United States District Court, S.D. California
ORDER REGARDING JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE [ECF No. 27]
DAVID H. BARTICK, Magistrate Judge.
On July 14, 2015, the parties filed a Joint Motion for Determination of Discovery Dispute regarding the scheduling of three depositions. (ECF No. 27.) Having considered the parties submissions, supporting exhibits, and supplemental documentation, the Court hereby DENIES Defendant's motion to compel, and DENIES in part and GRANTS in part Defendant's motion for a protective order, as set forth below.
In this action, Plaintiff and Counter-Defendant Oakley, Inc. ("Plaintiff") alleges infringement of its "Razor Blade" trade dress, and related claims, against Defendant and Counter-Claimant Neff, Inc. ("Defendant"). On June 4, 2015, Defendant served a Rule 30(b)(6) deposition notice on Plaintiff, and on June 23, 2015, Plaintiff noticed the depositions of JW Neff (Defendant's President) and Shaun Neff (Defendant's CEO). The parties have been unable to cooperatively schedule these depositions, and now seek court intervention.
Specifically, Defendant requests that the Court compel Plaintiff to produce its Rule 30(b)(6) witness for deposition on July 21, 22, or 23, 2015. Defendant states that the deposition was scheduled for July 8, 2015, but was unilaterally cancelled by Plaintiff on July 1, 2015 because the witness had flown to Italy for a business meeting. Defendant also seeks $5, 000 in legal fees associated with preparing for the cancelled deposition. In addition, Defendant moves for a protective order to prevent or delay the depositions of JW Neff and Shaun Neff under the "apex doctrine, " and asks the Court to restrict the parties to five fact depositions and one Rule 30(b)(6) deposition per side. Plaintiff counters that its Rule 30(b)(6) witness is not available for deposition until August 5, 2015, and opposes the other relief requested by Defendant.
1. Defendant's Motion to Compel Deposition of Rule 30(b)(6) Witness
The Court declines to compel Plaintiff to produce its Rule 30(b)(6) witness, Roeya Vaughan for deposition on the dates proposed by Defendant. The Court appreciates Defendant's frustration with Plaintiff's cavalier attitude towards cancelling her July 8, 2015 deposition. However, based on Ms. Vaughan's declaration, the Court finds Plaintiff has shown sufficient justification for why she is not available on July 21, 22, or 23, 2015. ( See ECF No. 29.) The Court finds that postponing the deposition for approximately two weeks, until August 5, 2015, is reasonable, particularly in light of the early stage of this case. Accordingly, the Court denies Defendant's motion to compel the Rule 30(b)(6) deposition to occur on July 21, 22, or 23, 2015. Plaintiff shall make its witness available for deposition on August 5, 2015. The Court further declines Defendant's request for $5, 000 in legal fees.
2. Defendant's Motion for Protective Order
Under Federal Rule of Civil Procedure 26(c), the Court may issue a protective order "to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense." Fed.R.Civ.P. 26(c)(1). The party seeking the protective order bears the burden to demonstrate good cause. Id .; Apple Inc. v. Samsung Electronics Co., Ltd., 282 F.R.D. 259, 262-63 (N.D. Cal. April 4, 2012). To establish good cause, the moving party must make a clear showing of a particular and specific need for the order. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).
Defendant moves for a protective order to postpone the depositions of JW Neff and Shaun Neff under the so called "apex doctrine." Depositions of high-ranking corporate executives are sometimes referred to as apex depositions, and courts have observed that such depositions create "a tremendous potential for abuse or harassment." Apple, 282 F.R.D. at 263. Therefore, courts may exercise their discretion under Rule 26(c) to prohibit or defer apex depositions. When determining whether to allow an apex deposition, courts consider the following: (1) whether the high-ranking deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case; and (2) whether the party requesting the deposition has exhausted other less intrusive discovery methods. Id. at 263; In re National Western Life Ins. Deferred Annuities Litigation, 2011WL 1304587, *1 (S.D. Cal. April 6, 2011). "When a high-level corporate executive lacks unique or superior knowledge of the facts in dispute, courts have found good cause exists to prohibit the deposition. However, when a witness has personal knowledge of facts relevant to the lawsuit, even a corporate president or CEO is subject to deposition. Generally, a claimed lack of knowledge on behalf of the deponent does not alone provide sufficient grounds for a protective order." Webside Story, Inc. v. NetRatings, Inc., 2007 WL 1120567, *2 (S.D. Cal. April 6, 2007).
a. Shaun Neff
Defendant identified Shaun Neff in initial disclosures as an individual who likely has discoverable information. (ECF No. 27-4 at 4.) Defendant's basis for requesting a protective order for Shaun Neff is merely that it believes his knowledge may be cumulative of the testimony of other employees. The Court finds this is an insufficient reason alone to justify prohibiting the deposition. Defendant has conceded that Shaun Neff has knowledge of matters relevant to the litigation, including "knowledge of the design and development of the accused products as well as Neff's defenses and counterclaim." ( Id. ) Accordingly, the Court denies Defendant's request ...