Filed: 6/29/2020 11:24 AM

Lisa David, District Clerk

Williamson County, Texas
Tammy Clinton

CAUSE NO. 20-0009-C26

BRIAN JOHNS § IN THE DISTRICT COURT

§
v. § 26TH JUDICIAL DISTRICT
§
WILLIAMSON COUNTY, TEXAS § WILLIAMSON COUNTY, TEXAS

DEFENDANT WILLIAMSON COUNTY’S REPLY TO PLAINTIFF’S

RESPONSE IN OPPOSITION TO MOTION TO QUASH
AND MOTION FOR PROTECTIVE ORDER

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Defendant Williamson County (“Defendant”), and files this Reply to

Plaintiff’s Response in Opposition to Defendant’s Motion to Quash and Motion for Protective

Order to briefly address the misleading characterizations therein, and will show the Court as

follows:

I. Introduction

Despite Plaintiff’s contention throughout his Response in Opposition to Defendant’s

Motion to Quash and Motion for Protective Order (“Plaintiff’s Response”) that this case involves

a multitude of issues that require Sheriff Chody’s deposition, this lawsuit boils down to a very

narrow issue – was Plaintiff terminated in retaliation for making an alleged good faith report of an

alleged violation of law by his employing governmental entity or another public employee. This

case is not about whether Sheriff Chody had an open-door policy, whether Sheriff Chody sees past

job evaluations for employees, or the relationship between Sheriff Chody and Plaintiff or any other

Williamson County employee. Plaintiff is attempting to mislead this Court about the real issues

in this case in an attempt to use Sheriff Chody’s deposition for abuse, harassment and to further

political and personal agendas.

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 II. Argument & Authorities

A. Sheriff Chody is a High-Ranking Government Official

Plaintiff’s argument that Sheriff Chody is not a “high-ranking government official” is

illogical and not supported by case law or common sense. Sheriff Chody is one of Williamson

County’s highest-ranking government officers who oversees an agency employing hundreds of

individuals. Courts across the country have found that the apex doctrine applies to Sheriffs and

other high-ranking government officials. See Anderson v. County of Contra Costa, 15-CV-01673-

RS (MEJ), 2017 WL 930315 (N.D. Cal. Mar. 9, 2017) (finding the sheriff was “an apex employee

or high-ranking official, to whom the apex doctrine applies”); Myles v. County of San Diego,

15CV1985-BEN (BLM), 2016 WL 4366543, at *4 (S.D. Cal. Aug. 15, 2016) (finding the sheriff

subject to the apex doctrine where plaintiff acknowledged he was the department’s “chief policy

maker and highest ranking government officer”); Barnes v. Sulak, 03-01-00159-CV, 2002 WL

1804912, at *5 (Tex. App. – Austin Aug. 8, 2002, pet. denied) (finding that apex deposition applied

to county judge and Plaintiff failed to show the county judge had unique or superior knowledge

about the subject matter of her claims); Stagman v. Ryan, 176 F.3d 986, 994 (7th Cir. 1999)

(affirming district court’s decision to protect Illinois Attorney General from deposition); Warzon

v. Drew, 155 F.R.D. 183, 185 (E.D. Wis. 1994) (high-ranking government officials enjoy limited

immunity from deposition as they “must be allowed the freedom to perform their tasks without the

constant interference of the discovery process”). Here, case law and factual evidence certainly

support the finding that Sheriff Chody is a high-ranking official and therefore entitled to protection

under the apex doctrine.

B. Plaintiff’s Response Is Supported By Case Law That Is Not Applicable To This Case

Plaintiff’s Response cites numerous cases that have no actual relevance or application to

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 the case at hand. For example, Plaintiff cites In re Miscaviage, 436 S.W.3d 430, 435 (Tex. App.

– Austin 2014, orig. proceeding) for the proposition that an executive that is a named party could

be subject to deposition under certain circumstances. Plaintiff attempts to make a nonsensical

argument that Sheriff Chody is not a named party, but he could be a named party, so the standard

articulated in In re Miscaviage applies. First, Sheriff Chody is clearly not a named party in this

lawsuit, and therefore In re Miscaviage is not instructive of the standards that should apply here.

Second, assuming arguendo that Sheriff Chody was a named party, the Court in In re Miscaviage

found that if an executive is a named defendant “based on his capacity as an executive, then the

apex doctrine is implicated and the Crown Central standard should be applied to a request for his

deposition.” Id. at 438. Here, even if Sheriff Chody was a named defendant, it would simply be

in his capacity as Sheriff, and not based on a dispute that is unrelated to his status as Sheriff. As

explained above, the dispute in this case is simply if Plaintiff was terminated in retaliation for

making a good faith report of an alleged violation of law by his employing governmental entity or

another public employee. As discussed below, and confirmed by the evidence in this case, Sheriff

Chody was not involved in the decision to terminate Plaintiff’s employment with Williamson

County.

C. Sheriff Chody Was Not Involved in the Decision to Terminate Plaintiff

Plaintiff alleges throughout his Response that Sheriff Chody terminated Plaintiff, and

therefore, it is “vitally important to have the opportunity to depose Sheriff Chody.” There is not a

single shred of evidence that Sheriff Chody had any involvement in Plaintiff’s termination.

Plaintiff’s deposition testimony, Chief Deputy Tim Ryle’s (“Chief Ryle”) deposition testimony

and all of the documents produced in this case confirm that Sheriff Chody was not involved. Chief

Ryle confirmed in his deposition testimony that Sheriff Chody has delegated decisions on

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 terminations to him.

