grahams' respective Objections to Judge Robinson's Memorandum Opinion and Order [Doc. 39] denying their respective motions for protective orders. At issue in these motions is a whistle blower retaliation and wrongful termination case in a controversial procurement scenario involving the District of Columbia lottery contract. Plaintiff further relies on the record below. I. STA DARD OF REVIEW Federal Rule of Civil Procedure 72(a) and Local Civil Rule 72.2(c) allow a party to file objections to a Magistrate Judges Order. "Upon consideration of objections filed..., a district judge may modify or set aside any portion of a magistrate judge's order under this Rule found to be clearly erroneous or contrary to law." Local Civil Rule 72.2(c). Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 2 of 18 II. I TRODUCTIO Payne's anticipated inquiry of the subpoenaed elected officials ("Objectors") is driven by several considerations, including that said officials know about or have information about one or more of the following: 1) his wrongful termination as a result of refusing to commit an illegal act or to violate public procurement policy, to wit, modify, alter or cancel an awarded contract for political reasons; 2) that he was retaliated against as a result of his complaints to investigative authorities in the OCFO and elsewhere; 3) their own direct communication with the CFO and Payne regarding changing the contract award and other communications related thereto; 4) Jim Graham's instigation of an OCFO Office of Integrity and Oversight ("OIO") complaint and inquiry against Payne, (corroborated communications with the CFO regarding Payne by Angell Jacobs July 7, 2008 statement regarding Graham and Gray) and communications related thereto; and 5) Gray's resistance to the awarded contract, meeting with the OCFO staff regarding the contract, his subsequent private conversation with Gandhi, his mental state when he stated to Payne "you are not going to bring that shit back here, are you?" and communications with the CFO and others about Payne and 6) sent or received emails through Gandhi or Angel Jacobs heretofore unproduced emails. During four (4) month period between March and July, 2008, Payne filed complaints about contract improprieties with the CFO's OIO and Office of Inspector General ("OIG"). Those complaints, according to Payne's Affidavit, were disclosed to Mr. Gandhi or his Chief of Staff. See Payne Affidavit at ?? 6 and 11. During May through June, 2008, Payne became the target of concerted internal and external scrutiny. As carefully outlined in his Affidavit, each of the subpoenaed witnesses directly communicated with the CFO regarding Payne and modification or cancellation of the subject lottery contract. Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 3 of 18 The District and the City Council Members go to great lengths to argue that this court should overturn Judge Robinson's decision. In so doing, they conveniently distort Plaintiff's claims and the basis for the requested depositions. They also conveniently understate the circumstances surrounding Plaintiff's subpoenas. Most telling, they trivialize the well developed record here and the absence of either of them making any attempt to refute Payne's affirmed assertions. Rather, the District seeks in the eleventh hour to present an ex post facto Declaration from former Chairman Gray. Hence, the court must now reconcile this Declaration with its Counsel's concession of the factual assertions in Plaintiff's affidavit during arguments before Judge Robinson. The Objectors all suggest that their communications with Gandhi related to their interest in the then pending legislative review process governing the lottery contract award, and therefore that each of them could discuss, as alleged here, the modification or cancellation of an already awarded lottery contract. Plaintiff, being cognizant of the law, respectfully disagrees. Legislative immunity was not designed to give cover to such objectives. Plaintiff relies upon its Affidavit to show that the Objectors' activities and known communications transcended a pure, exclusive interest in the exercise of the City Council contract review functions. On that point, neither Evans nor Graham has refuted any of the factual allegations in Payne's Affidavit. Reason being, you can't refute the truth. Gray's attempt to do so has weakened rather than strengthened his argument for reasons discussed below. Since Judge Robinson's Order, this court should note several discovery developments. Most significant among them is Plaintiff's First Motion to Compel, which led to the court's November 16, 2011 Order compelling production of documents, a privilege log and the timely scheduling of Defendants' continually postponed depositions of CFO Gandhi and his Chief of