United States District Court, S.D. New York
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), ...