9th Circuit Precedent Bars TikTok From Deposing Mont. AG, Says AG's Response

Montana Attorney General Austin Knudsen (R) is resisting calls by five individual TikTok users and TikTok itself to personally depose him during the discovery phase of the two consolidated cases that challenge the constitutionality of the state's TikTok ban, said Knudsen’s response Thursday (docket 9:23-cv-00061) in U.S. District Court for Montana in Missoula.

U.S. District Judge Donald Molloy ordered the parties to submit detailed accountings by Feb. 15 of the individuals or entities from which they will seek to obtain discovery (see 2402060044), and the plaintiffs answered with their proposal to depose Kundsen himself. But the 9th Circuit’s “apex” doctrine would bar any attempt to depose the AG, said Knudsen’s response.

The 9th Circuit’s February 2022 decision in In re United States Department of Education held that a party seeking to depose a high-ranking political official bears the “heavy burden” of showing that the agency acted in bad faith, that the information sought is essential to the case and that the information can’t be obtained in any other way, said Knudsen’s response. The 9th Circuit explained that while district courts have occasionally ordered such depositions, circuit courts have issued writs of mandamus to stop them, generally finding that the circumstances before them weren’t extraordinary, it said.

To the extent that the plaintiffs seek to depose the AG himself, they can’t satisfy any of the 9th Circuit’s “factors,” said Knudsen’s response. The plaintiffs never claimed that the AG or the Montana DOJ acted in bad faith, it said. The plaintiffs rather rely on public statements the AG made about the justification for the statewide ban when they claim that the law (SB-419) is unjustified and unconstitutional, and that the state’s interests are unsubstantiated, it said. But they never claimed that Knudsen’s office has been dishonest or otherwise acted in bad faith, it said.

The information the plaintiffs purportedly seek from the AG also isn’t essential to the case, said Knudsen’s response. The plaintiffs have repeatedly stated their primary position that further discovery isn’t necessary, it said. The discovery that they identify is “merely responsive” to the state’s discovery, it said. They seek information about the facts on which the state may rely in this action, plus information responsive to the consumer-protection interest the state asserts, it said. Regardless of how relevant the plaintiffs believe this information is, the plaintiffs have made clear that it isn’t absolutely needed for the case, it said.

The information about the state’s consumer-protection interests can be obtained in other ways, subject to other objections the state may raise in the course of litigation, said Knudsen’s response. That includes the information considered by the state, and the consumer complaints relating to TikTok, it said.

The information the plaintiffs seek by deposing Knudsen himself can be obtained from other individuals in the Montana DOJ or other state governmental entities, including through Rule 30(b)(6) depositions, said Knudsen’s response. The court need not take the state’s word for it, it said. The plaintiffs “identify several sources for the same information they purportedly seek” from the AG, it said.

Because the plaintiffs challenge SB-419 as “a legislative enactment,” discovery “into pretext and improper motive is unwarranted,” said Knudsen’s response. As the 9th Circuit clearly stated in its 1984 decision in Las Vegas v. Foley, allowing discovery of legislative motives would create a major departure from the precedent rejecting the use of legislative motives, it said. It’s also inconsistent with basic analysis under the First Amendment, which hasn’t turned on the motives of the legislators, but on the effect of the regulation, it said.

The AG, moreover, isn’t a member of the Montana legislature, didn’t vote on SB-419 and didn’t sign SB-419 into law, said Knudsen’s response. The state reserves “general and specific objections” consistent with the Federal Rules of Civil Procedure and the court’s local rules in response to the plaintiffs’ specific discovery requests, it said.