Staff, Angell Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 4 of 18 Jacobs. In that and subsequent motions Plaintiff complained about what is an apparent "rolling discovery scheme." This scheme, meant to burden Plaintiff, has previously been frowned upon by other courts in which the District has been a party litigant. To date, Defendants have not complied with Judge Robinson's November 16, 2011 Order. Its non-compliance is significant. At Jacobs and the CFO's depositions on November 29th and 30th, Plaintiff uncovered new evidence which includes a stream of undisclosed electronic communication between the CFO, his Chief of Staff and the subject elected officials via personal email not government emails.1 This stream of previously undisclosed communication has been ongoing for several years. More importantly, this correspondence should have been produced in response to Plaintiff's Document Production Request. Notably, neither Jacobs nor Gandhi were requested by counsel to either search for or produce such emails. Based upon this development, Plaintiff has filed a Third and Emergency Motion to Compel, and an urgent request that the court order Defendant D.C., Defendant Gandhi and his executive staff to preserve all private and government electronic communications, subject to this court's further instruction. Former Chairman Vincent Gray At issue, relative to Mayor Gray, are several meetings and communications which occurred on or around May 5, 2008. On that date, Gray, Gandhi, Payne and others met in then Chairman Gray's office. Prior to that meeting, Plaintiff reported certain contract improprieties to both the Office of Integrity and Oversight and the Office of Inspector General. Payne Affidavit ?? 3-5. Payne also refused to engage in any discussions in which the subject of contract rebid or contract modification was raised. Plaintiff affirmed that Gray asked no questions about any aspect of W2I's technical or price proposals and raised no substantive concerns about the 1 / An attempt to make them "non-FOIA-able" according to Ms. Jacobs. Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 5 of 18 contract. Payne further affirmed that immediately after the meeting, Gray asked Gandhi to remain behind and that they met privately. Payne and other staff waited in Gandhi's office.2 Immediately following the Gandhi-Gray private meeting, according to Payne, Defendant Gandhi summoned him into a meeting with Jacobs and other staff and repeatedly cajoled and exhorted him to cancel the proposed lottery contract and reopen the process. Plaintiff resisted and advised the CFO that there was no legal basis upon which to do so and that the contract's cancellation was legally impermissible. Payne also believed that the CFO was being pressured to end the contract award and to demote and/or terminate him in order to nullify his insistence upon objective, impartial and legally sound contract procurement procedures. Plaintiff further affirmed at paragraph 10, that Gandhi stated: that "to continue with the proposed award would only antagonize the Chairman." These events must be read in the context of Payne Affirmation in paragraph 12, in which Gandhi's Chief of Staff, Angell Jacobs, suggests that the decision to demote him was attributed to both Gray and Graham. In July, 2008 Payne was stripped of his title and duties. He contends that Gray, Graham, and Evans among others, discussed with Gandhi the pending lottery contract and Payne's continued involvement well beyond whether the D.C. City Council should affirm the contract award during his review period. On November 14, 2014 Defendant District on behalf of former Chairman Gray filed a ten (10) paragraph Declaration. Exhibit A to Defendant's Objection. Said Declaration was not introduced during Judge Robinson's consideration of the case, however, Defendant attempts to make it part of the record here. In Said Declaration, Gray claims no recollection of the affirmed / The Mayor's Declaration, attached to the District's Objection, affirms that he has no recollection of a private meeting with Gandhi. Gandhi, on the contrary, testified under oath that said private meeting did in fact occur between him and Gray following the group meeting just as Payne affirmed. See attached excerpt from Gandhi's deposition. Exhibit 1. 