Too Important – Court Denies Motion to Compel Deposition of “Apex” Executive of Defendant (CA)


Kormylo v. Forever Resorts, LLC (California)
(trial court disposition)

Plaintiff was injured while swimming at a Nevada Resort owned and operated by the defendant.  The cause of plaintiff’s injuries were disputed, but plaintiff alleged that he was struck by a chase boat operated by an employee of the defendant.  The boat in question was registered to the President and founder of the defendant, but he was not named as a defendant in the case.

Plaintiff sought to take the President’s deposition, arguing that his testimony was required to defeat the defendant’s twelfth affirmative defense under a Nevada maritime Limitation of Liability Act.  Plaintiff contended that the owner of a vessel who fails to adequately train its crew is not entitled to limit liability under the Act, and that the President’s deposition was needed to establish this lack of training and supervision of defendant’s employees.  Defendant refused to permit the deposition, and plaintiff filed a motion to compel.

In response to the motion, defendant asserted that the defendant (and not the President) raised the defense on its own behalf, and that the President’s knowledge (or lack thereof) was “completely irrelevant.”  Defendant also noted that the relevant information could be obtained from lower level employees, such that it was improper to seek to depose the President who was “an official at the highest level or ‘apex’ of corporate management.”  As of the time of the motion, the plaintiff had already taken the depositions of fifteen current and former employees of defendant.  The plaintiff had also scheduled the deposition of the defendants Executive Vice President.  The defendant had additionally submitted a declaration from the Executive vice President stating that the defendant had over seventy properties around the world and that the President had no involvement with boat purchases, maintenance or operations, including the hiring supervision, or training of employees at the subject resort.

The District Court for the Souther District of California noted that although the Federal Rules of Civil Procedure provided for “liberal discovery of ‘any non privileged matter that is relevant to any party’s claim or defense,'” discovery was not without limitations.  The courts have the power to limit “unreasonably cumulative or duplicative” discovery or discovery that “can be obtained from some other source that is more convenient, less burdensome, or less expensive.”  Discovery could also be limited where the burden outweighed the likely benefit.  In looking as the situation, the Court stated:

“Deposition notices directed at executives at the highest levels of corporate management create the potential for harassment and abuse of the discovery process. In scrutinizing requests for so-called ‘apex depositions,’ courts have considered (1) whether the high-level deponent has unique, non-repetitive knowledge relevant to the facts at issue in the case, and (2) whether the party seeking the deposition has exhausted other less burdensome discovery methods, such as interrogatories and deposition notices directed at lower level employees.”

The Court explained that simply claiming a lack of knowledge was not, by itself, sufficient to preclude a deposition.  However, “where the relevant information may be obtained from other sources and where the high level executive’s knowledge of the facts, or lack thereof, is not itself at issue in the case, a deposition of the high level executive may not be warranted.”

Plaintiff submitted no evidence to contradict the defendant’s account of the President’s lack of knowledge.  None of the other extensive discovery pointed to the President’s involvement in any aspect of boat operations at the subject resort.  Ultimately, the Court concluded that although “[c]ourts should not insulate high-level executives from the obligation to submit to deposition where the testimony sought is relevant and non-duplicative,” the President’s deposition was “unlikely to add to the testimony of other witnesses whose knowledge of the facts at issue [was] both more granular and more relevant than [President’s] appears to be.”  The Court, therefore, denied the plaintiff’s motion.


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