Page 1 - Intervenor-Defendants’ Brief Regarding Notice of Deposition 

4816-5748-1280.1

MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

C. Marie Eckert, OSB No. 883490 

marie.eckert@millernash.com 

Suzanne C. Lacampagne, OSB No. 951705 

suzanne.lacampagne@millernash.com 

MILLER NASH GRAHAM & DUNN LLP 

3400 U.S. Bancorp Tower 

111 S.W. Fifth Avenue 

Telephone: (503) 224-5858 

Facsimile: (503) 224-0155 

Roger R. Martella, Jr.

rmartella@sidley.com 

Frank R. Volpe 

fvolpe@sidley.com 

Benjamin E. Tannen

btannen@sidley.com 

SIDLEY AUSTIN LLP 

1501 K Street, N.W. 

Washington, D.C. 20005 

Telephone: (202) 736-8000 

Facsimile: (202) 736-8711 

Attorneys for Intervenor-Defendants 

National Association of Manufacturers 

American Fuel & Petrochemical Manufacturers 

American Petroleum Institute 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION

KELSEY CASCADIA ROSE JULIANA, et al.,

 Plaintiffs, 

 v.

UNITED STATES OF AMERICA, et al., 

 Defendants. 

 __________________________________________

Case No. 6:15-cv-01517-TC 

INTERVENOR-DEFENDANTS’ 

BRIEF REGARDING NOTICE OF 

DEPOSITION 

Intervenor-Defendants submit this brief in connection with the discovery hearing 

scheduled for January 27, 2017 (Dkt. 99) to address Plaintiffs’ Notice of Deposition of Rex 
 

Page 2 - Intervenor-Defendants’ Brief Regarding Notice of Deposition 

4816-5748-1280.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

Tillerson. As requested by Paul Bruch, Courtroom Deputy, in his January 18, 2017, e-mail to 

counsel, Intervenor-Defendants are submitting a short summary of the dispute. 

ISSUE 

Whether Plaintiffs’ Notice of Deposition of Rex Tillerson is improperly issued 

under Fed. R. Civ. P. 30 and 34 because Mr. Tillerson is not currently affiliated with any of the 

Intervenor-Defendants and because discovery is not presently authorized in the matter. 

FACTS 

On Wednesday, December 28, 2016, Plaintiffs served on Intervenor-Defendants’ 

counsel a Notice of Deposition seeking the testimony of Rex Tillerson on January 19, 2017. 

Ex. 1, Plaintiffs’ Notice of Deposition of Rex Tillerson, at 2 (Dec. 28, 2016). The Notice of 

Deposition included a demand for the production of 42 separate categories of documents 

unlimited by any date. Id. at 6-13. Those requests sought information as far-ranging as 

Mr. Tillerson’s “communications with any representatives of the administration of former 

President George W. Bush pertaining to the UN Framework Convention on Climate Change” to 

“communications regarding the McCain-Lieberman 2003 Climate Stewardship Act.” 

On Tuesday, January 3, 2017, counsel for Intervenor-Defendants sent a letter to 

Plaintiffs’ counsel, notifying them that the deposition notice under Fed. R. Civ. P. 30 and 34 was 

improper because Mr. Tillerson had no affiliation with any of the Intervenor-Defendants and the 

Notice violated the conferral requirements of District of Oregon L.R. 30-2. See Ex. 2, Letter 

from C. Marie Eckert to Julia A. Olson, Philip L. Gregory, and Daniel M. Galpern (Jan. 3, 2017). 

On Friday, January 6, 2017, Plaintiffs’ counsel responded by offering to 

“evaluate the appropriateness” of Intervenor-Defendants’ objection to the Notice of Deposition if 

Intervenor-Defendants would provide a list of all positions Mr. Tillerson may have held in the 
 

Page 3 - Intervenor-Defendants’ Brief Regarding Notice of Deposition 

4816-5748-1280.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

past with Intervenor-Defendants and their members. See Ex. 3, Letter from Philip L. Gregory to 

C. Marie Eckert et al. (Jan. 6, 2017). 

On Thursday, January 12, 2017, counsel for Intervenor-Defendants responded to 

the January 6, 2017 letter by reiterating that Mr. Tillerson holds no position with any of the 

Intervenor-Defendants, and that the Notice of Deposition was also inappropriate since formal 

discovery had yet to begin. As such, the Intervenor-Defendants noted they could not require 

Mr. Tillerson to attend a deposition and requested that Plaintiffs withdraw the Notice. See Ex. 4, 

Letter from C. Marie Eckert to Julia A. Olson, Philip L. Gregory, and Daniel M. Galpern (Jan. 

