ERIN D. STEPHENS, Plaintiff, v. BIG SPRING HERALD, INC. and HPC OF TEXAS, INC., Defendants No. 1:19-CV-123-H United States District Court, N.D. Texas, Abilene Division Filed August 19, 2020 Counsel Danny C. Wash, Wash & Thomas, Michael L. Scanes, Scanes & Routh LLP, Waco, TX, for Plaintiff. Randall L. Rouse, Mary Wahne Baker, Pro Hac Vice, Kenneth R. Matticks, Lisa Kaye Hooper, Pro Hac Vice, Lynch Chappell & Alsup PC, Midland, TX, for Defendants. Hendrix, James Wesley, United States District Judge ORDER *1 Before the Court is the defendants' Motion to Quash and Motion for Protective Order. Dkt. No. 19. Citing Federal Rule of Civil Procedure 26(c) and the apex-deposition rule, the defendants move to quash a Notice of Deposition that Erin Stephens issued to Melanie Walsh, the defendants' president and CEO. Because Stephens has shown a reasonable likelihood that Walsh possesses information that is relevant to Stephens's claims in this lawsuit and that any such information could not be obtained through less-intrusive means, the Court denies the defendants' motion. It is ordered that the deposition of Walsh may proceed. However, the Court limits the remote deposition of Walsh to no more than two hours. Additionally, counsel for Stephens may not inquire about an SEC action or criminal activity involving Walsh's father, David Radler, at Walsh's deposition. 1. Factual and Procedural Background Erin Stephens, a former employee of the Big Spring Herald, filed this employmentdiscrimination lawsuit against the defendants in this Court, and she subsequently filed a First Amended Complaint. Dkt. Nos. 1, 9. In her First Amended Complaint, Stephens alleges that the defendants discriminated against her in violation of the Texas Commission on Human Rights Act and the Americans with Disabilities Act. See Dkt. No. 9 at 10–12. Discovery has taken place over the past several months. On August 17, 2020, Stephens noticed the deposition of Melanie Walsh for August 21, 2020. See Dkt. No. 19-1. Walsh serves as the defendants' president and CEO. See Dkt. No. 19 at 2, 5. The defendants then moved to quash the Notice of Deposition and sought a protective order barring Stephens from deposing Walsh. See id. at 5. The Court ordered Stephens to respond to the defendants' motion, and Stephens filed her response on August 19, 2020. Dkt. No. 21. 2. Legal Standards A. Scope of Discovery and Protective Orders A party may obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). But a district court has an obligation to guard against abusive discovery. Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011). Rule 26(b) “has never been a license to engage in an unwieldy, burdensome, and speculative fishing expedition.” Id. (quoting Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1163 (10th Cir. 2010)). Under Federal Rule of Civil Procedure 26(c), a district court may “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); Oyekwe v. Research Now Grp., Inc., No. 3:19-CV-1085-S-BN, 2020 WL 1064868, at *1 (N.D. Tex. Mar. 4, 2020). The movant bears the burden of showing that a protective order is necessary, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” EEOC v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th Cir. 2017) (internal quotation marks and citations omitted). B. Apex Depositions *2 Where a party seeks to take the deposition of a high-level, or apex, executive, the Fifth Circuit “has recognized the need for first utilizing less-intrusive means before taking such [a] deposition, by way of deposing lesser-ranking employees.” Ross Neely Sys., Inc. v. Navistar, Inc., No. 3:13-CV-1587-M-BN, 2015 WL 12916401, at *1 (N.D. Tex. Apr. 9, 2015) (citing Salter v. Upjohn Co., 593 F.2d 649 (5th Cir. 1979)). “Unless the executive possesses ‘unique personal knowledge’ about the controversy, the court should regulate the discovery process to avoid ‘oppression, inconvenience, and burden’ to the executive and the corporation.” Robinson v. Nexion Health at Terrell, Inc., No. 3:12-CV-03853-L-BK, 2014 WL 12915533, at *2 (N.D. Tex. Apr. 16, 2014) (quoting Comput. Acceleration Corp. v. Microsoft Corp., 9:06-CV-140, 2007 WL 7684605, at *1 (E.D. Tex. 2007)). A district court may act to delay or prevent the taking of an apex deposition where the court finds that the executive lacks information that is relevant to the opposing party's claims or defenses or that the opposing party can obtain the information it seeks through less-intrusive means. See Salter, 593 F.2d at 651. But the court may revisit the appropriateness of the executive's deposition at a later date if the party seeking to depose the executive shows that it “cannot obtain the necessary information through other means of discovery.” Gauthier v. Union Pac. R. Co., No. 1:07-CV-12 (TH/KFG), 2008 WL 2467016, at *4 (E.D. Tex. June 18, 2008). 