Elon Musk Petition for Writ of Mandamus - Deposition Protective Order

1 FILED: March 4, 2 026 UNITED STATES CO URT OF APPE ALS FOR THE FOURTH C IRCUIT No. 26-1160 (8:25- cv -00462-T DC) In re: ELON MUSK, i n his official capacit y; UNITED STATES DOGE SERV ICE; DEPARTMENT OF G OVERNMENT E FFICIENCY; U NITED STATES DEPARTMENT OF S TATE; UNITED S TATES AGE NCY FOR INTERNA TIONAL DEVELOPMENT; M ARCO RUBIO, i n his official capac ity; PETER MARO CCO, in hi s official capacity; JERE MY LEWIN, in hi s official capacity; KENNE TH JACKSON, i n his official capacity; A MY GLEASON, in her official capac ity, Petitioner s. O R D E R QUATTLEBAUM, Cir cuit Judge: Before us is a petition for writ of mandamus filed by Elon Musk, United States DOGE Service, Department of Governm ent Efficiency, Unite d States Department of State, United States Agency for International Development (USAID), Marco Rubio, Peter Marocco, Jeremy Lewin, Kenneth Jackso n and Amy Glea son. A t issue is the dis trict court’s order denyi ng petitioners ’ motion for a pro tective order to prevent t he depositions of Musk, Marocco and Lewin. 1 1 At a status conference after the denial of th e motion, petitioners sought clarificati on of whether the order also covered Gleason, who plaintiffs also so ught to depose, noting her deposition would implicate similar issues as Musk, Marocco and Lewin. ECF 3 at 72. The

2 P laintiffs in this case are former USAID e mployees and contractors who seek declaratory and injunctive relief against petition er s, alleging their a ctions pertaining to USAID v iolat ed the Constitution’s Appointments Clause and se paration of power s principles. 2 Whi le discovery was ongoing, petitioners move d for a protective order to prevent depositions of Musk, Mar occo and Le win, noting that “lo ngstanding limitations on deposing high-level Executive Branch personnel requir es Plaintiffs to show exceptional circumstances exist before the depositions oc cur.” Motion for Prote ctive Or der, Doe s v. Musk, 8:25- cv -00462- TDC (D. Md. No v. 21, 2025), ECF No. 1 89 -1 at 1. On February 4, 2026, the district court denied the protective ord er. Memorand um Order, Does v. Musk, 8:25- cv -00462-TDC (D. Md. Feb. 4, 2026), ECF No. 200. Although the district court expressed skepticism, it assumed that Musk, Marocco and Lewin were high-ranking government officials and found that the testimony plaintiffs sought was not about “mental pro cesses used in, and the reasons for, agency deci sions.” Id. at 4 – 5. The court also held that ev en if the limitation on deposing high -ranking officials extended beyond those officials’ mental pro cesses, plaintiffs had shown that extraordinar y circumstances meri ted Musk, Marocco and L ewin’s depositions anyway. See id. at 5 – 8. On extra ordinary circ umstances, the district court poi nted out that there is a specific need court said it would consider a mo tion if it was filed pertaining to Gleason, but that petitioners should “wor k within the law of the case....” Id. We decline to address whether Gleason may be deposed given the absence of any ruling on a motion for a protective order as to her at this time. 2 More deta iled facts are set forth in thi s court’s earlier order granting petitioners’ motion for a stay p ending appeal. See Does 1-26 v. Musk, No. 25-1273, 2025 WL 1020995 (4th Cir. M ar. 28, 2025).

