Judge will not force Cooper to testify in COVID bar shutdown case

A Superior Court judge will not force former Gov. Roy Cooper to offer sworn testimony in a lawsuit brought by North Carolina bar owners. The bar owners challenge Cooper’s executive orders that forced bars to remain closed during the COVID pandemic.

Judge Edwin Wilson announced his decision from the bench Tuesday morning during a hearing in Raleigh. Wilson denied a motion to compel a deposition from Cooper “without prejudice,” meaning the bar owners could ask again later to compel Cooper’s testimony as the case proceeds. The judge’s ruling also applies to testimony from Mandy Cohen, Cooper’s top health official during the pandemic.

In addition to the motion related to depositions from Cooper and Cohen, the hearing was designed to hammer out a schedule for written discovery in the case.

The case originally filed by the North Carolina Bar and Tavern Association in 2020 is back before a trial judge after the state Supreme Court ruled in August 2025 that bar owners could proceed with their suit.

Bar owners’ lawyers raised concerns during Tuesday’s hearing that the discovery process is likely to drag on for months without answers directly from Cooper. They want to know what factors prompted Cooper to keep bars closed while restaurants, breweries, wineries, country clubs, and other establishments serving alcohol were allowed to reopen earlier during the pandemic.

“Roy Cooper and only Roy Cooper can answer these questions,” lawyer Matthew Vaughn argued.

The bar owners are “floundering in the dark” without that information, added lawyer Bob Orr. “Until we know exactly what the basis of his decision was, we can’t say whether that decision was reasonable.”

Lawyers from the state Department of Justice represent Gov. Josh Stein, who became the official defendant in the case last year when he succeeded Cooper. The same lawyers are representing Cooper and Cohen in the matter of depositions.

It’s more “logical and sensible” to move forward with a traditional discovery schedule, argued Special Deputy Attorney General Michael Bulleri. The motion to compel testimony from Cooper and Cohen stands in “stark defiance” of court rules, Bulleri said.

At one point, Vaughn brought up what he labeled the “elephant in the room.” “The real reason for these delays is politics,” he argued. Cooper is the Democratic candidate for North Carolina’s open US Senate seat this fall. “Politics has no place in this decision,” Vaughn said.

“We are not injecting politics into this,” Bulleri responded.

Wilson explained that the bar owners will have another chance to seek testimony from Cooper and Cohen if they fail to get the information they seek from written discovery requests.

At last count, 31 combinations of bars and bar owners are proceeding with the case.

“[T]he Supreme Court remanded the case back to this Court in order to allow the parties to take discovery on the appropriate factual question whether former Governor Cooper requiring continued closure and greater operational restrictions for many of Plaintiffs’ bars for more than a full year, while allowing the other seven categories of bars to reopen after approximately two months of closure, was reasonably necessary to further a proper governmental purpose,” the bar owners wrote Thursday.

“Former Governor Cooper’s decision to draw a distinction between categories of bars was to be judged based on the information known to the Governor at the time he entered the Executive Orders at issue,” the court filing continued.

“Now, Plaintiffs seek to depose former Governor Cooper, who was the decision-maker and signatory for every one of the Executive Orders at issue in this case, and of former Secretary Cohen, who was ‘designated by the Governor as the technical lead in the COVID-19 emergency response effort,’” the bar owners’ lawyers wrote.

Appearing for depositions would not subject Cooper or Cohen to “undue burden or expense,” the bar owners argued.

“Both were central figures in the exchange of information, discussions, and ultimate decisions to issue the Executive Orders at issue in this case,” according to the court filing. “Their testimony is crucial, and it is reasonable to require that they explain their reasoning behind the decision to single out the Plaintiffs’ bars for continued closure when all other types of bars were allowed to open.”

“Only former Governor Cooper knows how he weighed the various information and materials he considered when coming to the ultimate conclusion to distinguish Plaintiffs’ bars and other types of bars,” the bar owners’ lawyers wrote. “While taking written discovery may help Plaintiffs’ understand what information and materials former Governor Cooper considered, only former Governor Cooper knows what weight he gave to that information and those materials.”

Cohen filed a declaration in the case for the defense. “Secretary Cohen’s declaration makes clear that she served as a key advisor to former Governor Cooper regarding North Carolina’s COVID-19 response, and she inserted herself into this litigation by submitting that declaration,” according to the court filing. “Defendant has offered no explanation as to why Plaintiffs should not be permitted to cross examine a witness that Defendant himself proffered.”

Stein’s lawyers objected to the motion to compel depositions from Cooper and Cohen.

“Despite serving their first sets of written discovery requests just two weeks ago (which included 1097 individual requests), Plaintiffs seek the extreme remedy of immediately compelling the depositions of two former high-level government officials — former Governor Cooper and former NC DHHS Secretary Cohen,” state Justice Department lawyers wrote Thursday. “The Court should deny Plaintiffs’ motion because it violates a basic tenet of Rule 26: that discovery is unreasonable — and should not be allowed — if it could be obtained from a more convenient, less burdensome source.”

“Without any other discovery being completed, Plaintiffs cannot demonstrate that these witnesses have factual information that cannot be obtained through written discovery or by deposing others who were involved with the executive orders at issue,” the court filing continued. “Plaintiffs’ rush to compel these depositions is unnecessary and premature given the current posture of discovery in this matter.”

The bar owners filed a separate document Thursday offering additional information about discovery requests on both sides of the case.

