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Smith v. City of Stockton

United States District Court, E.D. California

March 24, 2017

CITY OF STOCKTON; et al., Defendants.



         Plaintiff, 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.


         Plaintiff 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”) 302(c)(1).

         II. THE DISPUTE

         Defendants 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.

         Plaintiff 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.

         For the reasons set forth below, the motion will be denied.[1]


         The parties met and conferred by telephone on March 1, 2017, to no avail. ECF No. 59 1 at 10 (defendants' statement), 12 (plaintiff's statement).

         IV. ANALYSIS

         It is undisputed that this motion is governed by Fed.R.Civ.P. 26(c):

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 expense ….

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.

         “For 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).[2]

         The “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.[3] 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 deposition”).

         In this 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.

         A. Annoyance ...

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