*1 No one is happy about the events leading to this motion. Sheryl Walter—currently the General Counsel of the Administrative Office of the U.S. Courts, but previously the director of the State Department's Office of Information Programs and Services (the division tasked with responding to Freedom of Information Act (FOIA) requests)—moves to quash a subpoena compelling her appearance at a deposition authorized by this Court. She advances two arguments: first, she was recently diagnosed with thyroid cancer; and second, “she has little (if any) relevant information to offer.” Mot. Quash 10, ECF No. 105.

With respect and sincere regret for Ms. Walter's predicament, neither argument meets the standard to quash a subpoena. Although Rule 45(d)(3)(A) commands courts to “quash or modify a subpoena that ... subjects a person to undue burden,” this Circuit generally limits that directive to economic burdens, not personal ones. See, e.g., Watts v. S.E.C., 482 F.3d 501, 509 (D.C. Cir. 2007). So too for the three Rule 26 “factors” bearing on “the question of undue burden”:

Id. (citing Fed. R. Civ. P. 26(b)(1)–(2)).

Here, all three factors militate against quashing the subpoena. Ms. Walter's testimony is neither cumulative, duplicative, nor obtainable from any other source. Judicial Watch wants to ask Ms. Walter about emails she wrote, including a 2012 email chain requesting information about a FOIA request from government watchdog Citizens for Responsibility and Ethics in Washington (CREW) “on the topic of personal use of email by senior officials” so she could respond to the White House's “quick turnaround” question concerning the request, which portended “particular sensitivities.” ECF No. 110-1; see also ECF No. 110-2. A 2013 email chain indicates Ms. Walter “t[ook] the lead and coordinat[ed]” State's response to CREW's request. ECF No. 110-2. And another 2013 email sheds light on that leadership: since the request didn't “specify[ ] ‘personal’ email accounts” like the one Hillary Clinton used, Ms. Walter “interpret[ed the request] as [pertaining to] official accounts only.” Pl.’s Opp'n (quoting Document 898), ECF No. 110. Moreover, Ms. Walter's testimony goes directly to whether State's efforts to settle this case amounted to bad faith: her emails potentially suggest State knew about Hillary Clinton's personal email use in early 2013. And if that's true, State likely recognized its search in this case was deficient but tried settling this case regardless.

*2 Even still, government counsel cites two out-of-circuit district court cases from the 1990s for the proposition that illness justifies quashing subpoenas. But if anything, those cases support Judicial Watch. Take In re Tutu Water Wells Contamination CERCLA Litigation, where a judge quashed a subpoena for “a man with health problems in his 70's,” only because “previous depositions ha[d] been taken on numerous occasions” and re-deposing him again would “risk[ his] life.” 189 F.R.D. 153, 157 (D.V.I. 1999) (“[I]n this case, where depositions have already occurred, this Court could not in good conscience subject [the deponent] to a very real risk of danger.”). So too in United States v. Mariana, where a judge found a “terminally ill” deponent “met the heavy burden” to justify a quashing a subpoena only after multiple doctors testified that he was “dangling by a thread” and that “the stress of a deposition could trigger an irreversible cataclysmic reaction that would cost [him] his life.” 178 F.R.D. 447, 449-51 (M.D. Pa. 1998). In contrast, Ms. Walter has never been deposed, and the record lacks any testimony from a doctor declaring quashing the subpoena is a medical necessity.

Government counsel makes much of Judicial Watch's shifting position on the need to depose Ms. Walter. True enough, Judicial Watch initially volunteered forgoing her deposition in lieu of interrogatories upon learning of Ms. Walter's cancer diagnosis. And after State produced new documents revealing Ms. Walter's central role in handling the CREW request, Judicial Watch changed course, opting to depose her in accordance with this Court's prior order. But that reversal has no moment. Most obviously, an informal agreement between parties does not formally waive a legal entitlement. And moreover, given the context those newly produced documents provided, the Court cannot say Judicial Watch unreasonably retracted its noblesse oblige.

To be sure, Ms. Walter—a career public servant and sophisticated attorney—already swore she “simply do[es] not remember anything about the processing of [CREW's] FOIA request.” Walter Decl. ¶ 35, ECF No. 105-1. But that position poorly fits the rest of the record, which shows Ms. Walter quarterbacking a remarkably intragovernmental response to a FOIA request she passes off as unremarkable. A deposition will uniquely enable Judicial Watch to explore this tension while allowing Ms. Walter to disclaim any inconsistency.

Finally, the Court notes Judicial Watch promises “every effort possible” to accommodate Ms. Walter's condition, including limiting her deposition to ninety minutes and taking the deposition at a more convenient location. The Court anticipates these and other appropriate accommodations—combined with good faith and empathy on both sides—will result in a smooth deposition giving Judicial Watch a fair opportunity to examine Ms. Walter while minimizing her discomfort and any disruption to her medical treatment. With that expectation, the Court DENIES Ms. Walter's motion [105] to quash.