Bar owners seek depositions from Cooper, Cohen in COVID shutdown suit

North Carolina bar owners who are suing over government-mandated shutdowns during the COVID-19 pandemic want to hear from former Gov. Roy Cooper and his top health official.

The bar owners are asking Superior Court Judge Edwin Wilson to force Cooper and former state Health and Human Services Secretary Mandy Cohen to give depositions in the case. The plaintiffs filed a “motion to compel” Thursday.

The request arrives as Cooper is running for North Carolina’s open US Senate seat.

Bar owners led by the North Carolina Bar and Tavern Association sued Cooper in June 2020. They challenged his executive orders forcing private bars to remain closed during the pandemic as other business reopened, including restaurants and other businesses with bars.

A trial judge dismissed the suit, but the North Carolina Supreme Court ruled in 2025 that bar owners could pursue their claims that the government-mandated shutdowns violated their state constitutional rights.

Thursday’s motion recapped Cooper’s role in the dispute.

“On 17 March 2020  — St. Patrick’s Day, typically the busiest day of the year for bars — Gov. Coooper issued Executive Order 118,” the court filing explained. “This order allowed limited drive-through, carry-out, and delivery operations of certain ‘permitted food establishments,’ but required the closure of Plaintiffs’ bars entirely.”

On May 20, 2020, a new Cooper executive order “permitted seven of the eight types of bars in North Carolina to re-open pursuant to guidelines,” according to the motion. “The plaintiffs were of the eighth type of bar, so they were required to remain closed.”

Eight days later, Cooper said in a media briefing “his decision to exclude Plaintiffs’ bars from Phase 2 re-opening was based on ‘data and science’ and ‘daily briefings from doctors and healthcare experts,’” the motion added.

The following day — May 29, 2020 — lawyers working the plaintiffs requested public records related to the “data and science” and the briefings. The governor “did not provide any records responsive to the request” until September 2020. “In the meantime, Gov. Cooper kept most of Plaintiffs’ bars closed in their entirety,” the motion explained.

“From 17 March 2020 through 14 May 2021 Gov. Cooper’s Executive Orders prohibited Plaintiffs’ bars from operating either entirely or on any reasonably profitable basis,” according to the motion. “The other seven types are bars were permitted to reopen and survive.”

With the case back at the trial court level this year, the bar owners issued deposition subpoenas for Cooper and Cohen on March 17. Lawyers representing Cooper, Cohen, and current Gov. Josh Stein took issue with the subpoenas.

They “did not allow a reasonable time for compliance, because the witnesses would need significant time to refresh their recollections and were not available on the designated dates” in April, according to the court filing.

“The subpoenas were unreasonable and oppressive because the deponents were ‘executives,’ who may only be deposed if they have ‘unique or special knowledge of the facts at issue’ and other less burdensome means have been exhausted,” the defendants’ lawyers argued. The subpoenas also “had not been properly served.”

The bar owners’ lawyers tried again for depositions on May 26-27. Lawyers for Cooper and Cohen responded with a letter repeating their earlier objections. The letter also argued that “[d]iscussions that Governor Cooper and Dr. Cohen may have engaged in regarding the issuance of the executive orders may be protected by the attorney-client privilege and/or deliberative process privileges.”

The defense letter “closed by inviting discussion of a resolution of the matter that would not involve former Gov. Cooper and Sec. Cohen appearing for depositions,” according to the bar owners’ motion.

Now the plaintiffs are asking Wilson to order depositions from Cooper and Cohen within 45 days.

The state Supreme Court split, 5-2, in ruling last year that bar owners could proceed with their case.

“According to the trial court, Cooper’s executive orders restricted full operation of plaintiffs’ establishments for over 400 days while permitting other businesses to reopen,” Justice Phil Berger Jr. wrote for the majority. “Plaintiffs argue that the closure and differing treatment violated constitutional and statutory guarantees. Governor Cooper contends that the measures were based on science and data and were necessary responses to an ongoing emergency.

“But even in a declared emergency, the powers of those who act on behalf of the people have limits, and the citizens of this state rejected ‘because I said so’ governance long ago,” Berger added. “However well-intentioned government actors may be, they are constrained by the enduring commands of the Constitution; and constitutional guarantees cannot be suspended in this state by executive fiat.”

Berger cited the 2024 Kinsley v. Ace Speedway case, in which “we unanimously established a workable Fruits of Labor test.”

The high court tasked a trial judge with addressing the “fruits of labor” claims. The Supreme Court rejected other pieces of the case dealing with equal protection claims and alleged violations of the Emergency Management Act and Public Records Act.

Justice Allison Riggs wrote for the two dissenting Democrats.

“The Corum claim of the North Carolina Bar and Tavern Association (the Association) under the Fruits of Their Own Labor Clause should be barred on the basis of sovereign immunity because the members of the Association have an adequate alternate remedy under the law, a claim for compensation under the North Carolina Emergency Management Act,” Riggs wrote. “Thus, I would conclude that the trial court properly entered judgment in favor of the Governor on his motion to dismiss the Fruits of Their Own Labor claim.

“[T]he Association has not met its burden of forecasting evidence that (1) there was not a ‘proper government purpose for the [state action]’; or (2) the ‘means chosen to effect that purpose’ were not ‘reasonable,’” Riggs added. “Although the Association claimed otherwise in its complaint, it put on no competent evidence in seeking summary judgment that the Governor’s stated purpose for entering Executive Order 141 — slowing the spread of COVID-19 to save lives — was an improper purpose or that the Governor’s actual purpose was something different.”

“Bar owners seek depositions from Cooper, Cohen in COVID shutdown suit” was originally published on www.carolinajournal.com.