JOSEPH GRECO et al., Plaintiffs, v. NATIONAL FOOTBALL LEAGUE, Defendant Case No. 3:13-CV-1005-M-BK United States District Court, N.D. Texas, Dallas Division Filed February 05, 2015 Counsel Christopher S. Ayres, Ayres Law Office PC, Dallas, TX, Ahmed Ibrahim, Jason M. Frank, Michael J. Avenatti, Eagan Avenatti LLP, Newport Beach, CA, R. Jack Ayres, Jr., Law Offices of R. Jack Ayres Jr., Addison, TX, for Plaintiffs Joseph Greco, Jules Brodsky, Todd J. Christenson, William Dickie, David Aiello, Tracy Albaugh, Donald Albaugh, Nassaval Anderson, Agi Bako, Todd Baraniak, Martha Barlow, Terrence Battist, Richard Bazzy, Gordon R. Behling, Brandon Bernick, Albert S. Bier, Dennis Bill, Nicole Blasingame, Thomas Bloch, II, Bernard B. Booth, Bart Boren, Max Brourman, Mitchell Brourman, Andrea Brownlee, Zachary S. Bussard, Chad Butterfield, Craig Butterfield, Michael G. Byrne, Brain Calvin, Jose Martin Carballo Garcia, Robert W. Carothers, Luis Castro, Bill Clark, Paul Charles Colavecchi, Mark Coronna, Maryanne Coronna, Michael A. Cromer, James A. Dahl, Joseph R. Dailey, Arianne Z. Dar, Wynne DeArman, Alfred C. Del Mastro, Lisa Dellabella, David DeMarco, John DiJoseph, Mike Dolabi, Elizabeth East, Matthew Edlebeck, Kenneth Edlebeck, James Edwards, Patricia Edwards, Frank E. Farrell, James Fox, Robert Franco, Tami Frankhouser, Tim Gable, Michael Garippa, Myron Gefroh, Mike Gibson, Gilbert Kaye, Leon Goldstein, David Goydan, Silas Graham, Linda Grantin, Patsy Greco, Gerald Grillo, Steve Grohawalski, Pat Gunderson, Stephen Gurgovits, Stephen Gurgovits, Jr., Ronald Haines. Toliver, Renee Harris, United States Magistrate Judge ORDER *1 Pursuant to the District Court's Order of Reference, Doc. 106, this case is before the Court on Non-Party Jerral “Jerry” Wayne Jones' Motion to Quash and for Protective Order, Doc. 103, and Plaintiffs' Request to Strike Jerral “Jerry” Wayne Jones's New Evidence, Doc. 123. Upon consideration, Jones' Motion to Quash and for Protective Order, Doc. 103, is GRANTED, and Plaintiffs' Request to Strike Jerral “Jerry” Wayne Jones's New Evidence, Doc. 123, is DENIED.[1] A. Facts This action arises from the same facts alleged in an earlier-filed parallel action, Simms v. Jones, No. 11-CV-248-M-BK, in which the plaintiffs are represented by the same counsel who represent the Plaintiffs in this case. Doc. 92 at 1. Plaintiffs, ticketholders for Super Bowl XLV, held at Cowboys Stadium on February 6, 2011, asserted the same claims and pled allegations nearly identical to those pleaded by the plaintiffs in Simms. Doc. 92 at 1-2. Specifically, Plaintiffs alleged that the NFL and various entities and individuals associated with the Dallas Cowboys football team misrepresented and failed to disclose to them the actual condition of their game day seating, culminating in some Plaintiffs being relocated to other seats within the stadium, some being delayed access to their seats, some being denied access to stadium seating altogether, and some receiving seats with obstructed views. Doc. 92 at 2. In August 2014, the District Court dismissed with prejudice Plaintiffs' claims against the Dallas Cowboy group of defendants, including Dallas Cowboys owner Jerry Jones. Doc. 92 at 4-5, 9-10, 16. At this juncture, the only remaining claims in the case are against the NFL for breach of contract, fraudulent inducement as to those Plaintiffs who had obstructed views, and a violation of the Texas Deceptive Trade Practices Act as to the fraudulent inducement claim.[2] Doc. 92 at 4, 8, 14. Jones now moves the Court for a protective order and to quash Plaintiffs' subpoena and deposition notice. Doc. 103. B. Parties' Arguments Jones asserts that he lacks any unique or superior personal knowledge relevant to the few remaining claims in this case, and Plaintiffs have failed to articulate what relevant issues they believe Jones has unique knowledge regarding. Doc. 103 at 1, 4-5, 8. Jones contends that as owner, president, and general manager of the Dallas Cowboys Football Club, he is the apex executive of the organization and his involvement in planning Super Bowl XLV exclusively related