3 for testimony about the identity of decisionmakers and t he timing of decisions and that Musk, Marocco and Lewin have firsthand information about those matters not otherwise obtainable from other sources. Id. at 6 – 7. In determining that the information was not available from other so urces, the dist rict court explained tha t petitione rs had not resp onded adequately, or at all, to writte n discovery re quests. Id. at 7 – 8. Pet itioners then filed a petition for writ of mandamus in this court seeking relief from the dis trict court’s denial of the protective order. ECF 2. Mandamus r elief is a drastic and extraordinary remedy reserved for extraordinar y cases. See Cheney v. U.S. Dist. Ct. for D.C., 5 42 U.S. 367, 380 (200 4). The part y seeki ng mandamus must sho w a clear a nd indisputabl e right to the relief sou ght and that there ar e no other means of obtaining relief. See id. at 380 – 81. And the court must, in its discretion, “be satisfied that the writ is appro priate under the circumstances.” Id. at 381. To depose Musk, Ma rocco and Lewin, as high -rankin g government officials, plaintiffs mu st show e xtraordinary circumstances. See Frankli n Sav. Ass’n v. Ryan, 922 F.2d 209 (4th Cir. 1991); In re McCarthy, 636 F. App’x 142 (4t h Cir. 2015). 3 That’s 3 Frankli n and McCarthy considered whether a government deci sionmaker, in extraordinary circumstances, could be deposed specifically about their mental processes. But those decisi ons did not address the question of whether a party seeking to depose high- ranking offici als may be deposed on i ssues that don’t pertai n to their mental processes without showing extraordinary circumstances. In our view, extraordinary circumstances must still be shown. “ Nearly all courts require that a party demonstrate exceptional circumstances justifyin g the deposition of a h igh -ranking go vernment official, g enerally that the official ha s firsthand infor mation relev ant and material t o the claim, whi ch cann ot be reasonabl y obtained from ano ther source or other modes of discove ry.” See Fern Kletter, Deposition of Hi gh -Ranking Government Officials, 15 A.L.R. Fed. 3d Art. 5 (2016); see also Bogan v. City of Boston, 489 F.3d 417, 423 (1st. Cir. 2007) (“Depositions of high

4 because, amo ng other reasons, doing so implicates separation of powers concerns. See In re U.S., 98 5 F.2d at 513 (holding that c ompelling decisi onmaker testimony “w ould have serious repercussions f or the relation ship between two coequal bran ches of govern ment”). We conclude t hat to show such extraordinary circumstances, plaintiff s m ust show t hat the high-r anking officials h ave firsthand inf ormation that is relevant and material to plaintiffs’ claims and that cannot be reas onabl y obtained from other sources or modes of d iscovery. The district court det ermin ed that plaintiffs met their burden of showing of extraordinary circumstances by estab lishing that there is “no alterna tive” for plaintiffs to obtain the infor mation sought other tha n the depositions. M cCarthy, 636 F. App’x at 144. But the record doe s not support that finding. The fact that plaintiffs m ay need the information and that Musk, Marocco and Lewi n may have firsthand information about the identity of decisionmakers and the timing of decisions i s not, b y itself, extraordi nary. If it were, the limitation on deposin g high -ranki ng government officials would be no limit at all. See In re Cheney, 544 F.3d 311, 314 (D.C. Cir. 2008) (“Th e duties of high -ranking ranking officials may be permitted where the official has first -h and knowledge related to the claim being litigate d. However, even in such cases, discovery is permitted only where it is show n that other persons can not pro vide the necessary info rmation.” (c i tations omitted)); In re U.S. Dep’t of Educ., 25 F.4th 692, 701 (9th Cir. 2022) (“[C]abinet secretaries made be deposed under extraordinary circum stances.”); In re Off. of the Utah Att’y Gen., 56 F.4th 12 54, 1259 (10th Cir. 20 22) (“Nearly every circuit to have addressed the question . . . has ad opted some form of an ‘extraordinary circum stances’ test, in which parties must meet a high bar to depose high- ranking officials.”); In re U.S., 624 F.3d 1368, 1372 (11th Cir. 2010) (“We must review the record to determine whether it su pports a finding of extr aordinary circumstances or a ‘s pecial need’ for compe lling the appear ance of a high- ranking offic er in a ju dicial proceed ing.” (q uoting In re U. S., 985 F.2 d 510, 512 (11th Cir. 1993))); In re U.S., 542 F. App’x 944, 947 (Fed. Cir. 2013) (“[M]andamus sh ould issue to prevent such a deposition b ecause Chairman Bernanke is a highly ran ked government official an d [plaintiff] has not shown extraord inary circu mstances.”).

