Zeleny v. Brown

Background

Michael Zeleny wants to carry unloaded firearms during public protests. California generally prohibits openly carrying firearms, but the statute contains an exception for an “authorized participant” in a motion picture, television or video production, or entertainment event. The opinion states that the statute does not define “authorized participant” or identify who provides the authorization. The City of Menlo Park took the position that an authorized participant must have a City film or event permit, while Zeleny disagreed.

Zeleny sought discovery from the California Attorney General about the meaning of the “authorized participant” exception and other open-carry provisions. His interrogatories did not receive clear answers on whether authorization had to come from a government body or whether someone with an entertainment firearms permit qualified as an authorized participant. He then served a deposition notice under Federal Rule of Civil Procedure 30(b)(6), which allows an organization to designate a witness to testify about matters described in the notice. The notice listed 20 topics concerning California’s open- and concealed-carry laws and their exceptions.

The Attorney General designated Blake Graham as the witness. When Zeleny’s counsel asked about the meaning of the “authorized participant” exception, the Attorney General objected that Graham was not authorized to interpret a statute, and Graham did not provide a substantive answer. Zeleny moved to compel another Rule 30(b)(6) witness or, alternatively, to depose Attorney General Xavier Becerra.

Court’s analysis

The court construed the motion as principally challenging topic 13, concerning interpretation of the open-carry statutes, along with related interpretive tools such as legislative history, post-enactment enforcement, and constitutional avoidance. The court identified three problems with the requested Rule 30(b)(6) deposition.

First, topic 13 was too broad. Rule 30(b)(6) requires a deposition notice to describe the matters for examination with reasonable particularity. The court concluded that a request concerning “the interpretation of the open carry statutes” potentially covered the statute’s many subparts and 33 exceptions, and therefore did not satisfy that requirement.

Second, most of the requested topics were irrelevant to this case. The opinion noted that Zeleny had not alleged that he wanted to carry an unloaded handgun in settings such as a target range, official parade, pawn shop, or dog-training activity. The court also stated that the deposition notice did not focus on whether Zeleny was an authorized participant or what authorization he needed. Even a narrowed topic concerning the authorized-participant exception would not solve the third problem.

Third, the court held that a Rule 30(b)(6) deposition was not an appropriate way to obtain a party’s legal contentions. The court explained that depositions are useful for obtaining factual information known by an organization, but that questions requiring a witness to give immediate answers about legal positions are improper. The court pointed to interrogatories and requests for admission as discovery tools that expressly allow questions about opinions, contentions, facts, and the application of law to facts.

The court separately considered Zeleny’s request to depose Becerra. It explained that heads of government agencies are not normally subject to deposition and that courts consider whether the proposed deponent has unique, firsthand, non-repetitive knowledge of facts at issue and whether less intrusive discovery methods have been exhausted. The court stated that Becerra would know about the facts of the case only if an aide briefed him, and that he was named as a defendant because of the procedure for challenging the constitutionality of a state law enforced by the Attorney General. The court further stated that any relevant factual discovery would come from the City of Menlo Park.

Ruling

Judge Ke S. Hixson denied Zeleny’s motion to compel the Attorney General to produce a Rule 30(b)(6) deponent on the interpretation of the open-carry laws. The court also denied Zeleny’s alternative request to depose Becerra. The opinion does not state that either denial was with or without prejudice.