Extraordinary Circumstances Required to Depose High-Level Executive Officials—And Plaintiffs Must Exhaust “Ordinary” Discovery First

1. Introduction

This Fourth Circuit mandamus decision arises from a high-profile separation-of-powers and Appointments Clause challenge brought by former USAID employees and contractors against multiple federal actors, including Elon Musk (in an official capacity), the United States DOGE Service, the Department of Government Efficiency, the Department of State, USAID, and several named officials (Rubio, Marocco, Lewin, Jackson, and Gleason).

The plaintiffs seek declaratory and injunctive relief, alleging that actions “pertaining to USAID” violated the Constitution’s Appointments Clause and separation of powers principles. During discovery, plaintiffs noticed depositions of Musk, Peter Marocco, and Jeremy Lewin. Petitioners moved for a protective order, invoking the “longstanding limitations on deposing high-level Executive Branch personnel” absent “exceptional circumstances.”

The district court denied the protective order, assuming (without deciding) that Musk, Marocco, and Lewin were “high-ranking” officials and concluding either (i) the requested testimony did not concern protected “mental processes,” or (ii) extraordinary circumstances justified the depositions because plaintiffs needed testimony about decisionmaker identity and timing and could not obtain it elsewhere—particularly given allegedly inadequate written discovery responses.

The Fourth Circuit explicitly declined to address whether Amy Gleason could be deposed because there was no protective-order ruling as to her at the time of the petition.

2. Summary of the Opinion

The court granted mandamus and directed the district court to enter a protective order precluding depositions of Musk, Marocco, and Lewin “at this time.”

The Fourth Circuit held that, even when deposition topics do not probe “mental processes,” a party seeking to depose high-ranking government officials must show extraordinary circumstances. It further defined that showing to require proof that the official has firsthand information that is relevant and material and that cannot be reasonably obtained from other sources or modes of discovery.

Critically, the court concluded the district court’s “no alternative” finding lacked record support because plaintiffs had not pursued “ordinary” discovery tools—such as depositions of lower-ranking officials, Rule 30(b)(6) depositions, and Rule 37 motions to compel/sanctions—before seeking apex depositions. The court framed the error succinctly: plaintiffs had not shown the extraordinary where they had not pursued the ordinary.

The court emphasized its ruling was not a permanent bar: the depositions could be revisited if later circumstances satisfy the extraordinary-circumstances standard.

3. Analysis

3.1. Precedents Cited

A. Mandamus standards (why the court could intervene at all)

• Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367 (2004): The majority invoked Cheney for the core mandamus framework: mandamus is “drastic and extraordinary,” the petitioner must show a “clear and indisputable” right and lack of other adequate means, and issuance is discretionary (“appropriate under the circumstances”). This decision supplies the doctrinal gateway for appellate intervention in discovery disputes, which are ordinarily managed by the district court.

B. The Fourth Circuit’s “high-ranking official” deposition doctrine

• Franklin Sav. Ass'n v. Ryan, 922 F.2d 209 (4th Cir. 1991): The court treated Franklin as foundational Fourth Circuit authority restricting depositions of government decisionmakers absent extraordinary circumstances, especially where inquiry targets decisionmaking rationale.
• In re McCarthy, 636 F. App'x 142 (4th Cir. 2015): The majority relied on McCarthy for the “extraordinary circumstances” requirement and for the formulation that, when a plaintiff cannot obtain the information elsewhere, there may be “no alternative.” Importantly, the majority distinguished the district court’s reliance on “no alternative” as unsupported on this record because plaintiffs had not exhausted other discovery tools.

C. Extending the doctrine beyond “mental processes” and aligning with other circuits

The opinion acknowledged that Franklin and McCarthy addressed depositions regarding a decisionmaker’s “mental processes,” but did not squarely resolve whether extraordinary circumstances are required when the deposition targets non-deliberative facts (e.g., “identity of decisionmakers and the timing of decisions”). The Fourth Circuit answered that open question: extraordinary circumstances must still be shown.

