In the United States Court of Federal Claims

No. 11-779C

(Filed: July 29, 2013)

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Deposition of Witness Holding 

High-Level Government Position; 

Personal Knowledge of Relevant 

Facts; Improbability of Obtaining 

Same or Similar Information 

From Other Persons or Sources; 

Appropriate Judicial Oversight.

STARR INTERNATIONAL COMPANY, 

INC., on its behalf and on behalf of a class of 

others similarly situated,

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 Plaintiff, *

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v. *

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THE UNITED STATES, *

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 Defendant. *

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David Boies, with whom were Robert J. Dwyer, Nicholas A. Gravante, Jr., Alanna C. 

Rutherford, Julia C. Hamilton, Luke Thara, Hamish P. M. Hume, and Samuel C. Kaplan, 

Boies, Schiller & Flexner LLP, Armonk, New York, and John L. Gardiner, Skadden, 

Arps, Slate, Meagher & Flom LLP, New York, New York, for Plaintiff.

Brian A. Mizoguchi, Assistant Director, with whom were Joyce R. Branda, Deputy

Assistant Attorney General, Jeanne E. Davidson, Director, Scott D. Austin, Assistant 

Director, Timothy P. McIlmail, Senior Trial Counsel, Vincent D. Phillips, Amanda L. 

Tantum, and Benjamin Zeitlin, Trial Attorneys, Commercial Litigation Branch, Civil 

Division, U.S. Department of Justice, Washington, D.C., for Defendant.

ORDER REGARDING THE

DEPOSITION OF BEN S. BERNANKE

WHEELER, Judge.

On June 21, 2013, counsel for Plaintiff served a notice to take the deposition of 

Ben S. Bernanke on Friday, August 16, 2013 at the Washington, D.C. office of Boies, 

Schiller & Flexner LLP. Mr. Bernanke is the Chairman of the Board of Governors of the 

Federal Reserve System. The deposition would relate to Mr. Bernanke’s personal 
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involvement in the Government’s decision to bail out American International Group, Inc. 

(“AIG”) in September 2008, and his knowledge of the specific governmental actions 

taken to implement the bailout. Mr. Bernanke repeatedly has acknowledged that he was a 

key decision-maker on behalf of the Government, and his testimony unquestionably is 

relevant to the Fifth Amendment taking and illegal exaction claims before the Court. 

Defendant opposes this deposition on the ground that Mr. Bernanke is a high-ranking 

government official whose deposition should not be taken absent a showing of 

extraordinary circumstances.

After “meet and confer” efforts among counsel proved unsuccessful, Defendant 

filed a motion for a protective order on July 8, 2013 asking the Court to preclude the 

deposition of Mr. Bernanke. Defendant argues that a party seeking testimony from a 

high-level government official must show that the information sought from the official is 

“essential to his case, . . . [and] not obtainable from another source.” Def’s Mot. 2 (citing 

In re United States (Holder), 197 F.3d 310, 314 (8th Cir. 1999)). Defendant states that 

“[i]f other persons can provide the information sought, discovery will not be permitted 

against [a high-ranking] official.” Id. (citing Holder, 197 F.3d at 314). Defendant 

contends that Plaintiff should be required to pursue other avenues of discovery first 

before seeking Mr. Bernanke’s testimony. In its July 23, 2013 reply, Defendant also 

asserts that a deposition would interfere with Mr. Bernanke’s important duties in 

managing the nation’s economy and fiscal policy.

On July 16, 2013, Plaintiff filed its opposition to the Government’s motion for a 

protective order. Plaintiff emphasizes the following reasons for taking Mr. Bernanke’s 

deposition: (1) he was the key decision-maker in the Government’s initiation of the 

bailout of AIG; (2) he has knowledge of relevant aspects of this case, including the 

Government’s decision to offer AIG a loan, whether AIG was financially solvent, 

whether bankruptcy was a viable option for AIG, whether the Government’s actions 

toward AIG were punitive, and whether the Government took control of AIG; (3) he has 

provided testimony before Congress regarding AIG at least five times; (4) he has given 

speeches at various organizations and has performed a lecture series available on the 

Federal Reserve website addressing the AIG bailout; and (5) he has written a book that in 

part discusses the AIG bailout. Pl.’s Opp. 1-2.