12, 2017). 

On Friday, January 13, 2017, counsel for Plaintiffs sent a letter to counsel for 

Intervenor-Defendants, asserting that discovery was proper at this time and that the Notice was 

valid “based on the information we have concerning Mr. Tillerson’s affiliation with the 

Intervenor Defendants.” See Ex. 5, Letter from Philip L. Gregory to C. Marie Eckert et al. (Jan. 

13, 2017). 

On Tuesday, January 17, 2017, Plaintiffs’ counsel sent another letter stating that 

they intended to proceed with Mr. Tillerson’s deposition on January 19, 2017. See Ex. 6, Letter 

from Philip L. Gregory to C. Marie Eckert et al. (Jan. 17, 2017). That same day, counsel for 

Intervenor-Defendants sent a letter reiterating that the Notice was improper and that Plaintiffs 

“should not travel to Dallas with the goal of taking Mr. Tillerson’s deposition.” See Ex. 7, Letter 

from C. Marie Eckert to Julia A. Olson, Philip L. Gregory, and Daniel M. Galpern (Jan. 17, 

2017). 
 

Page 4 - Intervenor-Defendants’ Brief Regarding Notice of Deposition 

4816-5748-1280.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

On Wednesday, January 18, 2017, Plaintiffs’ counsel contacted the Court to set 

up an informal discovery conference regarding the Notice (Dkt. 99), which has been set for 

January 27, 2017. 

ARGUMENT 

Plaintiffs’ Notice of Deposition is improper because (1) Mr. Tillerson is not 

currently affiliated with any of the Intervenor-Defendants, (2) the Notice’s requests for 

documents are not relevant to any party’s claim or defense in this case, and (3) formal discovery 

has not commenced in this case. 

I. Plaintiffs’ Notice of Deposition Is Improper Because Mr. Tillerson Is Not Affiliated 

 With Any of the Intervenor-Defendants. 

Plaintiffs’ Notice of Deposition asserts that Mr. Tillerson “is a representative and 

a board member of one or more parties to this action.” Ex. 1 at 2. It is well known that 

Mr. Tillerson has left the private sector to pursue a position as President Donald Trump’s 

Secretary of State, which requires Senate confirmation. Part of the confirmation process 

includes the public disclosure of Mr. Tillerson’s affiliations and the dates of those affiliations. 

As listed in Mr. Tillerson’s Public Financial Disclosure Report, Mr. Tillerson was an Executive 

Committee Member of Intervenor-Defendant American Petroleum Institute from January 2006 

until December 2016. See Ex. 8, Public Financial Disclosure Report for Rex Wayne Tillerson, 

at 2 (Dec. 31, 2016). Mr. Tillerson has held no position with the other Intervenor-Defendants. 

As noted above, Intervenor-Defendants have repeatedly advised Plaintiffs that their assertion is 

incorrect and that Mr. Tillerson presently has no relationship with the Intervenor-Defendants. 

Under Fed. R. Civ. P. 30(a)(1), a party may seek the deposition of “any person, 

including a party....” It is well established, however, that there are different procedures for 
 

Page 5 - Intervenor-Defendants’ Brief Regarding Notice of Deposition 

4816-5748-1280.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

taking depositions from party witnesses and nonparty witnesses. “If a person is a party, a simple 

notice of deposition is sufficient to compel attendance, while a nonparty’s attendance can be 

compelled only by subpoena.” Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 

1158 (9th Cir. 2010) (citation omitted). The same distinction is true for compelling nonparties to 

produce documents. Fed. R. Civ. P. 34(c) (“As provided in Rule 45, a nonparty may be 

compelled to produce documents ....”). 

