The Satanic Temple of Salem, whose legal team now includes a hardball lawyer with a penchant for representing right-wing provocateurs, is demanding that Michelle Wu spend a good part of Election Day in Salem, answering questions about how the City Council chooses clergy members to lead the council in invocations at its regular Wednesday meetings.
The questions would be related to the Satanic Temple's federal suit against the council in January, alleging that the fact the council has never invited any Satanists to give an invocation is a violation of the First Amendment's Establishment clause.
City attorneys today asked US District Court Judge Angel Kelley, who is hearing the case, to block the move to force Wu to travel to Salem on Election Day, charging the group's subpoena to Wu, is harassment of a political candidate.
In a legal memorandum backing its motion to quash the subpoena, city attorneys said they had asked the Satanic Temple to pick another day or another city official with knowledge of the invocation process, since Wu is a candidate for mayor on Nov. 2, but that the group refused and instead issued a subpoena for her on that day.
City attorneys noted that the group's suit is against the entire council, that while its complaint mentions other councilors specifically, it does not name Wu specifically and that the city had provided a list of 47 people who could be questioned, or deposed.
Plaintiff does not seek the depositions of lower ranking personnel who may possess similar or the same information or knowledge with respect to the claims. Nor does Plaintiff seek to depose any of the city councilors mentioned in its Complaint. Plaintiff seeks only to depose Councilor Wu on a date that is unduly burdensome to her. Thus, considering that Defendant provided Plaintiff the information for forty-seven (47) individuals who are likely to have discoverable information regarding the subject case; that discovery in this case closes in October of 2022; and that Plaintiff has yet to receive any discovery from Defendant in this matter, Plaintiff’s insistence on deposing Councilor Wu is simply harassment.
The city acknowledges that elected officials can be deposed in lawsuits, but cites decisions in which courts have held this should be limited to cases in which the officials can provide information that nobody else can - and says the group should not be allowed to harass political candidates like this.
The Amended Complaint is devoid of any actual allegations against Councilor Wu and fails to state how she contributed to a discriminatory legislative prayer scheme nor does the Amended Complaint describe any role that Councilor Wu played in the development of the policy under which invocation speakers are chosen.
Plaintiff has not demonstrated good cause to depose Councilor Wu. Even if the City had created a discriminatory legislative prayer scheme, the Plaintiff could obtain this information through deposing lower-ranking government officials and City Council staff members regarding the policy under which speakers are chosen. As a result, it is not permitted to seek this information through Councilor Wu. ... Moreover, Councilor Wu has no first-hand knowledge about the case law, prior legal actions, or the specific instances of discrimination alleged in Plaintiff's Amended Complaint. Accordingly, Plaintiff has not demonstrated a need to depose Councilor Wu. See Church of Scientology of Boston, 138 F.R.D. at 12. As Plaintiff does not have good cause to depose Councilor Wu, it should be precluded from doing so, especially where it has not sought to depose any other lower-level City official.
In their request for Kelley to issue a formal "protective order" blocking Wu's deposition, the city continues:
Quite clearly, Plaintiff seeks to take Councilor Wu's deposition for the sole purpose of harassing and annoying her. Plaintiff has selected November 2, 2021 as the date for Councilor Wu's deposition and sent notice of such to the City on Friday, October 22 at 7 p.m. EST. Of particular importance is the fact that the Plaintiff chose to subpoena, out of all the City Councilors and staff members working for the City Council, Councilor Wu, who is a candidate in the City's general Mayoral election also taking place on November 2, 2021. In addition, Plaintiff has selected this particular Councilor on this particular date prior to receiving any discovery responses from the City and prior to seeking depositions from any other City employee or official that may have personal knowledge of the allegations in the Amended Complaint.
Subjecting Councilor Wu to this kind of questioning on the date of an election in which she is a candidate, at this early stage of discovery, where no information beyond initial disclosures has been exchanged between the parties, undoubtedly constitutes undue burden and annoyance. Perhaps more importantly, Plaintiff has not even alleged viable claims against Councilor Wu in his Amended Complaint. Plaintiff's Amended Complaint lacks reference to Councilor Wu in any of its 117 paragraphs. Subjecting Councilor Wu to deposition under these circumstances violates the federal rules of civil procedure under F.R.C.P. Rule 45(d)(1) and subjects her to undue burden and annoyance. Moreover, the harm to Councilor Wu far outweighs any need of the Plaintiff to depose her, especially at this early juncture in the litigation and especially on an election day on which she is one of two candidates for Mayor of the City. If the deposition were permitted, it would encourage future plaintiffs to file lawsuits solely for the purpose of deposing high-ranking government officials at the beginning of their actions without having to make any specific allegations related to such official.