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Voelker v. BNSF Railway Co.

United States District Court, D. Montana, Missoula Division

December 19, 2019

MARK VOELKER, Plaintiff,
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.


          Dana L. Christensen, Chief Judge

         Before the Court is Defendant BNSF Railway Company's Motion to Quash Notice of Deposition and for Protective Order concerning Apex Depositions. (Doc. 37.) A hearing on the motion is unnecessary. The Court finds that Plaintiff Mark Voelker has adequate alternative means to procure the discoverable information he seeks. Therefore, Voelker is not entitled to depose senior management-level executives who lack personal knowledge of the events central to this litigation. Thus, it grants BNSF's motion.


         Voelker worked for BNSF for nearly forty years, starting in 1979. (Doc. 16.) He was terminated in the spring of 2017 after sharing information with his current attorneys, who were at that time representing another former BNSF employee in a case regarding that employee's termination by BNSF. Voelker alleges that his termination was unlawful under the Federal Rail Safety Act ("FRSA"), 49 U.S.C. § 20109, because it was in response to him making internal reports and external complaints regarding safety. Voelker claims he suffered damages relating to his discipline and termination that are compensable under the Federal Employers' Liability Act ("FELA") and Montana law.

         Pursuant to the scheduling order filed February 4, 2019, discovery closes on February 28, 2020, but the parties may agree to an extension of the discovery deadline without Court intervention. (Doc. 20.) It is unclear how many depositions have been taken of individuals with first-hand knowledge of the events giving rise to this litigation. At issue here is Voelker's notice of deposition regarding the following seven executives:

Dave Freeman, Executive Vice President, Operations Judy Carter, Vice President, Compliance and Audit Eric Hegi, Assistant Vice President, Claims Matt Igoe, Vice President, Transportation Rob Karov, Vice President, Labor Relations Mark Schulze, Vice President, Safety Peter Dutton, Vice President, Information Technology, BNSF Logistics[1]

         Legal Standard

         "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). In Brewer v. BNSF Railway Co., No CV 14-65-GF-BMM-JCL (Oct. 16, 2015), this Court adopted the framework applied by many other district courts regarding "apex depositions," or depositions of high-level executives with minimal direct involvement in the events giving rise to a case. Apex depositions present a substantial risk of "annoyance, embarrassment, oppression, or undue burden or expense," and they are unlikely to elicit relevant testimony, even under the broad standard of relevance that applies for purposes of discovery. Fed. R. Civ. P 26(b)(1), (c)(1).

         As the Northern District of California has noted, "when a party seeks the deposition of a high-level executive (a so-called 'apex' deposition), courts have 'observed that such discovery creates tremendous potential for abuse or harassment.'" Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (quoting Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004)). "In 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." Id. (quoting In re Google Litig, No. C 08-03172 RMW (PSG), 2011 WL 4985279 (N.D. Cal. Oct. 19, 2011)).[2] Nonetheless, the "party seeking to prevent a deposition carries a heavy burden to show why discovery should be denied," and "it is very unusual for a court to prohibit the taking of a deposition altogether absent extraordinary circumstances." Id. (internal quotation marks and citation omitted).


         The Court finds that BNSF has met its "heavy burden" of showing why the depositions should not be taken absent further factual development. At this stage of litigation, it appears that the high-level executives noticed for deposition are without personal knowledge of Voelker's employment and termination, and Voelker has many other avenues for discovery of the information sought. If, after conducting depositions and completing discovery, Voelker learns that the individuals have unique or personal knowledge of discoverable information, he may try again.

         BNSF has submitted declarations of each of the executives noticed for deposition (save for Peter Dutton, who works for a different company). These affidavits demonstrate: (1) that the noticed individuals do not have personal, direct knowledge of Voelker's termination; and (2) that other, less intrusive methods of discovery remain open to Voelker. The Court considers each of the individuals in turn.

         A. Dave Freeman, Executive Vice President, Operations

         Because Voelker has alleged that Freeman had personal knowledge of Voelker's advocacy for employee safety, Freeman's notice of deposition presents the closest issue in this Order. Voelker argues that Freeman was part of the PEPA ("Policy for Employee Performance Accountability") Review Board that dismissed Voelker and that "Freeman had previously displayed animosity towards Voelker following a series of safety complaints submitted by Voelker." (Doc. 40 at 17.) However, the PEPA Review Board meeting at issue took place approximately two months after Voelker was fired, and it therefore cannot have made the determination to terminate his employment. (Doc. 43-6.) ...

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