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Charles P. Haggarty and Gina M. Haggarty, On Behalf of v. Wells Fargo Bank

August 24, 2012

CHARLES P. HAGGARTY AND GINA M. HAGGARTY, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
WELLS FARGO BANK, N.A.,
DEFENDANT.



The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge

United States District Court Northern District of California

ORDER DENYING DEFENDANT'S MOTION FOR A PROTECTIVE ORDER RE: FRANKLIN CODEL AND ALLOWING DEFENDANT TO DEPOSE JAMES HAGGARTY (Dkt. Nos. 103, 109)

Now pending before the Court are Defendant's motion for a protective order to prevent Plaintiffs from deposing Franklin Codel, executive vice president and CFO of national consumer 23 lending for Defendant, and a joint letter from the parties regarding the deposition of James 24 Haggarty ("James"), the brother of Plaintiff Charles Haggarty. (Dkt. Nos. 103, 109.) Plaintiffs 25 wish to depose Mr. Codel about the COFI index. Defendant seeks to depose James about a 26 conversation regarding Plaintiffs' COFI note that Plaintiff cannot fully recall. After reviewing 27 the pleadings submitted by the parties, and with the benefit of oral argument on August 24, 28 2012, the Court shall allow Plaintiffs to depose Mr. Codel and Defendant to depose James as 2 outlined below. 3

DISCUSSION

Federal Rule of Civil Procedure 26 "states that, in general, any matter relevant to a claim 5 or defense is discoverable." Rivera v. NIBCO, Inc. , 364 F.3d 1057, 1063 (9th Cir. 2004). Under 6 Federal Rule of Civil Procedure 26(c)(1),"[t]he court may, for good cause, issue an order to 7 protect a party or person from annoyance, embarrassment, oppression, or undue burden or 8 expense." The party seeking the protective order must show that "harm or prejudice . . . will 9 result from the discovery." Rivera , 364 F.3d at 1063. This burden is not met by "relying on 10 conclusory statements;" instead, the party must articulate "a particular and specific need for a 11 protective order." Koh v. S.C. Johnson & Son, Inc. , 2011 WL 940227 *2 (N.D. Cal. Feb. 18, 2011). 12

Even when good cause for a protective order is demonstrated, "a court should balance the interests in allowing discovery against the relative burdens that would be imposed." Id. 14

"Absent extraordinary circumstances, it is very unusual for a court to prohibit the taking of a 15 deposition." In re Google Litigation , 2011 WL 4985279 *2 (N.D. Cal. Oct. 19, 2011). 16

A.Franklin Codel

Plaintiffs seek to depose Mr. Codel regarding his knowledge and decision-making (or 18 lack thereof) regarding the COFI index. In particular, Plaintiffs contend that Defendant's 19 document production and privilege log demonstrate that Mr. Codel "was actively involved in 20 the review and monitoring of the COFI index," and as a result should have testimony regarding 21

Defendant's "knowledge of the impact on COFI when it decided to withdraw Wachovia from 22 the 11th district" and "the impact on COFI" due to the withdrawal. (Dkt. No. 100 at 6.) 23

Defendant claims that Mr. Codel is an "apex employee" and thus should not be deposed. (Dkt. 24 No. 100 at 5.) 25 26 the court can limit the discovery after considering "(1) whether the deponent has unique first-27 hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party 28 seeking the deposition has exhausted other less intrusive discovery methods." In re Google

When a party seeks to depose "a high-level executive (a so-called 'apex' deposition),"

Litigation , 2011 WL 4985279 at *2. A proposed deponent's status as "a busy, high-ranking 2 executive" is not itself sufficient to justify a protective order. Hardin v. Wal-Mart Stores, Inc. , 3 2011 WL 6758857 *2 (E.D. Cal. Dec. 22, 2011). 4

5 here. First, Mr. Codel has potentially unique relevant knowledge. Defendant does not deny that 6

The Court finds that an order precluding the deposition of Mr. Codel is not warranted

Mr. Codel was actively involved in monitoring the COFI index and was involved in COFI 7 discussions around the time it increased 66 percent; instead, it relies on the testimony of other 8 lower-level employees to the effect that Mr. Codel had "broad responsibilities." Significantly, 9 one of these employees actually testified that he ...


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