United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
an unarmed African-American man, was shot and wounded by
Stockton police officers on February 13, 2013, following a
vehicle stop. The parties have vastly different accounts of
exactly how that shooting came about. Plaintiff sues the
City, the officers involved, and Chief of Police Eric Jones.
noticed the deposition of Chief Jones, and defendants have
filed a Motion for a Protective Order seeking to prevent the
deposition. ECF No. 59. The matter has been referred to the
undersigned by E.D. Cal. R. (“Local Rule”)
move for a protective order under the “apex”
doctrine, arguing that depositions of high-level
“apex” witnesses are disfavored. ECF No. 59-1 at
14-15 ¶ A. They argue that Jones is an apex witnesses
because, as the police chief of Stockton, the nation's
63rd largest city, he is “an extremely busy
person.” Id. They argue that plaintiff has not
met his burden to show that Jones has “unique
knowledge” about the case, and that the information
plaintiff seeks cannot be obtained from other witnesses.
Id. at 16-17 ¶¶ B, C.
argues that this motion is governed by Fed.R.Civ.P. 26(c)
(“Protective Orders”), and that defendants have
failed to meet their burden to show “good cause”
why a protective order should issue. ECF No. 59-1 at 18-19
¶ A. He further argues that Jones has “first-hand
information” relevant to this case, and that he has
already “exhausted” other means of obtaining the
evidence he seeks. Id. at 19-24 ¶¶ B, C.
reasons set forth below, the motion will be
MEET AND CONFER
parties met and conferred by telephone on March 1, 2017, to
no avail. ECF No. 59 1 at 10 (defendants' statement), 12
undisputed that this motion is governed by Fed.R.Civ.P.
A party or any person from whom discovery is sought may move
for a protective order …. The court may, for good
cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
Fed. R. Civ. P. 26(c)(1) (emphasis added). This rule places
the burden on defendants - the moving parties who
seek to avoid the deposition - to show “good
cause” why the deposition should be denied:
Under the liberal discovery principles of the Federal Rules
defendants were required to carry a heavy burden of
showing why discovery was denied. They did not meet this
burden. On remand plaintiff, in the absence of a better
showing, should be permitted to proceed with this deposition.
Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th
Cir. 1975) (emphasis added). “[A] strong showing is
required before a party will be denied entirely the right to
take a deposition.” Id.
good cause to exist, the party seeking protection bears the
burden of showing specific prejudice or harm will result if
no protective order is granted.” Phillips ex rel.
Estates of Byrd v. General Motors Corp., 307 F.3d 1206,
1210 11 (9th Cir. 2002). “Broad allegations of harm,
unsubstantiated by specific examples or articulated
reasoning, do not satisfy the Rule 26(c) test.”
Beckman Industries, Inc. v. Intl. Ins. Co., 966 F.2d
470, 476 (9th Cir. 1992) (internal quotation marks omitted),
cert. denied, 506 U.S. 868 (1992).
“apex” doctrine provides a framework for
considering the Rule 26(c) “good cause”
requirement in cases where, as here, the proposed deponent is
a high-ranking government or corporate
official. The doctrine arises out of courts'
observations that “deposition notices directed at an
official at the highest level or ‘apex' of
corporate management … creates a tremendous potential
for abuse or harassment.” Celerity, Inc. v. Ultra
Clean Holding, Inc., 2007 WL 205067 at *3, 2007 U.S.
Dist. LEXIS 8295 at *8 (N.D. Cal. 2007). The doctrine
presumes that high-level officials delegate lower-level
responsibilities, that they are more likely to be removed
from the everyday activities of the organizations they lead,
and that they are therefore less likely to have unique
personal knowledge of the facts at issue in many lawsuit
against their organizations. At the same time, it is more
likely that others - closer to the action - will have the
information relevant to most lawsuits. Accordingly, the
“apex” doctrine shifts the initial Rule 26(c)
burden from the person resisting discovery to the person
seeking it. See, e.g., Avalos v. Baca, 2006
WL 6220447 at *1, 2006 U.S. Dist. Lexis 79376 at *3 (C.D.
Cal. 2006) (“[h]eads of agencies and other top
government executives are normally not subject to
case, there is no need to resolve who has which burden. Under
either analysis, plaintiff is entitled to take Jones's
deposition. That is because defendants have not met their
burden if a traditional Rule 26(c) analysis is employed,
while plaintiff has met his burden if an “apex”
doctrine analysis is employed.