United States District Court, S.D. New York
December 17, 2014
RIVKA MARTHA MORIAH, et al., Plaintiffs,
BANK OF CHINA LIMITED, Defendant. ERIC CANTOR, Movant
For Plaintiffs: Robert Joseph Tolchin, Esq., Aalok J. Karambelkar, Esq., The Berkman Law Office, LLC, Brooklyn, NY.
For Defendant: Mitchell R. Berger, Esq., Patton Boggs LLP (DC), Washington, D.C.; Lanier Saperstein, Esq., William G. Primps, Esq., Neil McDonell, Esq., Eric Epstein, Esq., Daniel Goldberger, Esq., H. Alex Iliff, Esq., Geoffrey Sant, Esq., Dorsey & Whitney LLP, New York, NY.
For Eric Cantor: Eleni Roumel, Kimberly Ann Hamm, Assistant Counsel, U.S. House of Representatives, Washington, D.C.
MEMORANDUM OPINION AND ORDER
Shira A. Scheindlin, United States District Judge.
On September 11, 2014, Plaintiffs subpoenaed Eric Cantor, former House Majority Leader of the U.S. House of Representatives, to appear for a deposition to testify about alleged conversations he had with the Prime Minister of Israel, Benjamin Netanyahu, while he was the Majority Leader. Cantor moved to quash the subpoena on two grounds: (1) federal common law bars the deposition of a former high-ranking government official absent " extraordinary circumstances" ; and (2) Cantor is immune under the Speech or Debate Clause of the U.S. Constitution. For the reasons set forth below, Cantor's motion to quash the subpoena is GRANTED.
Plaintiffs seek to depose Cantor in connection with a future application for a spoliation sanction. Plaintiffs had sought testimony from Uzi Shaya, a former Israeli national security officer. The State of Israel, after initially supporting Plaintiffs' attempts to secure Shaya' s testimony, later withdrew that support.
Plaintiffs allege that Israel withdrew its support for Shaya's testimony because of pressure exerted on Israel by the People's Republic of China, and claim that Cantor has information regarding this alleged pressure. Cantor is a family member of a plaintiff in the Wultz litigation, Sheryl Cantor Wultz, and Plaintiffs contend that Cantor or his staff took actions to encourage Israel to allow Shaya' s testimony. Specifically, Plaintiffs allege that " Cantor or his staff had repeated direct and indirect contacts with the [Prime Minister's Office] on this issue .... Cantor himself spoke behind the scenes to [Prime Minister] Netanyahu and his advisors .... "  Plaintiffs also point to an August 2013 visit Cantor, along with several other members of Congress, made to Israel. Plaintiffs allege that during that trip, Cantor " discussed Shaya's testimony with Netanyahu."  Plaintiffs base their allegations on several Israeli newspaper articles that discuss Cantor's interest in the litigation, relationship with certain Israeli officials, and attempts to persuade Israeli officials to allow Shaya's testimony.
From January 2001 to August 2014, Cantor served as the United States Representative for the 7th Congressional District of Virginia, and as the Majority Leader of the United States House of Representatives from January 2011 to July 2014. Cantor concedes that he met with Netanyahu during the August 2013 trip to Israel, but states that he has " never had any discussions about Mr. Shaya's deposition with any Israeli official."  Further, he states that from the time this litigation was filed until the date of his declaration, he took only one trip to Israel, and that this trip was made in his " official capacity as a member of a Congressional fact-finding delegation."  Further, Cantor declares that he has " never requested in any manner, directly or indirectly (i.e., through my staff, other Members of Congress, or intermediaries of any kind), that any Israeli official take any action whatsoever with respect to the Wultz or Moriah litigations, and I have never raised the Wultz or Moriah litigations with any Israeli official." 
He states that he " instructed senior members of [his] staff that [he] was not involved in the litigation and directed that they take no actions relating to the litigation."  He denies being involved in the Wultz litigation in any manner. Finally, he declares that Plaintiffs' allegation that he '" can shed light on the reasons for Israel's reneging on its promise to allow Shaya's testimony based on information conveyed to [him] by Israeli officials" ' is untrue.
III. EXCEPTIONAL CIRCUMSTANCES
" [T]o depose a high-ranking government official, a party must demonstrate exceptional circumstances justifying the deposition."  These circumstances include that " the official has unique first-hand knowledge" or " that the necessary information cannot be obtained through other, less burdensome or intrusive means."  Such protection is necessary because these officials have '" greater duties and time constraints than other witnesses." ' " If courts did not limit these depositions, such officials would spend 'an inordinate amount of time tending to pending litigation." '
This doctrine applies to both current and former high-ranking officials. Although the doctrine applies to former officials, the fact that they are not current high-ranking officials is a factor when considering whether the information can be obtained through less burdensome means and whether the deposition will interfere with the official's government duties.
Plaintiffs cannot demonstrate exceptional circumstances that would allow a deposition of Cantor because they cannot establish that Cantor " has unique first-hand knowledge" related in any manner to this litigation. Plaintiffs rely on newspaper articles that suggest Cantor has information about the reasons Israel withdrew its support for Shaya's testimony. However, Cantor's declaration squarely refutes the allegations in the newspaper articles. Cantor declares, under penalty of perjury, that he has " never had any discussions
about Mr. Shaya's deposition with any Israeli official."  Further, he states that he never directly or indirectly requested " any Israeli official to take any action whatsoever with respect to the Wultz or Moriah litigations, and [he has] never raised the Wultz or Moriah litigations with any Israeli official."  Based on these statements, Cantor has no knowledge that is at all relevant to this case, let alone " unique first-hand knowledge" that would establish exceptional circumstances to allow the deposition of a high-ranking government official.
Plaintiffs claim that Cantor's declaration does not establish that he has no knowledge regarding why Israel has not allowed Shaya to testify. Plaintiffs contend that the declaration is " a craftily-phrased lawyer's exercise in razor-thin denials prevaricating right up to the edge of wiggle room."  I disagree. Cantor has addressed all of Plaintiffs' allegations regarding his supposed knowledge, and declared under oath that they are untrue. It is difficult to imagine how Cantor could have been any clearer. He stated plainly that he is not involved in the litigation in any manner, and that he has no knowledge related to Shaya's deposition. Plaintiffs claim that the wording of Cantor's declaration leaves open the possibility that members of his staff " engaged in obtaining information" or that Israeli officials " discussed the issue of Uzi Shaya's testimony with him or one of his aides, colleagues or intermediaries ...."  However, this Court invited Plaintiffs to direct interrogatories to Cantor in order to better define the scope of the inquiry. Plaintiffs did not do so, and therefore they cannot now claim that his declaration does not address any specific facts that Plaintiffs had hoped to learn.
In short, Cantor's declaration establishes that he has no relevant information. In light of this, Plaintiffs cannot demonstrate exceptional circumstances that would permit the deposition of a former high-ranking government official.
For the foregoing reasons, Cantor's motion is GRANTED and the subpoena is quashed. The Clerk of the Court is directed to close this motion (Docket No. 102).