2 Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 6 of 18 "private meeting" with Gandhi on the lottery contract and that any meeting with Gandhi was to determine how he would vote on the lottery contract. By that time, however, it was well known that Gray opposed the contract and did not intend to vote for it. See Payne's Affidavit at paragraph 8, in which Payne affirms that Gray expressed his strenuous opposition to the contract. On Wednesday, November 30, 2011, Defendant Gandhi was deposed. In his deposition, Gandhi, like Payne, refuted Gray's Declaration and admitted to having the asserted private meeting with Gray following a meeting with Gray and Gandhi's staff. (Exhibit: Excerpt from Gandhi's deposition testimony, November 30, 2011). There is more. On Tuesday, November 29, 2011 Angell Jacobs, Gandhi's Chief of Staff testified that she and Gandhi exchange emails on their private emails to avoid FOIA notwithstanding that these emails discussed government business. Her testimony is worth note: Q. If you were to look back over the last few years, would you say that you have received hundreds of e-mails from Dr. Gandhi on his private emails A. Yes. See Deposition of Angell Jacobs. Page 8 Lines 19-21 and Page 9 Lines 1-2 Dr. Gandhi in his deposition confirmed that he communicated by private emails with elected officials, other executive staff members, and persons with interests in said Lottery Contract, including Lorraine Greene. See Attachment A - Media Attachment - 9:12:28-9:13:03 & 9:13:25-9:13:43. The electronic correspondence sent via his personal email covered a litany of issues including, but not limited to, the subject lottery contract, and likely Plaintiff's performance, demotion and termination. "See Attachment A - Media Attachment - Gandhi Deposition - 9:18:13 - 9:18:30" Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 7 of 18 To date, despite repeated requests for pertinent Email correspondence and despite this court's order, none of these emails have been produced. Most disturbing, Defendant Gandhi's stream of electronic correspondence includes emails between him and the Objectors. Gray's Declaration is thus a thinly iced rebuttal to an increasingly suspect discovery record that also impugns his credibility. Councilmembers Evans and Grahams Councilmembers Jim Graham and Jack Evans engaged in direct communications with the CFO Gandhi regarding the Lottery Contract award during a period of time when there was great pressure being exerted upon Payne to cancel or modify the award absent any legal foundation to do so. Payne Affidavit ? 2. Their communications, Payne asserts constituted inappropriate attempts to influence or change the lottery contract outcome, however, Payne resisted such attempts. Id. In April 2008, Payne affirms that he was compelled to attend and participate in several highly unusual meeting in which the CFO, certain city council members, and his supervisors met to specifically discuss the proposed lottery contract and Warren Williams' involvement. The first such meeting occurred on April 8, 2008 with Councilmember Evans, Chairman of the Finance and Revenue Committee and Natwar Gandhi, Jay Young, Jeff Coudriet, and David Tseng. Id. at ? 7. Payne at the meeting was repeatedly urged to re-bid the contract. He irrefutably affirms that Evans stated: "Everyone loves Intralot, their technology and their price. It's Warren Williams that people have a problem with." Id. Maintaining the pressure on Payne, "Evans went on to expressly ask: "[c]an't we just get rid of Williams, who apparently is a slumlord and everyone has a problem with, and replace him with Manning?" Id. To which Payne responded "it was legally impermissible." Id. Evans then angrily retorted, "why not?" with Gandhi also questioning "yeah, why not?" Realizing that Payne will not break the law and Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 8 of 18 modify an already awarded contract, Evans said "W2I will have to carry their own water on this contract." Evans deposition, presuming there is an absence of pertinent email correspondence between him and Ghandi, will give him an opportunity to clarify the credibility of these statements. Councilmember Graham was known to oppose the lottery contract. In fact, during an April 9, 2008 Council of the Whole Budget Hearing, Councilmember Graham urged the CFO to withdraw the contract. Councilmember Evans also said he encouraged Mayor Adrian Fenty to withdraw the contract and that he had agreed. On the same day, Payne approached Graham in order to determine specific substantive concerns, Graham had no concerns. Rather, Payne affirms, Graham insisted that Payne call Dottie Love Wade and off the top of his head, gave Payne her number. Payne Affidavit ? 