• In re U.S., 985 F.2d at 513 (as cited by the court): The majority used this authority to highlight separation-of-powers harms when courts compel high-level decisionmaker testimony, warning of “serious repercussions for the relationship between two coequal branches of government.”
• In re Cheney, 544 F.3d 311 (D.C. Cir. 2008): Cited for the proposition that even where an official has first-hand knowledge, discovery is permissible “only where it is shown that other persons cannot provide the necessary information.”
• In re U.S. Dep't of Educ., 25 F.4th 692 (9th Cir. 2022): Cited to reinforce that “cabinet secretaries” may be deposed only under extraordinary circumstances and to support the broader “apex” logic that courts should seek information from lower levels first.
• In re Off. of the Utah Att'y Gen., 56 F.4th 1254 (10th Cir. 2022): Cited for the cross-circuit consensus: “Nearly every circuit” applies some form of extraordinary-circumstances test for high-ranking officials.
• In re U.S., 624 F.3d 1368 (11th Cir. 2010) and In re U.S., 985 F.2d 510 (11th Cir. 1993): Used to emphasize a record-based review for “extraordinary circumstances” or “special need” before compelling appearance of a high-ranking officer.
• In re U.S., 542 F. App'x 944 (Fed. Cir. 2013): Cited as an example where mandamus issued to prevent deposition of a highly ranked official (Chairman Bernanke) absent extraordinary circumstances.
• Bogan v. City of Boston, 489 F.3d 417 (1st. Cir. 2007): Quoted for the principle that depositions of high executive officers should not interrupt duties where information can be obtained elsewhere.
• Fern Kletter, Deposition of High-Ranking Government Officials, 15 A.L.R. Fed. 3d Art. 5 (2016): Not binding authority, but used to summarize the prevailing doctrine: exceptional circumstances generally require firsthand, relevant information unavailable through other sources or discovery modes.
• Does 1-26 v. Musk, No. 25-1273, 2025 WL 1020995 (4th Cir. Mar. 28, 2025): Referenced for factual background described in an earlier Fourth Circuit stay order.

D. The dissent’s supporting authorities (limits on mandamus; deference in discovery)

• In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018): The dissent cited it for the proposition that mandamus is a “drastic remedy” and appellate interference with discovery is reserved for “extraordinary situations.”
• Ex parte Fahey, 332 U.S. 258 (1947): Cited for the classic formulation that mandamus is “reserved for really extraordinary causes.”
• MDK, Inc. v. Mike's Train House, Inc., 27 F.3d 116 (4th Cir. 1994): Cited to underscore that discovery is “more properly managed by trial courts,” counseling restraint.
• In re Dep't of Com., 586 U.S. 956 (2018) (mem.): Discussed (via the Ninth Circuit) as an example of the Supreme Court staying a cabinet-level deposition while permitting depositions of other officials—supporting a substitution/less-intrusive-discovery approach.

3.2. Legal Reasoning

A. The court’s clarified rule

The key doctrinal move is the Fourth Circuit’s explicit statement that extraordinary circumstances are required even for depositions of high-ranking officials on topics not involving “mental processes”. That closes a potential gap left by prior Fourth Circuit decisions focused on deliberative or “mental processes” inquiry.

B. The operative test (as stated by the court)

To establish extraordinary circumstances, plaintiffs must show:

• the high-ranking officials have firsthand information;
• the information is relevant and material to the claims; and
• it cannot be reasonably obtained from other sources or other modes of discovery.

C. Application: “need” plus “firsthand knowledge” is not enough

The court rejected the district court’s reasoning that needing information about who made decisions and when, coupled with those officials’ potential firsthand involvement, sufficed to establish extraordinary circumstances. The majority warned that adopting such logic would dissolve the limitation entirely:

D. Exhaustion of ordinary discovery as the fulcrum

The court focused on the “no alternative” requirement and found it unmet because plaintiffs had not pursued:

• Depositions of other lower-ranking officials already identified but not yet taken;
• Rule 30(b)(6) depositions (organizational testimony binding the agency/entity);
• Rule 37 remedies (motions to compel, sanctions) for allegedly inadequate written discovery.

The majority framed this sequencing as a principle of last resort: “Deposing high-ranking officials is a measure of last, not first, resort.”

E. Why mandamus, despite discovery discretion?

Discovery orders are ordinarily discretionary and fact-bound, but the court characterized the district court’s “no alternative” finding as an abuse of discretion because it ignored untried, readily available procedural mechanisms under the Federal Rules. Put differently, the district court’s premise (no alternative) was legally and factually incompatible with the undisputed availability of less intrusive discovery pathways.

