Yes, a deposition is required for former North Carolina Gov. Roy Cooper in the ongoing lawsuit filed by bar owners challenging the state’s COVID-19 closure orders. Plaintiffs seeking damages over government-mandated shutdowns have filed a motion to compel depositions from Cooper and former Health and Human Services Secretary Mandy Cohen, and a Superior Court judge is scheduled to hear arguments on the matter at a July 7 hearing.
The case represents one of the most significant challenges to pandemic executive orders in the state, with bar owners arguing they suffered irreparable economic harm from the closure directives. The litigation has been pending for over six years, making this deposition request a critical turning point in discovery. Bar owners are asking Judge Edwin Wilson to order the depositions to proceed within 45 days of the motion filing. The defense has opposed the deposition request, arguing that conversations between Cooper and Cohen regarding executive orders may be protected by attorney-client privilege and deliberative process privilege—a legal claim designed to shield high-level government decision-making from public scrutiny.
Table of Contents
- When Can Courts Compel Depositions from Government Officials?
- Attorney-Client Privilege and Deliberative Process Privilege Claims
- The July 7 Hearing and the 45-Day Timeline
- Why Depositions Matter in Cases Pending Over Six Years
- The Challenge of Balancing Privilege with Public Accountability
- What Will Depositions Reveal About the Closure Decision Process?
- The Procedural Path Forward and Expected Timeline
When Can Courts Compel Depositions from Government Officials?
A motion to compel deposition is filed when one party believes the opposing side is improperly refusing to provide testimony. Courts generally have broad authority to require witnesses to provide depositions in civil litigation, including government officials, unless specific legal privileges apply. The bar owners argue that Cooper and Cohen have essential knowledge about the decision-making process behind the shutdown orders and that this testimony is not shielded by privilege. For example, if a business sued a city agency over permit denial and the agency refused to produce testimony from the decision-maker, the business could file a motion to compel, and the court would likely grant it unless the testimony involved attorney-client communications or similar protected discussions.
In the pandemic closure cases, plaintiffs contend that the “why” behind the closure decisions—market analysis, economic data, scientific justification—falls outside privilege protections and should be discoverable. The burden shifts once a privilege claim is raised. Rather than the plaintiff proving why testimony should be compelled, the defendant must demonstrate why the testimony qualifies for protection. Courts look at whether the communications were made for purposes of obtaining legal advice and whether they occurred in confidence.
Attorney-Client Privilege and Deliberative Process Privilege Claims
The defense’s opposition to depositions hinges on two overlapping legal concepts: attorney-client privilege, which protects communications between a client and attorney for purposes of obtaining legal advice, and deliberative process privilege, which shields the candid deliberations of government officials as they weigh policy options. These privileges are designed to encourage frank discussion and protect the confidentiality of decision-making at the highest levels of government. However, these privileges have significant limitations. They do not protect the underlying facts or the final decisions reached—only the advice sought and the thinking process.
If Cooper and Cohen discussed the scientific evidence for closures, the economic projections, or the timeline of reopening, those factual discussions might not be privileged even if they occurred with counsel present. Courts frequently distinguish between asking “what did you decide and why” (generally discoverable) versus “what advice did your lawyer give you” (privileged). A critical warning for government defendants: using privilege claims too broadly can backfire. Courts increasingly scrutinize overly expansive privilege assertions, especially in cases involving government action affecting public rights. Some judges have found that deliberative process privilege weakens when the government action itself is under direct challenge, since the public has an interest in understanding why the government acted.
The July 7 Hearing and the 45-Day Timeline
The bar owners are scheduled to present their motion to compel at a hearing on July 7, where Judge Wilson will hear arguments from both sides. The plaintiffs are requesting that depositions be ordered within 45 days of the motion’s filing, a relatively aggressive timeline given that this case has already consumed six years of litigation. If the judge grants the motion, Cooper and Cohen would need to make themselves available for sworn testimony within that window. The timing of the hearing is significant.