to high level communications and “big picture” decisions. Doc. 103 at 5. Jones maintains that any relevant information he does have previously was obtained by Plaintiffs from other witnesses who have superior, first-hand knowledge of the events at issue. Doc. 103 at 5-6. Finally, Jones argues that Plaintiffs should first be required to depose a Cowboys corporate representative before deposing him. Doc. 103 at 9. *2 Plaintiffs respond that Jones should be ordered to sit for a deposition for the same reason that the Court previously ordered NFL Commissioner Roger Goodell to do so, namely because Jones has detailed, unique, first-hand knowledge of facts relevant to this lawsuit in that he made numerous statements and took actions relating to the temporary seating and the video replay board before, during, and after the Super Bowl. Doc. 113 at 5-7, 10, 17-18. Additionally, Plaintiffs assert that (1) Jones was the driving force behind an attempt to break the Super Bowl attendance record at all costs, which triggered the sequence of events resulting in the seating problems; and (2) Jones was aware of problems getting the temporary seating installed in time for the game. Doc. 113 at 5, 8-11, 13, 18. Plaintiffs note that they have attempted to depose lower level executives, but their attempts to do so were quashed. Doc. 113 at 18. Additionally, Plaintiffs assert that they already have taken the depositions of the two witnesses affiliated with the Cowboys who were listed on the NFL's most recent initial disclosures, but such witnesses could not explain what Jones meant by some of the things he said nor can they testify to Jones's personal observations or knowledge. Doc. 113 at 18-20. Jones replies that Plaintiffs have not exhausted less burdensome means of obtaining the information they purportedly seek because they have never requested a corporate representative deposition from any Cowboys entity in either this or the Simms matter. Doc. 119 at 4. In fact, Jones asserts, Plaintiffs have only deposed two Cowboys witnesses (Jack Hill and Ann Bahari) and did not even ask them about most of the topics on which they now seek to depose Jones. Doc. 119 at 4. Jones also points to other witnesses whom he claims would have more pertinent, first-hand knowledge such as officials with the City of Arlington police and fire departments. Doc. 119 at 4. Jones further notes that what Goodell said and thought with respect to the Super Bowl may be relevant to the claims against the NFL due to his role as Commissioner, but Jones does not speak or act on behalf of the NFL and, thus, had no control over whether a ticket for any temporary seat would be offered for sale, including whether the ticket would be marked “restricted view,” which is the only basis for the fraud claim in this case. Doc. 119 at 5. Jones also asserts that any statements he made after the Super Bowl accepting responsibility for some fans not getting to watch the game from the seats they purchased or about the video board are irrelevant in large part because all claims against him and the Cowboys entities have been dismissed. Doc. 119 at 6-7. Finally, Jones contends that his desire to break the Super Bowl attendance record is immaterial because he did not control how many seats were made available – the NFL did – and any knowledge he has of seating issues is cumulative of other witness's testimony. Doc. 119 at 7-10. C. Applicable Law Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that unless the court otherwise orders, parties may obtain discovery regarding any relevant, non-privileged matter. The scope of allowable discovery is broad: “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” FED. R. CIV. P. 26(b)(1). Relevant information includes “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). However, the court can issue a protective order for good cause to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense.” FED. R. CIV. P. 26(c)(1). The party seeking a protective order or to quash must demonstrate good cause and the specific need for protection. Williams v. Greenlee, 210 F.R.D. 577, 579 (N.D. Tex. 