In Re: Bryant, No. 18-60703 (5th Cir. 2018)Annotate this Case
The Jackson Municipal Airport Authority (JMAA) currently manages the Jackson-Medgar Wiley Evers International Airport, but control would transfer to a new board under Senate Bill 2162, which was recently passed by the Mississippi Legislature. The new board would be structured differently with nine commissioners, rather than the current five. Although Governor Bryant signed the Bill into law in 2016, it has only nominally taken effect. The FAA does not consider disputed airport transfers if there is pending litigation. JMAA and others sued, challenging S.B. 2162 under the Equal Protection and Due Process Clauses, alleging discriminatory purposes. In discovery, Governor Bryant identified Chief of Staff Songy as a person having discoverable knowledge that would tend to support or refute any claim, defense, or element of damages in the case. JMAA moved to compel Songy’s deposition. Governor Bryant sought a protective order, claiming official privilege, which limits depositions. The Fifth Circuit declined to issue a writ of mandamus requested by the Governor. Involuntary depositions of highly-ranked government officials are only allowed in “exceptional circumstances.” A court must consider the status of the deponents, the potential burden on them, and the substantive reasons for taking the depositions; it rare that exceptional circumstances can be shown where the testimony is available from an alternate witness. The court nonetheless noted important aspects of this analysis that the lower court failed to fully consider, including parallel litigation regarding the deposition of legislators.
The court issued a subsequent related opinion or order on November 30, 2018.