5 executive officers should not be interrupted by judicial demands for in formation that cou ld be obtained elsewhere. ”). And as for the distri ct court’ s statement that petit ioners had not respo nded adequately, or at all, to written discover y requests, nothing in the district court’s order, nor in our review of the re cord, indicate s that pla intiffs only alternative is to depose M usk, Marocco and Lewin. First, plaintiffs do not dispute petitioners’ claim that plaintiffs have deposed four witnesse s but have not yet deposed other lower -r anking officials that they sought. Nor do they dispute petitioners ’ clai m that plaintiffs have not taken depositions under Rule 30(b)(6) of the Federal Rules o f Civil Procedure. Deposing high-ra nking officials is a measure o f last, not first, res ort. Second, even if peti tioners ’ dis covery respon ses are inadequ ate — a decision we do not address here — the Federal Rules of Civil Procedure contai n remedies for inadequacies. For exa mple, they permit motions to compe l appropriate responses and sanctions for noncompliance. See Fed. R. Civ. P. 37. In sum, the district court abused i ts discr etion in holding that plain tiffs have n o alternative to deposing Musk, Marocco and Lewin when the options available unde r the Federal Rules of Ci vil Procedure ha ve not be en pursued. Said differently, at least at this juncture, plaintiffs ha ve not shown t he extraordinary wh e re they have not purs ued the ordinary. 4 4 In citing these reaso ns, that Musk, Maroc co and Lewin have the information plaintiffs need and that petitioners ’ dis covery responses are lacking, our decisi on sh ould not be construed to mean that these are the only considerations for assessing the

6 For these reasons, we grant the petition for mandamus relie f and direct that the district court grant pet itioners ’ motio n for a protective order at this ti me. But our decision does not mean that t he depositi ons of Mus k, Marocco and Lewi n are barr ed for the remainder of t hese proceedings. It just means that plaintiffs have not shown extra ordinary circumstances based on the record b efore us. Entered at the direction of Judge Quattlebaum with the concurrence of Judge Niemeyer. Judge Greg ory filed a dissenting o pinion. For the Court /s/ Nwamaka Ano wi, Clerk extraordinary circumstance s requirement. But since the se are the points the d istrict court relied on, we address t hem.

7 GREGORY, Circuit Ju dge, dissenting: I respectfully dis sent from the order granting a writ of mandamus. For the reasons the district court ably ar ticulated in its memora ndum order, the plain tiffs’ request to depose select defendants in this case d oes not create the “extra ordinary sit uation[] ” required to justify th e “drastic remedy” of this Court’s interference in the discovery process. In re Murphy -Brown, LLC, 907 F.3d 788, 795 (4th C ir. 2018) (internal quotation marks omitted). The majority’s invocati on of a drastic and extraordinary remedy to pr eclude dep osition of four relatively low-ranking officials, who appear to be the only people that can provide the relevant information, has no equal in the caselaw. I. Plaintiffs, several former employees of th e United States Ag ency for International Development (“U SAID”) brought t his suit against current a nd fo rmer federal gover nment officials. The plaintiff s’ primary claims are that defendants violated separation of p owers principles by dismantl ing USAID and that de fendants violated the Appointments Clause of the Constitution wh en Elon Musk wi elded authority to shutter U SAID without proper appointment. Defend ants arg ue that all challenged actions are lawful exercises of executive po wer and th at it was not Musk, but other duly appointed officials, who carried out the challenged acti ons. Plaintiffs h ave pursued several avenues of discovery in the hope of acquiring information about various defendants’ role in shutting down USAID. Defendants described t hat they have produced “four d epositions, thousands of pages of docu ments, and responses to nearl y two dozen interrogat ories.” Petition for Writ of Mandamus at 11.

