Case Number: PC-2020-08357

Filed in Providence/Bristol County Superior Court

Submitted: 12/10/2020 3:10 PM
Envelope: 28721 61
Reviewer: Victoria H

HEARING DATE: December 11, 2020 @ 2:00pm

STATE OF RHODE ISLAND SUPERIOR COURT
PROVIDENCE, SC.

STATE OF RHODE ISLAND

By and Through,
ITS RHODE ISLAND DEPARTMENT OF HEALTH
V.
C.A. PC-2020-08357

FOURTH MAXX LINCOLN LLC

Dba

MAXX FITNESS CLUBZZ

MEMORANDUM OF LAW IN SUPPORT OF THE RHODE ISLAND
DEPARTMENT OF HEALTH’S MOTION TO QUASH SUBPOENAS
On December 4, 2020, this Court granted the Rhode Island Department of Health’s

(“RIDOH”) request for a Temporary Restraining Order. The Order required that Fourth MaXX

Lincoln LLC, doing business as MaXX Fitness Clubzz (“MaXX Fitness”), adhere t0 the executive

order issued by Governor Gina Raimondo in the midst of the current COVID—19 pandemic and

suspend all indoor operations and indoor and outdoor group classes during the State’s two-week

“pause,” aimed at curtailing the deadly spread 0f the disease. E Executive Order 20-100,

attached hereto as Exhibit A. On December 8, 2020, MaXX Fitness served subpoenas 0n

(1) Governor Raimondo and (2) Dr. Nicole Alexander-Scott, RIDOH’S Director, seeking their

appearance and testimony in Court this coming Monday, December 14, 2020, at a scheduled

hearing in this matter. E Raimondo Subpoena, attached hereto as Exhibit B; and Alexander-

Scott Subpoena, attached hereto as Exhibit C. RIDOH now respectfully asks this Court t0 quash

both of these subpoenas in full, as no reason exists t0 require in-court appearance of two high-
Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/10/2020 3:10 PM
Envelope: 28721 61
Reviewer: Victoria H

ranking officials 0f this State—both 0f whom are fully immersed in dealing with the COVID—19

pandemic—to testify in a matter Where the essential facts are not in dispute and where the

ultimate outcome Will turn on a question of law.

I. FACTS AND PROCEDURAL BACKGROUND

The pertinent facts 0f this matter are more fully set forth in RIDOH’S Verified

Complaint, Memorandum in Support 0f its Motion for a Temporary Restraining Order,

Preliminary Injunction, and Mandatory Permanent Injunction, and associated Exhibits, all of

Which are incorporated by reference herein. However, as it relates to the instant Motion, the

following is highlighted: RIDOH filed this action 0n December 3, 2020, in the midst 0f the

COVID—19 pandemic, which is currently hitting the State of Rhode Island particularly hard.

Rhode Island continues to be in a declared State of Emergency, hospitals are at capacity, 1,484

Rhode Islanders have died from complications of COVID-19 as of today, 461 are currently in the

hospital fighting the Virus, and the most recent COVID-19 positivity rate is 7.6%. In fact, Rhode

Island currently has the highest daily average of COVID-19 cases per capita in the United States.

m Centers for Disease Control and Prevention, U.S. COVID-19 Cases and Deaths by State,

located at https://c0Vid.cdc.gov/covid-data-tracker/#cases_casesper 100klast7days (last Visited

Dec. 9, 2020).

Governor Raimondo, the State’s chief executive, and Director Alexander-Scott, RIDOH’s

Director, have predominantly focused over the last eight months on addressing this

unprecedented crisis in an effort t0 minimize its very real and deadly consequences t0 the

citizens of this State. It is in this context that the Governor issued, among other orders,

Executive Order 20-100, which requires certain businesses and/or activities, including gyms, to
Case Number: PC-2 020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/10/2020 3:10 PM
Envelope: 2872161
Reviewer: Victoria H

engage in a temporary “pause?” Maxx Fitness refused to cease operations prohibited during this

“pause,” and RIDOH issued a Compliance Order to the gym, and thereafter sought and obtained

a Temporary Restraining Order from this Court, Which

signed and entered on December

Q.
8, 2020. E
was granted 0n December

Order Granting TRO, attached hereto as

4,

m
2020, and

This Court’s Order (1) restrained, enjoined, and ordered Maxx Fitness to immediately

cease and desist from engaging in any action that purports to continue t0 operate and/or engage

in business as an indoor gym and/or fitness center and/or indoor and/or outdoor group activities;

(2) required MaXX Fitness to close all indoor operations and all indoor and outdoor group fitness

classes, such closure to be effected no later than the close of business on Friday, December 4,

2020; (3) temporarily restrained and enjoined MaXX Fitness from the above-described operations

pending further order of the Honorable Court; and (4) assigned this matter to December 14,

2020, at 2:00 PM, for further hearing 0n the merits and/or for consideration of further injunctive

relief. fl Exhibit D.

