United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge
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.
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.
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
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
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).
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)). 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).
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.
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.
Dave Freeman, Executive Vice President, Operations
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.) ...