8 Plaintiffs claimed, and defendants did not contest, that le ss intr usive discovery tactics have not yet uncovered evidence concerning defe ndants’ roles in shutting down USAID, so plaintiffs sought to de pose defendants Elon Musk, Pe ter Marocco, Amy Gleason, and Jeremy Lewin. 1 Defendants request ed a protect ive order precluding depositions of Musk, Marocco, and Lewin, arguing that casela w prohibits depositio ns of high -ranking government officials o utside of exceptiona l circumstances. The distr ict court declined to issue a protecti ve order. It questioned whether the three officials qualified as high -ranking officials, since the cited case law frequentl y permitted depositions of officials that ap pear to outran k these four. But even if they did qualify, the district cou rt ruled that the three defendants “likel y have personal, first - hand knowledge of facts relevant and essential to t he resolution of this ca se.” Does v. Musk, 2026 WL 295364, at *3 (D. Md. Feb. 4, 2026). The district cour t agreed that defend ants had “not responded adequately or at all” to requests for information related to “certain key decisions, including the decisio n to shut dow n USAID headquarter s and t o shut down t he USAID website.” Id. The distric t court went even further, indicating that defendants had “effectively ac knowledged that the se orders were given orally, with no docu mentary record, such that the only evidence on these questions wo uld be the oral testimony of the officials present when t he decisions were m ad e.” Id. at *4. 1 Respectively, a for mer Senior Advisor to the President; a former Acting USAID Deputy Administrator; an Acting Administrator of the United States DOGE Service; and a former USAID Deputy Administrator.

9 Defendants petitione d this court for a writ o f mandamus in a bid to block the depositions of Musk, Marocco, Gleason, a nd Lewin. 2 II. The writ of ma ndamus is a “drastic and extrao rdinary” remedy “reser ved for really extraordinary causes.” Ex parte Fahey, 332 U.S. 258, 259 -60 (1947). The majority notes in passing that the party seeking the writ carries the burden of showing extraordinary cause, but its analysis exclusiv ely discusses the plainti ffs’ supposed burde n to show extraordinary circumstances to depo se high -ranking government of ficials. Se e Maj. Order at 3-4. I dispute tha t the plaintif fs need to make this showing, given the rel atively low r ank of the government defendants here. But in any case, a burden on plaintiffs does not excuse the government’s high burden to claim the writ of manda mus. See Cheney v. U.S. Dist. Ct. for D.C., 54 2 U.S. 367, 3 80-81 (20 04) (discussing the hi gh burden carried by t he petitioner even when petitioner raises a separation of powers defense). “[O]nly exceptional circumstances amounting to a judicial usurpat ion of power or a clear abuse of discretion will justify the invocation of this extraordina ry remedy.” Id. at 380 (internal citatio ns omitted). It is profoundly ordinary that subcabinet officials and former subcabi net officials sit for depositions. In two cases where this Circuit has considered s imilar questions, we granted one writ of mandamus precluding a deposition of the Administrator of the Environmental Protection Agency, at that point a Cabi net official, but we per mitted the 2 The district court sepa rately indicated that its ruling applied to G leason as well.

10 deposition of the Dire ctor of the Office of Thrift Supervision, an agency within the Department of the Trea sury. In re McCarthy, 636 F. App’x 142 (4 th Cir. 2015); Franklin Sav. Ass’n v. Ryan, 92 2 F.2d 209 (4th Cir. 1991). In fa ct, in the typical case in which a high-ranking official p etitions to avoid depos ition, courts inquire w hether a subordina te could sit for the deposition instead. See In re U.S. Dep’t of Educ., 25 F.4th 692, 704 – 05 (9th Cir. 2022) (con sidering the depos ition testimony of Undersecre t aries of Educati on to determine whether pla intiffs had show n it was necessary to de pose the Secretary of Education); id. at 7 02 (describing the Suprem e Court’s order staying the deposit ion of t he Secretary of Commerce but permitting depositions of other officials, including an Assis tant Attorney Genera l at the Department of Justice) (citing In re Dep’t o f Com., 586 U.S. 956 (2018) (mem.)); In re U.S., 624 F.3d 13 68, 1369 – 70 (11th Cir. 2010) (accepting an Assistant Adm inistrato r of the En vironmental Protect ion Agency as a substitute for the Administrator); I n re Cheney, 5 44 F. 3d 311, 314 (D.C. Cir. 2008) (accepting the Vice President’s Deputy Chief of Sta ff as an ade quate substitution for the Vice Presid ent’s Chief of Staff). Defendants here inc lude two former USAID Deputy Administrators (one former Acting De puty Admini strator, in fact), and on e Acting Administrator of the United States DOGE Service. They also include on e Seni or Advisor to the Pres ident, a title which appears to correspond to an entirely inform al role. It is evident on its face that these positions do not qualify for the special protections that case law has afforded to the government’s highest -r anking officers. If plaintiffs may take depositions of officials in Senate-confirmed positions, including Assistant Administrators, Undersecretaries, and