10. Subsequent to this meeting with Graham, Payne was informed by W2I that Ms. Wade had offered Councilmember Graham's support if she received a "stay at home" job, a car and other perks, which W2I reported declining. Id. Payne subsequently met with Graham, his then aide, Ted Loza, along with Cynthia Gross, in his office. In that meeting, Graham said that "he had a bone to pick with [Payne]." Graham further stated "I've discussed it with Gandhi and he'll discuss it with you. Just know that I'm not happy." Id. Indeed, there is a corroborative email from Gandhi to his staff wherein Gandhi indicates that he wished to discuss Graham's lottery concern with them. Finally, Payne affirmed that, according to Angell Jacobs: "Jim Graham is on a personal vendetta here and, you know, he thinks the way to get what he wants is to find a way to discredit the people that were involved in the process. And he doesn't care who that involves .... because for Gray and Graham, this is personal. Id. at ?12. [Emphasis added]. III. ARGUME T Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 9 of 18 a. Communications that are political and that seek to alter a contract award are outside of the legislative sphere. Legislative Immunity is neither an absolute bar nor a basis for absolute privilege as urged by the Objectors. Contrary to their assertions, the "broad" reading given to the Speech or Debate Clause, however, is not boundless. Further, they misread Jewish War Veterans of the United States of America v. Gates, 506 F.Supp.2d 30, 53 (2007) and contort its reasoning to protect communications, as here, which directly sought to modify or cancel an existing contract award. The law says otherwise. Rather, as argued before Judge Robinson, this privilege confers on members of the legislature immunity for only those "actions within the legislative sphere." Brown & Robinson Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 415 (D.C.Cir.1995). Accordingly, "in determining whether legislative immunity applies, the critical question is whether the action at issue was undertaken within the 'legislative sphere.'" Alliance for Global Justice v. District of Columbia, 437 F.Supp.2d 32, 36 (2006). The Clause "obviously covers core legislative acts--`how [a Member] spoke, how he debated, how he voted, or anything he did in the chamber or in committee.'" Fields v. Off. of Eddie Bernice Johnson, 459 F.3d 1, 9 (D.C.Cir.2006) (quoting United States v. Brewster, 408 U.S. 501, 515, 92 S. Ct. 2531, 33 L.Ed.2d 507 (1972)). In addition, the Supreme Court has held that the Clause protects "legislative acts" that are "an integral part of the deliberative and communicative processes by which Members participate in committee and [legislative] proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters" within their jurisdiction. To that end, the D.C. Circuit has provided a non-exhaustive list of legislative acts protected by the Speech or Debate Clause, including at the least: "delivering an opinion, uttering a speech, or haranguing in debate; proposing legislation; voting on legislation; Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 10 of 18 making, publishing, presenting, and using legislative reports; authorizing investigations and issuing subpoenas; holding hearings; and introducing material at Committee hearings." Fields, supra. at 10-11 (internal citations, quotation marks, and footnotes omitted). As is specifically relevant here, legislative investigations--both formal and informal--have been held to be protected by the Speech or Debate Clause. As to formal legislative investigations, the Supreme Court has explicitly recognized that "[t]he power to investigate ... plainly falls within" the legislative sphere. Eastland v. Servicemen's Fund, 421 U.S. 491, 504, 95 S. Ct. 1813 (1975) ("This Court has often noted that the power to investigate is inherent in the power to make laws because `[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.'") (quoting Migraine v. Daugherty, 273 U.S. 135, 175, 47 S. Ct. 319, 71 L. Ed. 580 (1927)); see also D.C. Code ? 1-301.41 (defining "legislative duties" to include, inter alia, "[e]verything said, written or done during ... meetings, or investigations of the Council or any committee of the Council"). A legislature's efforts to acquire information during formal committee investigations or through the issuance of subpoenas thus clearly constitute "legislative acts" covered by the Speech or Debate Clause. 421 U.S. at 504, 95 S. Ct. 1813; see also Jewish War Veterans, supra. at 54. This court in Jewish War Veterans noted that the question whether informal investigations and information-gathering is equally covered by the Speech and Debate Clause is less clear. Id. In a well-reasoned decision, the court in Jewish War Veterans concluded that investigation and information gathering by a legislator, whether formally or informally conducted, is protected by the Speech or Debate Clause "so long as the information is acquired in connection with or in aid of an activity that qualified as `legislative' in nature." States of America, Supra. at 57. That is, the Court was persuaded that, regardless of whether conducted Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 11 of 18 formally or informally, "the acquiring of information [is] an activity that is a `necessary concomitant of legislative conduct and thus should be within the ambit of the privilege so that [legislators] are able to discharge their duties properly.'" Dominion Cogen, D.C. Inc., v. District