Because Mr. Tillerson has no affiliation with any of the Intervenor-Defendants 

and is not a party to this litigation himself, Plaintiffs cannot require his appearance at a 

deposition or require him to produce documents through a Notice of Deposition issued pursuant 

to Rules 30 and 34. See, e.g., Kelsey v. Donley, No. 09-21125-CIV, 2009 WL 2365717, at *1-2 

(S.D. Fla. July 30, 2009) (holding that notice of deposition to former employee of United States 

Air Force was improper); Fed. R. Civ. P. 45 advisory committee’s note to 2013 amendment 

(“Subpoenas are essential to obtain discovery from nonparties.”); cf. Seiter v. Yokohama Tire 

Corp., No. C08-5578, 2009 WL 3663399, at *1 (W.D. Wash. Nov. 3, 2009) (treating a former 

employee as a nonparty for purposes of a Fed. R. Civ. P. 45 trial testimony subpoena). 

II. Plaintiffs’ Document Requests Are Not Relevant to any Party’s Claims or Defenses. 

Moreover, the broad-ranging requests for documents in the Notice are not relevant 

to any party’s claims or defenses in this case. The core of Plaintiffs’ Amended Complaint is that 

federal executive agency inaction has “violate[d] their substantive due process rights to life, 

liberty, and property, and that defendants have violated their obligation to hold certain natural 

resources in trust for the people and for future generations.” Dkt. 83 at 2. There are no 

allegations or claims against Mr. Tillerson. There are no allegations or claims against the 

Intervenor-Defendants. As the Court noted, the Amended Complaint essentially “challenge[s] 
 

Page 6 - Intervenor-Defendants’ Brief Regarding Notice of Deposition 

4816-5748-1280.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

defendants’ climate change policy in court.” Id at 4. Whether Plaintiffs can craft and issue 

discovery against the government that reasonably leads to admissible evidence remains to be 

seen, and will likely be the subject of the upcoming Rule 16 conference with the Court, 

scheduled for February 7, 2017. See Dkt. 91. For now, the Notice of Deposition and its request 

for documents served on the Intervenor-Defendants appears to be nothing more than a 

mechanism to create media headlines and to harass Mr. Tillerson, who remains in the middle of 

confirmation proceedings for Secretary of State.1

III. Plaintiffs’ Notice of Deposition Is Improper Because Formal Discovery Has Not 

 Yet Commenced. 

Finally, even if the Notice of Deposition was otherwise appropriate—and it is 

not—it is presently improper because formal discovery in this case has not yet begun. Pursuant 

to Federal Rule of Civil Procedure 26(d), Plaintiffs may not seek discovery until the parties have 

satisfied their obligations to confer in accordance with Fed. R. Civ. P. 26(f). The Parties have 

not completed the conferral process. In addition, by court order, the parties are required to 

confer after both the federal Defendants and Intervenor-Defendants filed their answers in 

advance of the Fed. R. Civ. P. 16 conference scheduled to be held on February 7, 2017. See 

Dkt. 91. Furthermore, as the Court stated in the Order granting the motion to intervene, “[t]he 

contours of discovery are difficult to determine in a novel case such as this that sits somewhere 

between a civil rights action and NEPA/Clean Air Act/Clean Water Act suit. Should the 

 

1 Plaintiffs’ tactics are made clear by even a cursory review of the media coverage they have generated. Upon 

serving the Notice of Deposition, Plaintiff, Our Children’s Trust, issued a media statement, titled “Youth Seek to 

Obtain Testimony from Rex Tillerson in Constitutional Climate Lawsuit,” which quotes Phillip Gregory and Julia 

Olson, both of whom represent Plaintiffs. The media statement was quoted in several news stories with headlines 

such as “Tillerson Climate Deposition Looms as Confirmation Hearing Begins.” Ms. Olson also spoke with the 

media as reported in a Business Insider article titled “Trump’s Secretary of State Nominee May Have to Testify in a 

Landmark Climate Change Lawsuit the Day Before Inauguration.” See, e.g., Benjamin Hulac, Tillerson Climate 

Deposition Looms as Confirmation Hearing Begins, CLIMATEWIRE (Jan. 11, 2017), 

http://www.eenews.net/climatewire/2017/01/11/stories/1060048186. 
 

