DeSantis’ team plans to resist hauling governor in for depositions in Andrew Warren suspension case

By: - September 28, 2022 1:04 pm

The U.S. District Court for the Northern District of Florida courthouse in Tallahassee.

Gov. Ron DeSantis will resist testifying in Andrew Warren’s legal challenge to the governor’s order suspending him as the elected state attorney for Hillsborough County, according to a pretrial report issued in the case.

U.S. District Judge Robert Hinkle released the report, a summary of where the case stands, on Tuesday. It sets deadlines for filing motions and completing depositions in the lawsuit but Hinkle hasn’t yet set a trial date.

Warren wants trial to begin on Oct. 24; lawyers in Attorney General Ashley Moody’s office, representing DeSantis, want a Dec. 5 trial date.

“Plaintiff expects to depose defendant,” Hinkle wrote, referring to the governor.

However, the governor’s team plans to resist hauling DeSantis in for any depositions, the judge noted, invoking executive privilege and the “apex doctrine.”

That allows courts to block deposition of corporate executives or government officials to shield them from harassment intended to force a settlement, according to an American Bar Association analysis.

The doctrine is available if the party opposing a deposition can show that “the witness lacks unique, first-hand knowledge of the facts at issue” and “less intrusive means of discovery have not been exhausted.”

“As a consequence, most courts require the deposition of lower-ranking employees before permitting the deposition of an executive-level employee to proceed,” the analysis says.

Political differences

Warren challenged his suspension in U.S. District Court for the Northern District of Florida, claiming it amounted to a purge over political differences in violation of the First Amendment and Florida Constitution. Hinkle rejected his request for reinstatement but also the state’s request to dismiss the case.

DeSantis claimed Warren was neglecting his duty to enforce the law, based largely on being a signatory to letters by progressive prosecutors nationally opposing bringing cases for violation of bans on abortion or transgender care.

Discovery is a legal process by which litigants share evidence to which the opposing party is entitled. In this case, Warren’s lawyers want to include public statements DeSantis made about Warren’s suspension, including during an Aug. 4 news conference in which the governor was backed by a phalanx of uniformed sheriffs from the Tampa Bay area.

DeSantis’ legal team want to delve more deeply into how Warren developed those policy positions.

Regarding the trial date, “Defendant’s position is that a significant amount of discovery must be conducted in a short time frame, even under pared-down discovery procedures,” Hinkle noted.

“Additionally, the state is under a state of emergency, with Hurricane Ian forecast to make landfall in Florida … This impacts the availability of defendant and defendant’s staff and counsel in the near term and after the storm has passed and complicates their ability to respond to anticipated discovery requests and to prepare for trial on expedited timelines. Given these issues, a December trial date is still ambitious but would permit the parties to prepare the matter for trial in a more orderly fashion.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.