of Columbia, 878 F.Supp.258, 263 (D.D.C. 1995); see also Alliance for Global Justice, 437 F.Supp.2d at 36. That is where the court drew the line, noting that not all conduct relating to the legislative process was protected under by the Speech or Debate Clause. Jewish War Veterans, supra. at 53 (citing Brewster, 408 U.S. at 515). For example, the Supreme Court recognized that certain activities that are "political in nature rather than legislative" are therefore not covered by the Speech or Debate Clause, such as: "legitimate `errands' performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called `news letters' to constituents, news releases, and speeches delivered outside the Congress." Brewster, 408 U.S. at 512, 92 S. Ct. 2531. "Although these activities are important and might even `be integral to a Member's legislative goals,' they are nonetheless considered `political' and thus beyond the coverage of the Speech or Debate Clause." Jewish War Veterans, supra. at 53-54 (quoting Fields, 459 F.3d at 12). In addition, as argued by Plaintiff to this court, efforts to "cajole" or "influence" the executive branch are not protected activity. Gravel, 408 U.S. at 625, 92 S. Ct. 2614; see also Jewish War Veterans, supra. at 54 ("contacting an executive agency in order to influence its conduct is not" protected activity). At issue in this case is the extent to which the Objectors, Gray, Graham, and Evans, contacted an Executive Agency in order to influence the outcome of an already awarded lottery contract. These communications, be they oral or electronic, which discuss modification of the lottery contract, is not subject to legislative immunity and is therefore not protected. Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 12 of 18 b. Each Objector sought to influence the Executive Branch's modification or cancellation of the lottery contract. The Objectors here were "free to 'cajole[] and exhort' the executive branch of the District government however, 'such conduct, though generally done, is not protected legislative activity." Gravel v. United States, 408 U.S. 606, 625 (1972). The District's Speech or Debate Clause only provides immunity for "actions within the legislative sphere." Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 418 (D.C. Cir. 1995). Plaintiff's Affidavit showed that each Objector, Gray, Graham, and Evans communicated with members of the Executive Branch about the lottery contract and/or Eric Payne and sought irrefutably, to alter the contract award to the subcontractor. Indeed, the limited evidence accessible and adduced to date bolsters Plaintiff's argument and raises significant questions about the Objectors' behavior and interaction with Gandhi. Unlike each supporting authority cited by the Objectors, including Williams v. Johnson, 597 F. Supp. 2d. 107, 112 (D.D.C. 2009), the protected legislative conduct here does not include: (a) conducting a hearing; (b) questioning witnesses and making statements at the hearing; (c) meeting with Plaintiff to discuss a matter that was raised at a hearing and to receive information concerning alleged wrongdoing at an agency that is under the Councilmember's oversight responsibility; or (d) launching an investigation as a result of the information received. The movants cannot find a case factually on point in which legislators attempt to cancel or modify an existing contract and adversely affect an employee's employment, and are thereafter barred from giving testimony on the basis of legislative immunity. In sum, the critical questions before the court are simple: Whether the action at issue was undertaken within the legislative sphere? For reasons stated, the Court should answer no. To the Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 13 of 18 extent that the answer is no, the question is the extent to which the mayor and two city council members orally or in writing communicated with the CFO and any OCFO staff regarding the cancellation and modification of the awarded lottery contract and discussed Eric Payne and his professional status. The Court should permit the depositions so that these questions can be answered appropriately. The proverbial evidentiary straw that should break the camel's back is Gandhi's yet to be produced stream of private emails to elected officials, including the Objectors; this evidence could be quite illuminating. The court should closely scrutinize Paragraph 12 in Payne's Jacobs Affidavit, regarding the July 7, 2008 meeting between Payne, Jacobs and Lundquist. specifically mentioned Gray and Graham's names in the context of effectuating Payne's demotion, to wit, that for Gray and Graham the matter was "personal." Upon information and belief, these individuals influenced Payne's personnel status, including his demotion and termination. They cannot now turn to claim to have been involved in legislative duties. D.C. Official Code defines "Legislative duties" as follows: "The responsibilities of each member of the Council in the exercise of such member's functions as a legislative representative, including but not limited to: Everything said, written or done during legislative sessions, meetings, or investigations of the Council or any committee of the Council, and everything said, written, or done in the process of drafting and publishing legislation and legislative reports." D.C. Official Code ? 