Former Gov. Cooper is currently running for North Carolina’s open U.S. Senate seat, which means deposition testimony—whether public or sealed—could occur during a high-profile campaign. This creates scheduling complications for his legal team and potential political considerations, though such matters typically do not influence judges’ decisions on discovery motions. The 45-day window reflects the plaintiffs’ understanding that delays in this case have already been substantial, and they are pushing for expedited discovery.
Why Depositions Matter in Cases Pending Over Six Years
After six years of litigation, a deposition of key decision-makers like Cooper and Cohen represents a major step forward in discovery for the plaintiffs. In long-pending cases, depositions often come near the end of the discovery process, after documents have been exchanged and interrogatories answered. By the time a party takes a deposition of a high-level government official, the questioning is typically targeted and fact-specific. The extended timeline of this case means that memories fade, documents accumulate, and the original decision-makers may no longer be in office (as is the case with both Cooper and Cohen).
Depositions taken now will preserve their testimony while the events are still within living memory but before critical details are lost. In comparison, a case resolved within two years often sees depositions taken while officials still hold office and can be more readily compelled to appear. The bar owners will use depositions to lock in testimony about what information was available when closure decisions were made, what alternatives were considered, and what economic data was reviewed. This testimony can either support or undermine their damages claims depending on what Cooper and Cohen actually testify to regarding the necessity and proportionality of the closures.
The Challenge of Balancing Privilege with Public Accountability
Government officials, unlike private business executives, operate under a heightened public accountability standard. Courts wrestle with how to apply traditional privilege doctrines in cases where the government’s own actions are challenged. The deliberative process privilege, in particular, was designed to protect candid internal discussions, but critics argue it can be weaponized to shield government malfeasance from scrutiny. North Carolina courts, like most jurisdictions, recognize deliberative process privilege but require the government to demonstrate that disclosure would actually chill decision-making.
If the state merely asserts privilege without explaining how a deposition would harm the deliberative process, courts frequently reject the claim. The bar owners will likely argue that disclosing why the governor closed bars is essential to their claim and that no legitimate policy-making chilling effect occurs from such testimony six years after the fact. A significant limitation of privilege claims in pandemic litigation: courts have been skeptical of broad assertions that discussions about public health emergencies deserve complete protection. Some judges have held that when government actions affecting fundamental economic rights are challenged, the privilege gives way to discovery needs. The outcome of the July 7 hearing may turn on whether Judge Wilson sees the closure decisions as routine policy deliberations or as extraordinary actions warranting closer judicial scrutiny.
What Will Depositions Reveal About the Closure Decision Process?
If the depositions are ordered, the bar owners’ attorneys will question Cooper and Cohen about the specific factual bases for the closures. They will ask about meetings held, data reviewed, recommendations from health officials, and input from business advisors. They may also probe whether economic impact was considered, what metrics triggered reopenings, and whether there were off-the-record discussions about the closure’s burdens on the hospitality industry.
Depositions in pandemic closure cases have in other jurisdictions elicited testimony about the scientific consensus at the time, the evolution of closure policies as new information emerged, and the input of various stakeholders. In some cases, deposition testimony has revealed communications that defendants later regretted, such as emails or texts showing different justifications for closures than what was publicly stated. The bar owners’ legal team will be looking for any inconsistencies between public statements about the closures and private discussions about their rationale.
The Procedural Path Forward and Expected Timeline
After Judge Wilson’s July 7 ruling, the next steps depend on whether he grants or denies the motion to compel. If he grants it, Cooper and Cohen’s attorneys will likely file a notice of when their clients are available, and depositions will be scheduled. If he denies it, the bar owners will lose this avenue of discovery, though they may appeal or seek other witnesses who are not government officials and thus not entitled to privilege protection.
The bar owners have six years of litigation behind them and appear to be pushing toward resolution or trial preparation. Depositions of high-level decision-makers typically occur in the months leading up to trial or settlement negotiations, so this development suggests the case may be approaching a critical juncture. The outcome of this deposition dispute will significantly affect both sides’ litigation strategy and their assessment of trial risk.