As a general rule, high-ranking government officials such as cabinet officers or 

department or agency heads cannot be forced to testify absent extraordinary 

circumstances. Simplex Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 586-87 

(D.C. Cir. 1985). However, the “[d]eposition of high ranking officials may be permitted 

where the official has first-hand knowledge related to the claim being litigated [and] only 

where it is shown that other persons cannot provide the necessary information.” Bogan v. 

City of Boston, 489 F.3d 417, 423 (1st Cir. 2007). A plaintiff requesting such a 

deposition must establish that (1) the official has personal knowledge of relevant facts 
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necessary to the case, and (2) the information cannot be obtained through other sources. 

Holder, 197 F.3d at 314.

Obtaining the testimony of high-level government officials is a relatively routine 

practice in the Court of Federal Claims when the official has personal knowledge of 

relevant information. See, e.g., Moreland Corp. v. United States, 76 Fed. Cl. 268, 270 

n.2 (2007) (noting that trial witnesses included Anthony Principi, former Secretary of 

Veterans Affairs); Energy Capital Corp. v. United States, 60 Fed. Cl. 315, 318-19 (2004) 

(ordering the deposition of former Secretary of Housing and Urban Development Andrew 

Cuomo as to his personal knowledge of relevant facts); McDonnell Douglas Corp. v. 

United States, 35 Fed. Cl. 358, 366 n.9 (Fed. Cl. 1996) rev’d in part on other grounds, 

vacated in part on other grounds, and remanded, 182 F.3d 1319 (Fed. Cir. 1999)

(describing deposition and trial testimony of Secretary of Defense Richard B. Cheney 

regarding termination for default of the A-12 aircraft program); Langenegger v. United 

States, 5 Cl. Ct. 229, 234 (1984), aff’d in part and vacated in part, 756 F.2d 1565 (Fed. 

Cir. 1985) (permitting depositions of senior State Department officials).

1

 This practice 

can hardly be surprising, given the very essence of the Court’s jurisdiction, which allows 

private citizens to sue the federal government for monetary redress. As stated by 

President Abraham Lincoln and memorialized on the lobby wall of the National Courts 

Building, “[i]t is as much the duty of Government to render prompt justice against itself, 

in favor of citizens, as it is to administer the same between private individuals.” 62 

Cong. Globe, 37th Cong., 2d Sess., App. at 2 (1862). In large cases challenging actions 

at the top levels of the Government, it is unremarkable that high-level government 

officials will play a role in the litigation.

Here, the Court concludes that Plaintiff should be permitted to depose Mr. 

Bernanke. The Court is persuaded that Mr. Bernanke is a key witness in this case, and 

that his testimony will be highly relevant to the issues presented. Because of Mr. 

Bernanke’s personal involvement in the decision-making process to bail out AIG, it is 

improbable that Plaintiff would be able to obtain the same testimony or evidence from 

other persons or sources. Unlike the cases cited by Defendant where the high-level 

government official had little or no personal involvement, Mr. Bernanke was a central 

figure in the Government’s 2008 determination of how it should handle AIG’s fiscal 

difficulties. To rule otherwise would deprive the Court of important relevant evidence in 

its fact-finding and resolution of this case. Indeed, the Court cannot fathom having to 

decide this multi-billion dollar claim without the testimony of such a key government 

decision-maker. These facts constitute “extraordinary circumstances” for the taking of 

Mr. Bernanke’s deposition. 

 

1 Anecdotally, the Court also is aware of testimony obtained from General Colin Powell, Chairman of the 

Joint Chiefs of Staff, William J. Casey, Director of the Central Intelligence Agency, Alfred C. Sikes, 

Chairman of the Federal Communications Commission, and Richard G. Austin, Administrator of the 

General Services Administration. Other examples undoubtedly exist.
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In recognition of Mr. Bernanke’s high-level government position and the 

importance of his duties, the Court will extend appropriate deference and courtesies to 

him in the scheduling and conduct of this deposition. In order to provide appropriate 

judicial oversight for the deposition of this high-level government official, Judge Wheeler 

plans to attend Mr. Bernanke’s deposition. Judge Wheeler will be available to rule upon 

any objections that may occur, and to assure that proper and efficient use of time is 

maintained. Counsel are requested to coordinate the scheduling of this deposition with 

Mr. Bernanke and the Court. The August 16, 2013 date contained in the deposition 

notice is acceptable to the Court, but counsel may call the chambers law clerk assigned to 

this case to determine the availability of other dates.

Defendant’s motion for a protective order is DENIED.

IT IS SO ORDERED.

s/Thomas C. Wheeler

THOMAS C. WHEELER

Judge