United States District Court, N.D. California
ORDER RE: APEX DEPOSITIONS DOCKET NOS. 783, 811,
JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE
seeks to depose certain Google/Alphabet executives. Waymo
insists that no depositions are appropriate.
extraordinary circumstances, it is very unusual for a court
to prohibit the taking of a deposition.” Groupion,
LLC v. Groupon, Inc., No. 11-0870 MEJ, 2012 WL 359699,
at *2 (N.D.Cal. Feb. 2, 2012) (citation omitted). As a
result, a “party seeking to prevent a deposition
carries a heavy burden to show why discovery should be
denied.” Apple Inc. v. Samsung Elecs. Co., 282
F.R.D. 259, 263 (N.D.Cal.2012) (citations omitted). However,
“[w]hen a party seeks the deposition of a high-level
executive (a so-called ‘apex' deposition), courts
have ‘observed that such discovery creates a tremendous
potential for abuse or harassment.'” Apple,
Inc., 282 F.R.D. at 262 (citing Celerity, Inc. v.
Ultra Clean Holding, Inc., No. C 05-4374 MMC (JL), 2007
WL 205067, at *3 (N.D.Cal. Jan. 25, 2007)). Still,
“[w]hen a witness has personal knowledge of facts
relevant to the lawsuit, even a corporate president or CEO is
subject to deposition.” Id. (citation
determining whether to allow an apex deposition, courts
consider (1) whether the deponent has unique first-hand,
non-repetitive knowledge of the facts at issue in the case
and (2) whether the party seeking the deposition has
exhausted other less intrusive discovery methods.”
In re Google Litig., 2011 WL 4985279, at *2
(citations omitted). The party seeking to take the deposition
need not prove conclusively that the deponent certainly has
unique non-repetitive information; rather, “where a
corporate officer may have any first-hand knowledge of
relevant facts, the deposition should be allowed.”
Grateful Dead Prods. v. Sagan, No. C 06-7727(JW)
PVT, 2007 WL 2155693, at *1 n.5 (N.D.Cal. 2007) (emphasis in
original); see also Powertech Techs., Inc. v.
Tessera, No. C 11-6121 CW, 2013 WL 3884254, at *1
(N.D.Cal. July 26, 2013) (noting that the party seeking the
deposition “was not required to prove that [the
deponent] certainly has [relevant] information”).
the second consideration-less intrusive discovery
methods-these may include interrogatories. Groupion,
LLC, 2012 WL 359669, at *2. Formal
“exhaustion” of other requirements is not
“an absolute requirement; instead, exhaustion of other
discovery methods is an important, but not dispositive,
consideration for a court to take into account in deciding
how to exercise its discretion.” Hunt v.
Continental Cas. Co., No. 13-cv-05966-HSG, 2015 WL
1518067, at *2 (N.D. Cal. Apr. 3, 2015). Even when the apex
doctrine is at issue, however, “the burden remains on
the party” seeking to avoid the deposition. See
Hunt, 2015 WL 1518067, at *1 n.1 (disagreeing with
defendant's argument that it was the plaintiff's
burden to establish good cause for an order compelling an
apex deposition, as “cases in this district make clear
that the burden remains on the party seeking a protective
order when the ‘apex doctrine' is asserted as a
basis for limiting discovery” (citations omitted)). A
claimed lack of knowledge, by itself, or the fact that the
apex witness has a busy schedule, are both insufficient bases
to foreclose otherwise proper discovery. Groupion,
LLC, 2012 WL 359699, at *2.
forth in Uber's letter brief, Larry Page has first-hand
non-repetitive knowledge of relevant facts. Further, less
intrusive means, such as interrogatories, are not sufficient.
Waymo's reliance on the Court's earlier ruling is
insufficient. That ruling was based upon the need for limited
discovery related to the preliminary injunction hearing and
was not a ruling that Mr. Page would not be deposed during
the merits discovery. No such limitations are present now.
Further, Waymo states only that it has no current intent to
call Mr. Page as a witness. Thus, it appears Waymo wants to
reserve the right to call him as a witness (to perhaps
contradict what Mr. Kalanick says about their conversations)
and yet shield him from deposition. Defendants may take Mr.
Page's deposition for up to four hours.
does not need to take David Drummond's deposition
regarding why Google did not partner with Uber; that is a
topic on which they are deposing Mr. Page. However, Uber also
seeks his testimony regarding conversations that he had with
Mr. Kalanick and the Court will allow his deposition on that
topic, as well as his knowledge of the Uber/Otto deal. Waymo
may avoid Mr. Drummond's deposition if it stipulates that
Mr. Drummond will not offer testimony on summary judgment or
at trial and thus will not contradict any testimony of Mr.
Kalanick or other Uber officials regarding Mr. Drummond's
statements or knowledge. But unless Waymo is willing to so
stipulate, it is unfair to preclude Mr. Drummond's
deposition. This deposition, too, is limited to four hours.
has not noticed the depositions of any other apex witness and
thus has declined to make any argument as to why additional
depositions are needed. Waymo argues that given that
potential deponents are high-level executives they have
limited availability. The Court notes that Waymo has demanded
that the United States District Court for the Northern
District of California expend enormous resources to resolve
myriad disputes on an expedited basis, on the grounds that
this case is especially important. Given that position, the
Court expects that Waymo's executives could take time out
of their schedules to sit for a deposition, assuming they
have relevant non-repetitive information.
Order disposes of Docket Nos. 783, 811, 827.