F. The dissent’s competing account

Judge Gregory’s dissent contested both the ranking premise and the mandamus posture:

• He argued the officials were “relatively low-ranking” compared to officials protected in prior cases and that depositions of “subcabinet” officials are “profoundly ordinary.”
• He emphasized that mandamus burdens the petitioner and should not turn primarily on the plaintiffs’ deposition burden.
• He would defer to the district court’s fact-finding that defendants’ inadequate discovery responses and the alleged oral nature of key orders created a genuine lack of alternative sources.

3.3. Impact

A. Clarification and expansion within the Fourth Circuit

The decision’s principal precedential contribution is clarifying that the extraordinary-circumstances doctrine is not confined to “mental processes” testimony. Even “factual” depositions of high-level officials (who decided; when; how directives were transmitted) require the same heightened justification.

B. Practical litigation effects: an exhaustion-like expectation

While the court did not formally create an “exhaustion” doctrine, it effectively requires litigants to build a record showing:

• attempted depositions of lower-level personnel,
• use of Rule 30(b)(6), and
• pursuit of Rule 37 enforcement where written discovery is allegedly deficient,

before courts will deem apex depositions “reasonably unobtainable” by other means.

C. Incentives for parties and courts

• For plaintiffs: Expect front-loaded use of 30(b)(6) and motions to compel to demonstrate diligence and to create a record of insufficiency.
• For government defendants: The decision rewards prompt offering of alternative witnesses and mechanisms and underscores that alleged deficiencies in discovery responses should be resolved through Rule 37 rather than by leaping to apex depositions.
• For district courts: The opinion signals that “no alternative” findings must be anchored in a record showing ordinary discovery tools have been attempted and failed.

D. Separation-of-powers emphasis

The court’s reasoning reinforces that apex-deposition limitations serve institutional interests—reducing judicial intrusion into executive functioning—beyond ordinary notions of burden and convenience. That framing may broaden the doctrine’s reach in cases where litigants argue they seek only “non-deliberative” facts.

4. Complex Concepts Simplified

• Writ of mandamus: An extraordinary appellate order directing a lower court to do (or not do) something. It is not ordinary appeal; it is used sparingly when there is a clear right to relief and no adequate alternative.
• Protective order (discovery): A court order limiting discovery (including depositions) to protect a party from undue burden, harassment, or intrusion.
• High-ranking (apex) official deposition doctrine: A judicially developed limitation requiring “extraordinary circumstances” before compelling testimony from senior government officials, to avoid disrupting essential duties and to respect separation of powers.
• Mental processes: Inquiry into how and why a decision was made—deliberations, reasoning, motivations—often treated as especially intrusive.
• Rule 30(b)(6) deposition: A mechanism to depose an organization (including government entities). The organization must designate knowledgeable witnesses to testify on specified topics, often reducing the need to depose top officials.
• Rule 37 remedies: Tools to enforce discovery obligations, including motions to compel and sanctions for noncompliance.
• Appointments Clause: Constitutional provision governing how “Officers of the United States” must be appointed; plaintiffs here alleged unlawful exercise of authority without proper appointment.
• Separation of powers: The constitutional allocation of authority among the branches; the court treated compelled testimony of senior executive officials as potentially straining inter-branch relations.

5. Conclusion

In re: Elon Musk meaningfully tightens and clarifies Fourth Circuit doctrine on depositions of senior executive officials. The court held that extraordinary circumstances are required even for non-deliberative, factual questioning and that plaintiffs must show the information is relevant, material, firsthand, and not reasonably obtainable through other discovery methods. On this record, mandamus issued because plaintiffs had not pursued “ordinary” discovery—such as 30(b)(6) depositions and Rule 37 enforcement—before seeking apex depositions.

The dissent underscores an enduring fault line: whether certain officials are truly “high-ranking” enough to justify apex protections and whether mandamus should police discovery sequencing. Regardless, the majority’s approach will likely push future litigants toward systematic, documented exhaustion of less intrusive discovery before courts in the Fourth Circuit will permit depositions of senior government decisionmakers.