J. Doe 4 et al v. Musk et al

OCR transcription for search; preserved printed pages are authoritative

Case 8:25-cv-00462-TDC Document 200 Filed 02/04/26 Page 1of8

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

J. DOES 4, 7, 22, 27, 28, and 29, on behalf of
themselves and all others similarly situated,

Plaintiffs,
v.

ELON MUSK, in his official capacity,
UNITED STATES DOGE SERVICE,
THE DEPARTMENT OF
GOVERNMENT EFFICIENCY,
UNITED STATES

DEPARTMENT OF STATE,

UNITED STATES AGENCY FOR
INTERNATIONAL DEVELOPMENT,
MARCO RUBIO, in his official capacity,
PETER MAROCCO, in his official capacity,
JEREMY LEWIN, in his official capacity,
KENNETH JACKSON, in his official
capacity, and

AMY GLEASON, in her official capacity,

Civil Action No. 25-0462-TDC

Defendants.

MEMORANDUM ORDER
In this civil action, Plaintiffs have asserted violations of the Appointments Clause of the
United States Constitution, U.S. Const. art. II, § 2, cl. 2, and the constitutional principle of the
Separation of Powers arising from decisions and actions taken by Defendant Elon Musk and others
to shut down and dismantle the United States Agency for International Development (“USAID”)
from January 2025 forward. After the Court ruled on a Motion for a Preliminary Injunction and a
Motion to Dismiss, the parties commenced discovery. Defendants have now filed a Motion for a

Protective Order to preclude the depositions of Musk, who at the time of the relevant events had

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO.

Case 8:25-cv-00462-TDC Document 200 Filed 02/04/26 Page 2 of8

been identified by the President of the United States as the head of the United States Department
of Government Efficiency (“DOGE”); Peter Marocco, the former official performing the duties
and functions of the Acting USAID Deputy Administrator; and Jeremy Lewin, a former DOGE
team lead who reported to Musk and who was later designated to serve as the USAID Deputy
Administrator for Policy and Programming and the USAID Chief Operating Officer. Having
reviewed the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local
R. 105.6. For the reasons set forth below, the Motion for a Protective Order will be DENIED.
DISCUSSION

The relevant factual background and procedural history is set forth in the Court’s opinions
in which it ruled on the Motion for a Preliminary Injunction and the Motion to Dismiss, which are
incorporated by reference in their entirety. Does 1-26 v. Musk (“Does I’), 771 F. Supp. 3d 637
(D. Md. 2025), preliminary injunction stayed by, No. 25-1273, 2025 WL 1020995, at *7 (4th Cir.
Mar. 28, 2025); Does 4, 7, 22, 27, 28, & 29 v. Musk (“Does IP’), No. 25-0462-TDC, 2025 WL
2346258 (D. Md. Aug. 13, 2025).

In the Motion, Defendants seek a protective order precluding depositions of Musk,
Marocco, and Lewin pursuant to Federal Rule of Civil Procedure 26(c)(1), which provides in
relevant part that:

The court may, for good cause, issue an order to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense, including .. .

forbidding the disclosure or discovery . . . [and] forbidding inquiry into certain

matters, or limiting the scope of disclosure or discovery to certain matters.
Fed. R. Civ. P. 26(c)(1). Defendants primarily rely on case law which they characterize as

establishing an “apex doctrine” that precludes depositions of high-ranking government officials

absent exceptional circumstances. Mot. at 2-3 & n.2, ECF No. 189-1.

Case 8:25-cv-00462-TDC Document 200 Filed 02/04/26 Page 3of8

Lk Legal Standards

The United States Court of Appeals for the Fourth Circuit has not formally adopted an
“apex doctrine” but has recognized that “high-ranking government officials may not be deposed
or called to testify about their reasons for taking official actions absent ‘extraordinary
circumstances.’” In re McCarthy, 636 F. App’x 142, 143 (4th Cir. 2015) (quoting Franklin Sav.
Ass'n v. Ryan, 922 F.2d 209, 210 (4th Cir. 1991)). In Jn re McCarthy, the court held that the
Administrator of the United States Environmental Protection Agency could not be deposed in part
because the court was “unpersuaded that there is no alternative to deposing [the Administrator],”
and because “Plaintiffs have not demonstrated a need for [the Administrator’s] testimony beyond
what is already in the public record.” Jd. at 144. In Franklin Savings Association v. Ryan, 922
F.2d 209 (4th Cir. 1991), the Fourth Circuit held that the Director of the Office of Thrift Savings
should not have been required to answer questions about his mental processes in reaching a
decision. /d. at 211. In so ruling, the court stated that the principle that “absent ‘extraordinary
circumstances,’ a government decision-maker will not be compelled to testify about his mental
processes in reaching a decision” derives from United States v. Morgan, 313 U.S. 409 (1941). Id.
In Morgan, the United States Supreme Court held that the Secretary of Agriculture should not have
been required to testify at a deposition or trial about the process by which he reached certain
conclusions about a rate schedule or his consultation with others about the issue because “it was
not the function of the court to probe the mental processes of the Secretary,” in part because of the
need to ensure equal respect for “the integrity of the administrative process” and “the appropriate
independence” of the executive and judicial branches. Jd. at 422.

