US motion alleges Sidley lawyer intended to 'embarrass and harass' with deposition questions
Updated: The U.S. Justice Department is alleging that Sidley Austin lawyers questioned an FBI agent during a deposition “in a manner designed to annoy, embarrass and harass” the agent and the FBI.
The motion for a protective order claims the lawyers are abusing the discovery system in their representation of a Florida couple, Jill and Scott Kelley. The Kelleys are suing the government for allegedly leaking their personal emails in a cyberstalking investigation that led to exposure of former Gen. David Petraeus’ affair with his biographer. The National Law Journal (sub. req.) and the Drudge Report have stories on the motion (PDF).
The government contends that during the Sept. 2 deposition a Sidley lawyer “fished for facts to support an unsubstantiated theory” that FBI agents “conducted their investigation for lascivious or other improper motives.” Those questions went too far afield of the search for admissible evidence in the plaintiffs’ privacy lawsuit, the filing alleges.
The Kelleys claim the government leaked information about them after they requested a federal investigation into harassing emails from an anonymous person who, their suit alleges, turned out to be Paula Broadwell, the biographer of former Gen. David Petraeus. The suit is proceeding on just one count alleging violation of the U.S. Privacy Act, which requires federal officials to protect the identity and personal information of witnesses, the Miami Herald reports.
The government probe led to disclosure of Broadwell’s affair with Petraeus, who resigned from his position as CIA director. Jill Kelley has alleged that government leaks led to speculation about her own relationship with Petraeus, with whom she had no romantic involvement. Her acquaintance with Petraeus, she has previously maintained, stemmed from her role as a volunteer social coordinator for a military base in Tampa.
The motion seeks to bar a second deposition of the FBI agent, and to uphold a government lawyer’s instruction that the agent not answer several questions, including: “When did you first suspect that Paula Broadwell was the author of the cyberstalking emails?” and “Does the FBI investigate the sex lives of private citizens?” It also asked U.S. District Judge Amy Berman of Washington, D.C., to bar further discovery into the cyberstalking investigation by the FBI.
The government motion notes news stories about the depositions in the case, despite a judicial gag order, implying that the government itself is the victim of a leak. In one story, CNN reports on a deposition of another FBI agent who said he believed Jill Kelley’s name was leaked to discredit her amid political pressure before the 2012 election. The government motion concludes that the expansive deposition questions may be “designed to promote an ulterior purpose of advancing plaintiffs’ public relations goals.”
A Sidley lawyer who conducted the Sept. 2 deposition declined to comment when contacted by the National Law Journal.
Sidley opposed the FBI motion in a filing Thursday evening that says the plaintiffs are entitled to a broad range of inquiry to prove bad motive. “Contrary to the FBI’s assertions,” the filing says, “in discovery, there is no basis to restrict plaintiffs’ inquiries to the narrow topic of who leaked the information when the reasons why are equally important to plaintiffs’ case.”
While the deposition questions might embarrass the FBI agent, as asserted by the government, “Plaintiffs have a right to learn about the FBI’s collection, sharing and leaking of their private information in flagrant disregard of plaintiffs’ rights under the Privacy Act,” the Sidley filings says.