3. Analysis A. The Court declines to quash the Notice of Deposition. i. Stephens has shown that the deposition of Walsh meets the requirements of Federal Rule of Civil Procedure 26(b). While the defendants argue that Walsh possesses no unique knowledge about Stephens's claims because she was not involved in the day-to-day operations of the Big Spring Herald, see Dkt. No. 19 at 3, Stephens contends that Walsh may have unique knowledge because Rick Nunez, the publisher of the Big Spring Herald, stated in his deposition that he spoke with Walsh about Stephens's termination. See Dkt. No. 21 at 3. Stephens also argues that she should be permitted to depose Walsh regarding whether she received and reviewed a letter that Stephens authored and sent her regarding Stephens's medical condition. See id. at 3–4. Given the liberal standard for relevance under Rule 26(b), the Court agrees with Stephens that she has shown that the deposition of Walsh is “reasonably calculated to lead to the discovery of admissible evidence.” Asplundh Tree Expert, Co. v. Alamo Grp., Inc., No. SA-12-CA-516-DAE, 2013 WL 12126010, at *2 (W.D. Tex. June 10, 2013). Through Nunez's deposition testimony, in which he stated that he spoke with Walsh about Stephens's termination, Stephens has “established [Walsh's] personal involvement in conduct that is relevant to at least some of the issues in this case.” Kimberly-Clark Corp. v. Cont'l Cas. Co., No. CIV.A 3:05-CV-0475-D, 2006 WL 3436064, at *3 (N.D. Tex. Nov. 29, 2006). The Court thus finds that the defendants have not met their burden to show that a protective order is necessary. See BDO USA, 876 F.3d at 698. Accordingly, the Court declines to quash Walsh's deposition. See Kimberly-Clark Corp., 2006 WL 3436064, at *4. Further, the defendants have not shown that a corporate-representative deposition under Rule 30(b)(6) would be an adequate substitute for Walsh's deposition. Courts have sometimes found “that a less intrusive means of discovery must first be employed, such as the deposition of a corporate representative under Federal Rule of Civil Procedure 30(b)(6), before a party is allowed to acquire the testimony of individual officers.” Asplundh, 2013 WL 12126010, at *1 (citing Gauthier v. Union Pacific R. Co., 2008 WL 2467016, at *4 (E.D. Tex. 2008), and Turner v. Novartis Pharm., 2010 WL 5055828, at *3 (E.D. La. 2010)). The plaintiff in Gauthier sought to obtain information regarding a corporate policy, while the plaintiff in Turner noticed the depositions of executives who were not employed by the defendant company at the time of the events that the plaintiff alleged. See 2008 WL 2467016, at *4; 2010 WL 5055828, at *3. *3 Here, however, Stephens is seeking to discover information related to any personal involvement that Walsh may have had in the employment-termination decision. Given Nunez's deposition testimony and the fact that the defendants are relatively small companies, the Court cannot conclude that Walsh does not possess such information. Accordingly, the Court will not require Stephens to take a Rule 30(b)(6) corporate-representative deposition before deposing Walsh. See Ene v. Maxim Healthcare Servs., Inc., No. CV H-09-2453, 2011 WL 13266873, at *1 (S.D. Tex. Nov. 29, 2011) (stating that a party's “preference to present a Rule 30(b)(6) witness of its choice” does not control). ii. The defendants have not shown that the deposition poses an undue burden. In their motion, the defendants argue that “it would be unduly burdensome to Ms. Walsh to provide a deposition” given her responsibilities and schedule as the defendants' CEO. Dkt. No. 19 at 5. The Court does not agree. Even the “highest-ranking official of a global company” must give a deposition where it is reasonable to believe that the chief executive has personal involvement in matters that are relevant to claims and defenses in a pending lawsuit. See Kimberly-Clark Corp., 2006 WL 3436064, at *4. Additionally, the Court can require “measures to protect [Walsh] that are less drastic than quashing the entire deposition.” Id. As explained below, the Court will order such measures. The Court finds that a remote deposition of limited duration and scope will not unduly burden Walsh or the defendants. B. The length and subject matter of the deposition shall be limited. Counsel for Stephens has represented to the Court that the deposition of Walsh “should not last over a couple of hours, at the most.” Dkt. No. 21 at 5. The Court believes that holding counsel to his representation will limit the burden that the deposition imposes on Walsh and the defendants. Accordingly, the Court orders that the deposition shall last no more than two hours. Additionally, the defendants have preemptively objected to any line of questioning about any misconduct that Walsh's father, David Radler, may have committed. Dkt. No. 19 at 4. The defendants argue that such questions are irrelevant to this case and designed to harass the defendants' witnesses. Id. In response, Stephens's counsel represents that he does not intend to ask any questions about Radler at Walsh's deposition. See Dkt. 21 at 5 n.1. The Court, agreeing with the defendants that Radler's misconduct appears to be irrelevant to this case, orders that Stephens's counsel shall not ask Walsh any questions regarding the SEC action or criminal activity in which Radler was involved. 4. Conclusion Finding that Walsh may possess information that is relevant to Stephens's claims and that a Rule 30(b)(6) corporate-representative deposition would not be an adequate substitute for the deposition of Walsh, the Court declines to quash the Notice of Deposition that Stephens issued to Walsh. The defendants' motion, Dkt. No. 19, is therefore denied. However, the Court limits the duration of Walsh's deposition to no more than two hours. Additionally, counsel for Stephens shall not ask Walsh anything about the SEC action or criminal activity in which David Radler was involved. So ordered on August 19, 2020.