Thus, under Fourth Circuit precedent, a protective order to preclude a deposition may be

warranted if (1) the deponent is a “high-ranking government official[]”; (2) the deposition seeks

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testimony about mental processes or the “reasons for taking official actions”; and (3) there are no
“extraordinary circumstances.” Jn re McCarthy, 636 F. App’x at 143; see Franklin Say. Ass'n,
922 F.2d at 211. Although the Fourth Circuit has not explicitly defined “extraordinary
circumstances,” in Jn re McCarthy, the court found a lack of such circumstances where the
plaintiffs had failed to show that there was “no alternative” to deposing the high-ranking
government official and had failed to “demonstrate[] a need” for the testimony “beyond what is
already in the public record.” Jd. at 144.

Other United States Courts of Appeals have adopted broader, more specific rules that high-
ranking executive officials should not be deposed “concerning issues relating to their official
duties” absent extraordinary circumstances, without a requirement that the testimony relate to
mental processes. See, e.g., Inre Off. of the Utah Att'y Gen., 56 F.4th 1254, 1259 (10th Cir. 2022)
(citing Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007)). Such a rule “is based on the
notion that high ranking government officials have greater duties and time constraints than other
witnesses and that, without appropriate limitations, such officials will spend an inordinate amount
of time tending to pending litigation.” Jd. at 1259-60. “The circuits vary on what constitutes
extraordinary circumstances, but nearly all of them agree that a party must show at a minimum
that the information sought is not obtainable from another source,” and some require that “the
information sought must be essential to the plaintiffs case.” /d. at 1260. Thus, Defendants assert
that Plaintiffs must demonstrate extraordinary circumstances by showing that the information
sought is (1) “essential” to their case; and (2) “not obtainable from another source.” Mot. at 2
(quoting Jn re United States (Reno), 197 F.3d 310, 313-14 (8th Cir. 1999)).

Here, under Fourth Circuit precedent, the Motion for a Protective Order fails in part

because Plaintiffs do not seek deposition testimony on the mental processes used in, and the

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reasons for, agency decisions. See Franklin Sav. Ass'n, 922 F.2d at 210; In re McCarthy, 636 F.
App’x at 143. At a case management conference on November 19, 2025 and in their brief on the
Motion, Plaintiffs specifically disavowed questioning these witnesses in depositions about their
mental processes in reaching decisions or about the reasons that decisions were made. Case Mgmt.
Conf. Tr. at 5-6, ECF No. 190-1; Opp’n at 3, ECF No. 190.

Even assuming, consistent with the approach taken by certain other circuits, that
depositions of high-ranking government officials should be restricted absent extraordinary
circumstances regardless of whether they seek testimony on mental processes, the Court still finds
that the protective order is not warranted. At the outset, it is at best unclear whether Musk,
Marocco, and Lewin are properly deemed to be high-ranking government officials for purposes of
this doctrine. Notably, in cases in which courts have barred depositions of cabinet secretaries,
depositions of senior, Senate-confirmed subcabinet officials have been permitted to proceed. See
Inre U.S. Dep't of Educ., 25 F.4th 692, 696, 704-05 (9th Cir. 2022) (barring the deposition of the
Secretary of Education in a case in which depositions of two Under Secretaries of Education had
proceeded; see id. at 702 (noting that in Jn re Department of Commerce, 586 U.S. 956, 956 (2018),
the Supreme Court stayed the deposition of the Secretary of Commerce while permitting
depositions of other “high-ranking officials, including an Assistant Attorney General”). Here,
USAID was not a cabinet-level agency, none of the designated officials were the head of that
agency, and several were operating in an informal or acting role at the time of the relevant events.

Moreover, one of the primary purposes for imposing restrictions on depositions of high-
ranking government officials is that they “have greater duties and time constraints than other
witnesses.” Jn re Off. of the Utah Att’y Gen., 56 F.4th at 1259. Here, Defendants acknowledge

that Musk has left government service and Marocco and Lewin no longer serve in their former

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roles as Deputy Administrators of USAID or the equivalent, and they make no argument about the
duties and time constraints relating to any current government positions held by any of these
witnesses. Although Defendants assert that Musk’s role as a Senior Advisor to the President
qualifies as a high-ranking government official, that assertion is not dispositive here because
Plaintiffs seek Musk’s testimony in relation to his separate role as the head of DOGE or an
unofficial role at USAID, and any concerns about intrusion on the President’s constitutional role
can be addressed through limitations on the subject matter of the deposition rather than outright
preclusion.