1-301.41(b). For the reasons clearly enunciated above, the actions of Gray, Graham, and Evans do not fall within the D.C. Official Code's definition of legislative duties and thus do not merit the protection of legislative immunity. Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 14 of 18 Further, City of Boise, a Ninth Circuit Court of Appeal case held that "monitoring or administrating a municipal contract is generally an executive function." Cmty. House, Inc. v. City of Boise, 623 F.3d 945, 960 (9th Cir. Idaho 2010). [W]hether an act is legislative depends[...] on "the character and effect" of the particular act at issue. Generally "four factors [are considered] in determining whether an act is legislative in its character and effect: "(1) whether the act involves ad hoc decision making, or the formulation of policy; (2) whether the act applies to a few individuals, or to the public at large; (3) whether the act is formally legislative in character; And (4) whether it bears all the hallmarks of traditional legislation." Kaahumanu, 315 F.3d at 1220 (citation and internal quotation marks omitted). The first two factors are largely related, as are the last two factors, and they are not mutually exclusive. The Objectors fail to satisfy the factors set above because one, there was no policy being formulated by the council members rather there was an attempt to modify or cancel an already awarded contract. Two, the Objectors targeted only Plaintiff in their acts which comprised of illegally trying to influence an already awarded contract. Three, the meetings between the Objectors and the executive branch was in private and not in a formal public hearing or legislative chamber and finally, the Objectors' acts lacked the hallmarks of traditional legislation, rather it was a naked attempt at modifying or cancelling an already awarded contract. Objectors argue that The Home Rule Act gives them an affirmative duty to review multiyear contracts. However, The Home Rule Act only calls for the Mayor to submit a multiyear contract to the council for its approval or disapproval. D.C. Official Code ? 1204.51(c)(3). Such approval does not include modifying or cancelling the contract but a straight up or down vote for the contract. Thus for Objectors to cajole, exhort or exert influence in order to modify or cancel an already awarded contract is inconsistent with the intent and purpose of the Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 15 of 18 Home Rule Act. Objectors including Evans and Graham were on a personal vendetta against Plaintiff and not seeking information that would support or oppose the passage of the Lottery Contract. Graham's comment that he has "a bone to pick with Payne" does not in any way constitute information gathering for the passage of the Lottery Contract. Rather, such comment was meant to put Plaintiff on notice that his job was at risk and further, to intimidate Plaintiff into modifying, cancelling or re-bidding the contract. Plaintiff however maintained that it was inappropriate to change a subcontractor on an already awarded contract. D. Only Gray can testify about his substantive communications and state of mind. Only Gray can testify about his own state of mind during the subject period, March 2008 through July 2008 and his views toward the lottery contract and Mr. Payne. His Declaration now opens the door as per whether he had actually decided his view as of May 5, 2011, and whether the meetings held on that date were as he claimed to ascertain more about the contract in order to determine his vote on the issue. Indeed, such testimony cannot be obtained from any other witness, particularly when credibility is at issue. For example, Gandhi only claims to have no recollection about the conversations during the private meeting, while Gray has no recollection of the meeting taking place. Further discovery may lead to additional documentation that may assist Plaintiff in this regard. As well, Gray can explain what he meant by his alleged comments to Payne following an April 9, 2008 Council Hearing; Payne affirms that Gray expressed profane disdain for the contract and his need to consider it in the Council. In this connection, a high ranking official can be deposed where such an official has "personal knowledge" about a matter