On December 8, 2020, MaXX Fitness served two subpoenas—one 0n Governor Raimondo

and one on Director Alexander-Scott—requiring their appearance before this Court at the hearing

scheduled for December 14, 2020. It is these subpoenas that are the subject of the instant Motion

t0 Quash.

II. STANDARD OF REVIEW

Rule 45(0) of the Superior Court Rules of Civil Procedure requires a “party or an attorney

responsible for the issuance and service 0f a subpoena” t0 “take reasonable steps to avoid

1
Executive Order 20-100 requires the closure of certain businesses and/or activities, including
indoor operations and indoor and outdoor group classes in gyms, from November 30, 2020,
through December 13, 2020, unless same is extended by further order 0f the Governor. As 0f the
time of this filing, this “pause” has not been extended and is set to expire 0n December 13, 2020.
Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/10/2020 3:10 PM
Envelope: 2872161
Reviewer: Victoria H

imposing undue burden 0r expense on a person subject to that subpoena.” Furthermore, Rule

45(c)(3)(A) requires this Court to “quash or modify” a subpoena if it “(i) [flails t0 allow

reasonable time for compliance; (ii) [r]equires disclosure 0f privileged 0r other protected matter

and no exception 0r waiver applies; 0r (iii) [s]ubjects a person t0 undue burden.” Finally, in

instances where a subpoena “requires disclosure of an unretained expert’s opinion or information

not describing specific events 0r occurrences in dispute and resulting from the expert’s study

made not at the request of any party,” Rule 45(c)(3)(B)(ii) allows this Court “to protect a person

subj ect t0 0r affected by the subpoena” by “quash[ing] 0r m0dify[ing] the subpoena.”

III. NO REASON EXISTS

FOR THE TESTIMONY SOUGHT BY THE SUBPOENAS
No reason exists for either Governor Raimondo or Director Alexander-Scott to testify in

this matter. The Governor and the Director are high-ranking officials who have been charged, by

Virtue 0f their posts, t0 address the COVID-19 pandemic and all 0f its repercussions. Taking

them away from their critical jobs, especially at this crucial time When the wave of infections in

Rhode Island is among the highest in the country, is the epitome 0f undue burden. The Governor

and the Director should be able to direct their attention to controlling the spread of COVID—19 t0

limit the number 0f people infected and the number of people requiring hospitalization.

“The need for limited access t0 high government officials through the discovery process

is well-established,” and “the practice of calling high ranking government officials should be

discouraged.” Bogan V. CitV 0f Boston, 489 F.3d 417, 423 (1“ Cir. 2007) (relying on United

States V. Morgan, 313 U.S. 409, 422 (1941)). In Bogan, the court affirmed a protective order

against the deposition of the Mayor 0f Boston, against claims that the Mayor directly ordered an

inspection of the plaintiff‘s property. E also Sweeney V. Bond, 669 F.2d 542, 546 (8th Cir.

1982) (upholding protection of state governor from deposition regarding dismissal of plaintiffs
Case Number: PC-2 020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/10/2020 3:10 PM
Envelope: 2872161
Reviewer: Victoria H

from their employment); Simplex Time Recorder C0. V. Secretary of Labor, 766 F.2d 575 (D.C.

Cir. 1985) (“Top executive department officials should not, absent extraordinary circumstances,

be called t0 testify regarding their reasons for official actions”); Peoples V. Department of

Agriculture, 427 F.2d 561 (D.C. Cir. 1970) (subjecting cabinet official to oral deposition is not

normally countenanced); Kyle Engineering C0. V. Kleppe, 600 F.2d 226 (9th Cir. 1979) (“Heads

of government agencies are not normally subject to deposition”); Monti V. State, 151 Vt. 609,

563 A.2d 629 (1989) (reversing trial court’s denial 0f Governor’s motion for a protective order

preventing Governor’s deposition and remanding for detailed findings 0n relevancy, necessity

and alternative means of discovery). The rationale underlying this policy is that highly placed

government officials, even in non-emergency times, must be free t0 conduct public business

Without constant interference from the discovery process. United States V. Miracle Recreation

Equipment C0., 118 F.R.D. 100, 108 (S.D. Iowa 1987). This principle is even more applicable

during a declared state and national emergency.

A litigant Wishing to overcome this sound public policy must make two showings: First,

the litigant must demonstrate that the official has direct personal information pertaining t0

material issues in the action. American Broadcasting Companies, Inc. V. United States

Information Agency, 599 F. Supp. 765 (D.D.C. 1984). Second, the litigant must demonstrate

that the information sought is not available through any other source. Church 0f Scientology V.