Even assuming that the proposed witnesses qualify as high-ranking government officials,
the Court finds that extraordinary circumstances justify the depositions. First, as reflected in the
Court’s prior rulings, where Plaintiffs’ Appointment Clause claim is based on the allegation that
Musk made certain decisions relating to the shutdown and dismantling of USAID at times when
he lacked the authority to do so and when there was no duly authorized official who approved or
ratified the decisions, there is a specific need for testimony on Musk’s role in relation to DOGE
and USAID, the timing of his placement in certain roles, and the timing of the placement of USAID
officials such as Marocco and Lewin in certain positions. See Does I, 771 F. Supp. 3d at 662-64,
667-68; Does IT, 2025 WL 2346258, at *19. There is also a specific need for evidence on the
identity of the decisionmakers and the timing of certain key decisions relating to the shutdown and
dismantling of USAID, such as the specific decisions to shut down USAID Headquarters and the
USAID website. See Does I, 771 F. Supp. at 662-64, 667-68; Does IT, 2025 WL 2346258, at *19
(finding that “additional factual development through discovery is necessary to assess the scope
and breadth of the alleged Appointments Clause violation, including by determining the identity

of the actual decisionmakers for any exercises of significant authority”). Where Plaintiffs allege

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that Musk personally made many of these decisions, his own statements on social media during
the relevant time period provide evidentiary support for that conclusion, and Marocco and Lewin
have been identified as having been personally involved with the shutdown activities in the same
timeframe, Plaintiffs have shown that the identified witnesses likely have personal, first-hand
knowledge of facts relevant and essential to the resolution of this case. See Does J, 771 F. Supp.
3d, at 659, 663-64. Plaintiffs have thus “demonstrated a need for [the witnesses’] testimony
beyond what is already in the public record” that is “essential” to their case. In re McCarthy, 636
F. App’x at 144; In re Off. of the Utah Att'y Gen., 56 F 4th at 1260; see Bogan v. City of Boston,
489 F.3d 417, 423 (1st Cir. 2007) (“Depositions of high ranking officials may be permitted where
the official has first-hand knowledge related to the claim being litigated.”). In this way, the
proposed depositions differ from those sought in cases such as Alexander v. Federal Bureau of
Investigation, 186 F.R.D. 1 (D.D.C. 1998), cited by Defendants, in which depositions of high-
ranking government officials were barred based in part on the finding that the officials did not
“possess information relevant to the underlying claims in [the] litigation.” /d. at 4.

Second, Plaintiffs have fairly demonstrated that there is “no alternative’ means to secure
the information sought, such that it is “not obtainable from another source.” Jn re McCarthy, 636
F, App’x at 144; see In re United States, 197 F.3d 310, 314 (8th Cir. 1999) (finding that a high-
ranking government official may still be deposed when the official possesses information “not
obtainable from another source”); Bogan, 489 F.3d at 423 (stating that depositions of high-ranking
government officials may be permitted when “other persons cannot provide the necessary
information”). As to this issue, Defendants assert that, instead of the proposed depositions,
Plaintiffs should be required to first seek stipulations, additional interrogatories, and depositions

of lower-ranking officials. Plaintiffs, however, have submitted requests for stipulations and

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interrogatories to which Defendants have not responded adequately or at all. Significantly, in
relation to the Motion for a Preliminary Injunction, the Court directed Defendants to submit
documentary evidence of certain specific actions relating to the shutdown of USAID, which
presumably would have identified the date of the action and the authorizing official, but
Defendants failed to provide evidence addressing these issues in relation to certain key decisions,
including the decision to shut down USAID headquarters and to shut down the USAID website.
Does I, 771 F. Supp.3d at 663-64.

Assuming that Defendants complied with the Court’s Order in good faith, they have
effectively acknowledged that these orders were given orally, with no documentary record, such
that the only evidence on these questions would be the oral testimony of the officials present when
the decisions were made. Defendants notably have never, in relation to that Order or otherwise,
identified any lower-ranking officials who were present when such decisions were made.
Accordingly, the Court finds that there is no alternative to the proposed depositions of Musk,
Marocco, and Lewin.

CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendants’ Motion for a Protective

Order, ECF No. 189, is DENIED.

Date: February 4, 2026 ne en

THEODORE D. CHUANG
United States District J Gee)