2002) (Kaplan, M.J.) (citing Landry v. Air Line Pilots Ass'n, 901 F.2d 404, 435 (5th Cir. 1990)). Jones is without doubt a high-level executive of the Cowboys organization. Federal courts permit the depositions of such executives, also known as apex executives, when conduct and knowledge at the highest levels of the corporation are relevant to the case. See, e.g., Kimberly-Clark Corp. v. Cont'l Cas. Co., No. 3:05-CV-0475-D, 2006 WL 3436064, at *2 (N.D. Tex. 2006) (Fitzwater, J.). However, “the Fifth Circuit has recognized the need for first utilizing less-intrusive means before taking an apex deposition, by way of deposing lesser ranking employees.” Schmidt v. Goodyear Tire & Rubber Co., No. 01-CV-272-D.F., 2003 WL 25682109, at *3 (E.D. Tex. 2003) (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. Computer Acceleration Corp. v. Microsoft Corp., No. 06-CV-140, 2007 WL 7684605, at *1 (E.D. Tex. 2007). Should alternative discovery methods prove inadequate, the court may revisit the issue of whether the deposition of a high-ranking executive remains necessary. See Turner v. Novartis Pharmaceuticals, No. 10-CV-0175, 2010 WL 5055828, at *4 (E.D. La. 2010); Gauthier v. Union Pac. R. Co., No. 07-CV-12, 2008 WL 2467016, at *4 (E.D. Tex. 2008). D. Analysis *3 Upon review of the parties' arguments and the law, the Court concludes that Jones does not possesses unique first-hand knowledge of relevant information about the events giving rise to Plaintiffs' remaining claims. Many of the statements Plaintiffs contend they wish to ask Jones about are matters of public knowledge. Moreover, his beliefs and intent underlying such statements are not relevant to the limited issues left in this case, especially now that the Cowboy Defendants have been dismissed, and Plaintiffs only seek to depose Jones as a non-party. See Davis S R Aviation, LLC v. Rolls-Royce Deutschland & Co. KG, No. A-10-CA-367 LY, 2011 WL 5999332, at *5-6 (W.D. Tex. 2011) (denying plaintiffs' motion to compel depositions from non-party as the burden of the depositions exceeded the expected probative value of the testimony). A deposition regarding such matters simply would not advance the case in any significant way such as to warrant deposing a high-ranking executive such as Jones. Moreover, much of the testimony that Plaintiffs seek pertains to issues which they have deposed (or could have deposed) other persons about, namely the temporary seating, the video replay board, Jones's decision to try to break the Super Bowl attendance record, and the management of the temporary seating situation before, during, and after the game. Any further testimony on such matters from an apex executive like Jones is unwarranted as it would be unnecessarily cumulative. Simply put, Plaintiffs have not shown that Jones possesses unique, firsthand relevant knowledge that is unobtainable from another source. Computer Acceleration, 2007 WL 7684605, at *1. The situation presented to the Court in this matter is different than that presented when NFL Commissioner Roger Goodell ultimately was denied a protective order in the Simms matter. The NFL is still a party to this case, and Goodell is the titular head of the NFL and speaks on behalf of that organization. The same cannot be said of Jones. E. Conclusion For the reasons outlined above, Non-Party Jerral “Jerry” Wayne Jones's Motion to Quash and for Protective Order, Doc. 103, is GRANTED, and Plaintiffs' Request to Strike Jerral “Jerry” Wayne Jones's New Evidence, Doc. 123, is DENIED. SO ORDERED on February 4, 2015. Footnotes [1] The Court finds that Jones did not raise new arguments in his reply brief or seek to introduce new evidence, because Plaintiffs' counsel previously had not adequately disclosed to Jones' counsel what unique and superior knowledge Plaintiffs contended Jones had pertinent to this case. Doc. 104 at 6. Thus, there is no basis to strike the evidence Jones submitted in support of his reply brief. [2] The DTPA claim was held in abatement pending Plaintiffs' service of proper notice of the claim on the NFL in compliance with Texas law. Doc. 92 at 14-15.