Page 7 - Intervenor-Defendants’ Brief Regarding Notice of Deposition 

4816-5748-1280.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

complaint survive the motions to dismiss, the court will hold a Rule 16 conference to address 

how discovery will be conducted and other case management issues.” Dkt. 50 at 9. As noted, 

that Rule 16 conference has not been completed and there is no case management order in place 

governing discovery. Accordingly, discovery regarding Mr. Tillerson, or any other subject, is 

improper. See Fed. R. Civ. P. 30(a)(2)(iii) (stating that a party cannot “take [a] deposition before 

the time specified in Rule 26(d)” without “obtain[ing] leave of court”). 

DATED this 25th day of January 2017. 

 MILLER NASH GRAHAM & DUNN LLP 

/s/ C. Marie Eckert_____________ 

C. Marie Eckert, OSB No. 883490 

marie.eckert@millernash.com 

Suzanne C. Lacampagne, OSB No. 951705 

suzanne.lacampagne@millernash.com 

3400 U.S. Bancorp Tower 

111 S.W. Fifth Avenue 

Portland, Oregon 97204 

Telephone: (503) 224-5858 

SIDLEY AUSTIN LLP 

/s/ Roger R. Martella, Jr. 

Roger R. Martella, Jr. 

rmartella@sidley.com 

Frank R. Volpe 

fvolpe@sidley.com 

Benjamin E. Tannen 

btannen@sidley.com 

1501 K Street, N.W. 

Washington, D.C. 20005 

Telephone: (202) 736-8000 

 Attorneys for Intervenor-Defendants 

 National Association of Manufacturers, 

 American Fuel & Petrochemical Manufacturers, 

 and American Petroleum Institute 
Page 1 - Certificate of Service 

4816-5748-1280.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

T: 503.224.5858 | F: 503.224.0155 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

I hereby certify that I served the foregoing Intervenor-Defendants’ Brief 

Regarding Notice of Deposition on: 

Julia A. Olson 

Wild Earth Advocates 

1216 Lincoln Street 

Eugene, Oregon 97401 

E-mail: juliaaolson@gmail.com 

Attorney for Plaintiffs 

Daniel M. Galpern

Law Offices of Daniel M. Galpern 

1641 Oak Street 

Eugene, Oregon 97401 

E-mail: dan.galpern@gmail.com 

Attorney for Plaintiffs 

Philip L. Gregory 

Cotchett, Pitre & McCarthy, LLP 

840 Malcolm Road 

Burlingame, California 94010 

E-mail: pgregory@cpmlegal.com 

Attorney for Plaintiffs 

Sean C. Duffy

United States Department of Justice 

Environment & Natural Resources Division 

Natural Resources Section 

P.O. Box 7611 

Washington, D.C. 20044 

E-mail: sean.c.duffy@usdoj.gov 

Attorney for Defendants 

Charles M. Tebbutt

Law Offices of Charles M. Tebbutt, P.C. 

941 Lawrence 

Eugene, Oregon 97401 

E-mail: charlie@tebbuttlaw.com 

Attorney for Amici Curiae Global Catholic 

Climate Movement and Leadership Council 

of Women Religious

Michelle A. Blackwell

Blackwell Law PC 

P.O. Box 10326 

Eugene, Oregon 97440 

E-mail: mblackwell@blackwell.law 

Attorney for Amicus Curiae John Davidson
Page 2 - Certificate of Service 

4816-5748-1280.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

T: 503.224.5858 | F: 503.224.0155 

3400 U.S. BANCORP TOWER 

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Travis Stephen Eiva

Zemper Eiva Law 

101 E. Broadway, Suite 303 

Eugene, Oregon 97401 

E-mail: travis@zempereiva.com 

Attorney for Amici League of Women 

Voters of the United States/League of 

Women Voters of Oregon 

by the following indicated method or methods on the date set forth below: 

 CM/ECF system transmission. 

DATED this 25th day of January, 2017. 

/s/ C. Marie Eckert 

C. Marie Eckert, P.C. 

Oregon State Bar No. 883490 

Of Attorneys for Intervenor-Defendants 

National Association of Manufacturers, 

American Fuel & Petrochemical 

Manufacturers, and American Petroleum 

Institute