and "the information cannot be obtained elsewhere." Alexander v. FBI, 186 F.R.D. 1, 4 (D.D.C. 1998). "]E]ven a sitting United States President may be compelled to comply with a subpoena." Jones v. Hirschfeld, 219 F.R.D. 71, 74 (S.D.N.Y. 2003) see, e.g., Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 16 of 18 United States v. ixon, 418 U.S. 683, 707, 713, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). Former Chairman Gray, based upon Gandhi's deposition testimony met with him twice on May 5, 2008. Hence, he should have personal knowledge about the discussion and the extent to which it involved or affected Eric Payne. Further, Jacobs implicates former Chairman Gray as having a personal problem with Payne, which led to his demotion. Notably, at the September 23, 2011 Hearing before Judge Robinson, counsel for Defendant District of Columbia "concede[d] that there were conversations [between then-Chair Gray and Defendant Gandhi] about the lottery contract." See 09/23/2011 Minute Entry. Defendant's Counsel also "concede[d] that non-party Objectors and Defendant Gandhi had conversations regarding the D.C. Lottery of the type described by Plaintiff in his affidavit." Id. Defendant's Counsel failed miserably to even attempt to refute Payne's Affidavit. Counsel now seeks to reverse the record and undo these concessions per its submission of an ex post facto Gray Declaration. This attempt at a recreation of the record, however, does not help its case. Based upon Gandhi's deposition testimony, Gray and Gandhi did in fact engage in private conversations about the lottery and may have exchanged emails on Gandhi's private Email address regarding the lottery. See Attachment A at 9:13:45 - 9:13:51; 9:14:08 - 9:14:31; 9:17:21 c. Extraordinary circumstances obviate any burden on Mayor Gray. Defendant asserts that former Chairman Gray, absent extraordinary circumstances, should not be ordered to be deposed. Notably, Mr. Gray is not being deposed in his capacity as Mayor, but as former Chairman of the City Council, similar to council members Graham and Evans, on an issue of major public importance to this community. Indeed, the circumstances here are extraordinary. Woven beneath the spider web of political animosity between the City Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 17 of 18 Council and former Mayor Fenty was an interplay between then city council members and the CFO related to an awarded lottery contract. The only barrier to the political versus legal selection of the lottery contract award was Eric Payne and his insistence that the decision be consistent with the letter of the law. The primary communications at issue involve communications between the Mayor in his capacity as former Council Chairman and the CFO and other council members, in particular Messrs. Evans and Graham. Only these individuals can testify as to what was stated between them relative to Payne. Further, the issue at hand is fundamental to government ethics and procurement integrity. Indeed, the argument against deposition, as presented by the Objectors is weak and unsupported by legal authority. If what Plaintiff asserts is untrue, there is no better place for the Objectors to be than in a deposition spending time advancing the city's interest in assuring that they did not play a role in Plaintiff's professional demise. IV. CO CLUSIO Based upon the record adduced from filings and the Hearings on the matter, no clear error can be gleaned from Magistrate Judge Robinson's well reasoned ruling. Moreover, Defendant Gandhi's and Jacobs' depositions have opened an evidentiary Pandora's Box for Defendants and Objectors. This court is simultaneously considering Defendant's violation of an existing discovery order, and two outstanding motions to compel and for sanctions for failure to produce ordered documents. These ongoing discovery developments are exacerbated by Plaintiff's discovery of the Gandhi stream of personal emails to and from elected officials. To the extent that the court rules on the adduced record, it should affirm Judge Robinson's Order denying the Objectors' Motions to quash. To the extent that the court rules on newly adduced evidence it Case 1:10-cv-00679-RWR-DAR Document 58 Filed 12/05/11 Page 18 of 18 should also rule in Plaintiff's favor, because such evidence is equally compelling and troubling as far as the Objector's communications with the Executive Branch. Respectfully submitted, _________/S/___________________ Donald M. Temple, Esq. (#408749) 1229 15th Street, N.W. Washington, D.C. 20005 Tel. 202-628-1101 Fax. 202-628-1149 dtemplelaw@gmail.com Attorney for Plaintiff _____________/S/________________ A. Mendie Archibong, Esq. (#18135) Archibong Law Firm, L.L.C. 914 Silver Spring Ave. Ste. 116 Silver Spring, MD. 20910 240-472-8959 Phone mendie@archibonglaw.com Attorney for Plaintiff