“Defendant’s first set of discovery to Plaintiffs included 15 interrogatories to each Plaintiff and 27 requests for production of documents to each Plaintiff,” the bar owners’ lawyers wrote. “Defendant’s second set of discovery to Plaintiffs included 2 interrogatories and 3 requests for production of documents to each Plaintiff. Like Plaintiffs’ discovery requests, Defendant’s discovery requests require individualized answers.”

“Thus, for the same 31 Plaintiff Groupings, Defendant has served 527 interrogatories and 930 requests for production of documents, a total of 1,457 requests, compared to the 31 Plaintiff Groupings’ service of 1,097 total requests on Defendant,” the court filing continued.

Tuesday’s hearing is likely to include a request from Stein “to drastically limit the number of written discovery requests” the bar owners can make, the plaintiffs’ lawyers wrote. “While Plaintiffs do not oppose some limit on written discovery, they respectfully submit that any such limits should apply equally to Plaintiffs and Defendant. Plaintiffs, collectively, should not be limited to 125 total written discovery requests when Defendant seeks unique responses to over 1,400.”

“To appropriately address the Defendant’s position, each Plaintiff Grouping must be able to take appropriate discovery regarding what information was known or considered by the Governor’s Office regarding their specific bar(s), including determining whether any individual advising former Governor Cooper conducted any individualized assessment to determine whether Plaintiffs’ bars could safely reopen under the same restrictions imposed on other types of bars and understanding what specific attributes or perceived deficiencies of Plaintiffs’ bars the Defendant considered when deciding Plaintiffs’ bars could not reopen under the requirements set forth for other types of bars,” the bar owners’ lawyers wrote.

The case started with more than 200 plaintiffs in 2020. Arguments during a July 7 court hearing indicated the number of plaintiffs had dropped to 52.

An Aug. 7 court filing indicated that 15 of the remaining plaintiffs dismissed all claims in the case voluntarily. The dismissal was “without prejudice,” meaning the claims could be filed again at a later date.

The plaintiffs’ lawyers filed a separate motion that day seeking to drop their representation of another 10 bars or bar owners. A court filing indicated that lawyers had not had contact with any of the targeted clients since April. In at least one case, lawyers had no contact this year with a bar owner plaintiff.

Wilson ended a July hearing by denying bar owners’ request to bifurcate, or split, their case into two parts. The first part would have determined the governor’s liability for financial losses tied to bar shutdowns in 2020 and 2021. The second part would have involved the discovery process for assessing damages.

The bar owners’ lawyers specifically objected to lawyers from the North Carolina Department of Justice “smothering our clients” with requests for information. DOJ lawyers defended the requests as necessary to determine which bar owners have legal standing to take part in the case.

The governor’s lawyer suggested in July that the “mass exodus” of plaintiffs was likely tied to the requests for information during the legal process known as discovery.

“There are a lot of really small businesses,” responded Orr, a former North Carolina Supreme Court justice. “After six years, many of them have given up. They’re throwing in the towel.”

Orr accused DOJ lawyers of “overcomplicating” the case. He reminded Wilson that the state Supreme Court’s decision ordered the trial court to determine whether Cooper made a reasonable decision when he ordered private bars to remain closed in 2020 as other businesses reopened.

“The burden of proving the reasonableness of the decision is on the governor,” Orr said. “The burden is not on the plaintiffs.”

Mike Tadych, also representing the bar owners, accused Cooper of performing “Kabuki theater” in 2020 when he forced private bars to remain closed while allowing restaurants, breweries, wineries, country clubs, and every other type of establishment with an alcohol license to reopen.

The state Supreme Court ruled in August 2025 that bar owners in two cases could move forward with their claims. Both lawsuits challenged Cooper’s executive orders shutting businesses down during the COVID pandemic. The Howell v. Cooper case ended in June after a successful mediation.

Bar owners in the NCBATA case filed a court document in June suggesting that state government lawyers representing Cooper are trying to shield him from providing testimony under oath as he runs for Senate.

The plaintiffs filed a “motion to compel” on June 25. It targeted Cooper and Cohen, his secretary for the Department of Health and Human Services. A court filing the following day criticized lawyers representing Cooper and Cohen for seeking a delay in dealing with the motion. The same lawyers represent Stein, who became the official defendant in the lawsuit when he succeeded Cooper last year.

“It is not clear from defense counsel’s informal motion to continue whether the request is submitted on behalf of the Defendant, one or both of the nonparty witnesses, or some combination of those jointly represented parties,” the bar owners’ lawyers wrote Friday. “However, it is apparent that the request is not motivated by a legitimate need for additional time to respond.”

“Rather, it appears to be more likely motivated by a desire to shield former Governor Cooper, who is currently running for elected office, and perhaps also former Secretary Cohen, from having to provide testimony under oath regarding the reasons for their decision to deprive the Plaintiffs of their means to make a living for over a year, while allowing many similarly situated businesses to open,” the court filing continued.

“This case has already been pending for over six years,” the bar owners’ lawyers added. “Delaying the hearing on Plaintiffs’ Motion to Compel, which would in turn delay the depositions of former Gov. Cooper and former Sec. Cohen, would prejudice the Plaintiffs by even further delaying the ultimate resolution of this case.”

The motion to compel 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.

The state Supreme Court split, 5-2, in ruling last year that bar owners working with NCBATA 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.”

“Judge will not force Cooper to testify in COVID bar shutdown case” was originally published on www.carolinajournal.com.