11 Assistant Attorneys General, as well as heads of subca binet agencies, such as the Direc tor of the Office of Thrift Supervision, I fail t o see how any of these defendants can claim that their positions enti tle them to a pr otective ord er. Defendants do not even attempt to sug gest adequate substitutes for their depositions. They provide the names of no other officials who would be better placed to answer plaintiffs’ q uestions, aside from the four officials whom plaintiffs already deposed. Petition for Writ of Mandamus at 30. Bu t as plaintiffs indicate d, and the district c ourt agreed, the disco very process so far has failed to provide evidence addressing “certain key decisions, including the decisio n to shut dow n USAID headquarter s and t o shut do wn the USAID website.” Doe s v. Musk, 2026 WL 295364 at *3 (D. Md. Feb. 4, 2026). Accepting the findings of the distr ict court, defendant s’ halfhearted attempt to propose a substitute is inadequate. III. My colleagues in the majority encourage the plaintiff s to purs ue other discovery avenues b efore requesting to depose t hese particular defen dants. As defendants conceded, however, plain tiffs have already “received substantial discovery.” Petition for Writ of Mandamus at 11. The discovery requests have pursued all the re levant channels — in addition to “extensive written discovery,” comprising more than 2,500 pages of documents, plaintiffs submitted nearly two dozen interroga tories to the S tate De partment, th e Secretary of State, US AID, USDS, and Gleason. Id. at 11 – 12. Plaintiffs have deposed four subordinate members of USAID, including former Acting Adminis trator Jason Gra y. Id. at 11.

12 In light of the subst antial discovery that has already occurred, I would not dictate to the plaintiffs that they must exhaust addition al discovery tools bef ore the district court permits their depositi on. N or wo uld I dicta te to the district court, whose f amiliarity with the facts in this case far outstrips our own, the order in which discovery must proceed. Th is Court is typically he sitant to involve itself in “matters more properly manag ed by trial courts,” of which the d iscovery process is a p rime exa mp le. MDK, Inc. v. Mike’s Train House, Inc., 27 F.3d 11 6, 119 (4th Cir. 1 994). Instead, I would defer to the district court’s determination that there is no alternative means for plaintiffs to secure the information they seek. As the distr ict court explained, defendants have be en ordered sever al times to produce ot her sources of inf ormation about the specific actions related to the shutdown of USAID. In response to plaintiffs’ interrogatories, defend ants “have not responded adequately or at all.” Does v. Musk, 2026 WL 295364 at *3 (D. Md. Feb. 4, 2026). W hen the district court ord ered production of documents related to the challenged actions, defendant s “failed to provide evidence addressing these issu es in relatio n to certain key decisio ns.” Id. The requested information is either available thr ough other me ans or it is not. Defendants can not have it bo th ways. IV. Given the inadequate discovery responses by defendants thus far, I am deeply concerned that grantin g this writ of mandamus frustrates justic e by broadly immunizing government offic ials who have historically been subject to depositions. I am encouraged by the majority’s indication that t his order does not close the d oor on future depositions of

13 these defe ndants. But given the defendants’ failures t o mak e the ext raordinary showings required for a writ of mandamus, I would deny the petitio n today.