Internal Revenue Service, 138 F.R.D. 9, 12 (D. Mass. 1990).

Here, the need for the testimony 0f Governor Raimondo and Director Alexander-Scott is

far from clear, nor has Plaintiff demonstrated that any information sought from them is not

available from another source. Moreover, in its Objection t0 RIDOH’S Motion for a Temporary

Restraining Order, Preliminary Injunction, and Mandatory Permanent Injunction, MaXX Fitness
Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/10/2020 3:10 PM
Envelope: 2872161
Reviewer: Victoria H

raises a purely legal argument—namely, the delegation 0f emergency power t0 the Governor.

In light of the pure legal question being presented, it is difficult t0 ascertain the purpose of and

the need for the testimony 0f the Governor or the Director. At the very least, the Plaintiff’s

focus 0n the delegation issue demonstrates that subpoenaing the Governor and the Director

under these circumstances represents an undue burden. And to the extent that certain factual

issues may exist, MaXX Fitness can certainly seek relevant information through a number of less

burdensome sources. It is only if “the party in whose behalf the subpoena is issued shows a

substantial need for the testimony . . . that cannot be otherwise met Without undue hardship,”

that this Court “may order appearance 0r production only upon specified conditions.” Rule

45(c)(3)(B)(ii). This substantial need has not been shown.

T0 allow MaXX Fitness t0 require the appearance and testimony of the Governor and the

Director in court, in a matter focused on legal arguments, would open the door for any plaintiff

t0 question such high-ranking officials regarding any and all actions that might involve their

respective offices. Indeed, individuals 0r entities opposing COVID-19 Executive Orders could

simply file a stream 0f lawsuits and motions for preliminary injunction t0 tie up the Governor

and the Director from their official duties. This would effectively remove the Governor and the

Director from their duties and responsibilities they have been tasked with—running the State of

Rhode Island and RIDOH (respectively) While, simultaneously dealing With the unprecedented

COVID-19 pandemic. Clearly, any tangential information that either official may have about

this case is available through less onerous means than by subj ecting them to in-court testimony.

In California State Board 0f Pharmacy V. Superior Court, 78 Cal.App.3d 641, 144

Ca1.Rptr. 320 (1978), the court noted “If the head 0f a government agency were subject to

having his deposition taken concerning any litigation affecting his agency or any litigation
Case Number: PC-2 020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/10/2020 3:10 PM
Envelope: 2872161
Reviewer: Victoria H

between private parties Which may indirectly involve some activity 0f the agency, we would

find that the heads 0f government departments...w0uld be spending their time giving

depositions and would have n0 opportunity to perform their fimctions. ...It would be

oppressive and vexatious to require (the head of a government agency) t0 submit t0 an

interrogation that might last for several hours and that would, 0f course, disturb government

business.” I_d. (citing Capitol Vending C0. V. Baker, 36 F.R.D. 45, 46 (D.D.C. 1964)).

In serving subpoenas upon Governor Raimondo and Director Alexander-Scott, MaXX

Fitness failed to “take reasonable steps to avoid imposing undue burden 0r expense 0n” them, as

is required by Rule 45(c). These subpoenas are devoid of any indication as to why the presence

0f these two high-level officials is required in this Court, especially in light of the legal nature 0f

the dispute.

IV. CONCLUSION

For all of the foregoing reasons, RIDOH respectfully requests that this Court grant its

Motion t0 Quash in full the subpoenas served 0n Governor Raimondo and Director Alexander-

Scott.
Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/10/2020 3:10 PM
Envelope: 2872161
Reviewer: Victoria H

Respectfully submitted,

Plaintiff,
STATE OF RHODE ISLAND, by and
throughits DEPARTMENT OF HEALTH,

By:
PETER F. NERONHA
ATTORNEY GENERAL

/s/ Natalya A. Buckler

Chrisanne Wyrzykowski, Esq. (#7565)
Assistant Attorney General
Natalya A. Buckler, Esq. (#8415)
Special Assistant Attorney General
150 South Main Street
Providence, RI 02903
(401) 274-4400 ext. 2235 / 2022
Fax (401) 222-2995
cwyrzykowski@riag.ri.gov / nbuckler@riag.ri.gov

CERTIFICATE OF SERVICE

I, 0n this 10th day 0f December, 2020, I

the undersigned, do hereby certify that
electronically filedand served the within Memorandum in Support ofMotion t0 Quash through
the electronic filing system. The document electronically filed and served is available for
Viewing and/or downloading from the Rhode Island Judiciary’s Electronic Filing System.

Charles Calenda, Esq.

Inman & Tourgee
1500 Nooseneck Road
Coventry, RI 028 1 6
ccalenda@itw1aw.com
/s/ Karen M Ragosta