Q: All right. I’m ready to move on to the next topic, but I’ve got just a couple of more
follow-up questions on the process that we were talking about. So we agreed that
the Sheriff as the head elected official of the department has the right to make the
final decision on terminations, correct?

A: He delegates that to me.

Ex. A, Chief Deputy Tim Ryle Dep. at 51:21-52:2. Chief Ryle further unequivocally testified that

he made the decision to terminate Plaintiff.

Q: Were you the person who made the decision to terminate Brian?

A: I Was.

Id. at 55:19-21.

Plaintiff’s contention that Sheriff Chody was somehow involved in his termination and

also knew of his alleged whistleblower complaints is nothing more than Plaintiff’s own misguided

speculation, as confirmed by Plaintiff in his deposition.

Q: Do you have any evidence that Sheriff Chody was involved in the decision to
terminate you?

A: No.

Ex. B, Brian Johns Dep. at 137:24-138:1.

Q: Do you have any actual evidence that Sheriff Chody knew about your report of a –
of an alleged violation of the law related to his ATV?

A: No.

Q: Okay. So, it’s your own speculation that he did know, correct?

A: Correct.

Q: Did anyone else tell you that he knew?

A: No.

Id. at 137:24-138:1.

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 The Fifth Circuit has consistently required that when a party seeks an apex deposition of a

top government official, the party must prove the extraordinary or exceptional circumstances that

justify the deposition. In re F.D.I.C., 58 F.3d 1055, 1060 (5th Cir. 1995). Plaintiff’s own irrational

speculation, that is not confirmed by any evidence in this case, is simply not “extraordinary or

exceptional circumstances.” Further, the Texas Supreme court has made abundantly clear that

“[a]bsent a showing that an executive arguably has unique or personal knowledge, a court has no

discretion to allow an apex deposition unless the party seeking the deposition establishes that it

has attempted to obtain the information through less intrusive methods.” In re Alcatel USA, Inc.,

11 S.W.3d 173, 180 (Tex. 2000). In other words, because Sheriff Chody is clearly “high-ranking,”

the Court should consider whether he has unique firsthand, non-repetitive knowledge of the facts

at issue in this case, and whether Plaintiff has exhausted other less intrusive discovery methods.

Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007).

Sheriff Chody clearly has no unique firsthand, non-repetitive knowledge of the core issues

in this case, nor has Plaintiff exhausted other less intrusive discovery methods. Courts in Texas

and across the country have found that “[w]here a high-level decision maker removed from the

daily subjects of the litigation has no unique personal knowledge of the facts at issue, a deposition

of the official is improper.” Groupion, LLC v. Groupon, Inc., No. 11-870 MEJ, 2012 WL 359699,

at *2 (N.D. Cal. Feb. 2, 2012) (internal quotation omitted). This is especially the case where the

information sought can be obtained through less intrusive discovery methods, such as by

interrogatory or depositions of lower-level employees with more direct knowledge of the facts at

issue. Id. Here, Defendant has already presented Chief Deputy Tim Ryle for deposition, the

individual who terminated Plaintiff and the second highest ranking employee of the Sheriff’s

Office. Additionally, Defendant has also already agreed to, and already scheduled the depositions

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 of two other members of Plaintiff’s chain of command. Both have knowledge of the facts at issue,

including of Plaintiff’s multitude of performance issues, which ultimately led to his termination.

Because Sheriff Chody is a high-ranking government official, the burden is on the Plaintiff

to articulate the need for Sheriff Chody’s deposition testimony, and Plaintiff has failed to articulate

a legitimate need. Deposing Sheriff Chody is burdensome and disruptive and any such deposition

should be reserved for extraordinary circumstances. Here Plaintiff cannot demonstrate

extraordinary circumstances that would support subjecting Sheriff Chody to deposition, and

therefore, he should not be called to testify.

WHEREFORE, PREMISES CONSIDERED, Defendant, Williamson County, respectfully

prays that this motion be in all things granted.

Respectfully submitted,

GERMER PLLC
America Tower
2929 Allen Parkway, Suite 2900
Houston, Texas 77019
(713) 650-1313 – Telephone
(713) 739-7420 – Facsimile

______________
Larry J. Simmons
State Bar No. 00789628
ljsimmons@germer.com
Ryan C. Krone
State Bar No. 24085750
rkrone@germer.com

COUNSEL FOR DEFENDANT

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 CERTIFICATE OF SERVICE

I hereby certify that on the 29th day of June, 2020, a true and correct copy of the forgoing
document was forwarded to all known counsel of record pursuant to the Texas Rules of Civil
Procedure.

______________
Ryan C. Krone

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 Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Trisha Wiggins on behalf of Ryan Krone

Bar No. 24085750
TrishaWiggins.gb@fsxclient.com
Envelope ID: 44107230
Status as of 06/29/2020 16:03:49 PM -05:00

Associated Case Party: Williamson County Texas

Name BarNumber Email TimestampSubmitted Status

Larry J.Simmons ljsimmons@germer.com 6/29/2020 11:24:07 AM SENT

Ryan C.Krone rkrone@germer.com 6/29/2020 11:24:07 AM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Trisha Wiggins trishaw@germer.com 6/29/2020 11:24:07 AM SENT

Kim Warren kwarren@germer.com 6/29/2020 11:24:07 AM SENT

Associated Case Party: Brian Johns

Name BarNumber Email TimestampSubmitted Status

Randall D.Moore rmoore@randallmoorelaw.com 6/29/2020 11:24:07 AM SENT

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