Motion to Compel Appearance at Deposition
Plaintiff asserts that it properly noticed depositions of Human Bees’ PMQ and fact witnesses Rita Waara and Dr. Goyal, but “more than three months later Human Bees has not produced a single witness for deposition or even offered a specific date for any deponent.”
From a review of the correspondence, it does not appear that Court intervention is truly necessary regarding witness Waara or the Human Bees PMQ, other than to address unresolved scheduling. (See Levitskaia Decl., Exh. 1.) To date Human Bees has neither provided specific dates for these depositions nor sought to quash any notices or secure any protective orders. Efforts to schedule these depositions began over 3 months ago. Jabil’s remaining ESI production was served 50 days ago.3 This lawsuit was filed in 2023, and trial is now five months away. It is certainly time for the parties to redouble their good faith commitment to diligent, cooperative, and focused trial preparation.
Accordingly, the Court orders that witness Rita Waara and Human Bees’ Person Most Qualified appear and testify at a deposition at a mutually agreed upon date and time and by mutually agreed upon means, but in no event later than July 1, 2026. Six weeks should be more than sufficient for Human Bees to produce these witnesses.
As for Dr. Goyal, it is apparent from the briefing on this motion that Human Bees does not intend to produce Dr. Goyal. Human Bees has not previously sought a protective order as to Dr. Goyal, but it nonetheless seeks a determination that Dr. Goyal does not need to be produced, invoking the “apex doctrine.” For the sake of economy and guidance, the Court will address that issue as follows:
The “apex doctrine” protects high-level officers of an organization from depositions when the officer has no first-hand knowledge of the facts of the case or where the officer's testimony would be repetitive. (Liberty Mut. Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.) To depose an officer at the apex of an organization requires “a reasonable indication of the officer's personal knowledge of the case and ... exhaustion of less intrusive discovery methods.” (Id., at p. 1287.) “An exception to the rule exists only when the official has direct personal factual information pertaining to material issues in the action and the deposing party shows the information to be gained from the deposition is not available through any other source.” (Westly v. Superior Court (2004) 125 Cal.App.4th 907, 911
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
From the record before the Court, it is questionable whether Dr. Goyal possesses personal knowledge pertaining to material issues in the action. It is even more questionable whether any such knowledge is unique or superior. Even if these threshold requirements were met, Jabil must still establish such information is not available through any other source. This is a showing Jabil cannot make at this time. Jabil may contend that its inability is the fault of
3 The Court considers any desire on the part of Human Bees to have additional time to review this material to be a luxury, not a right, and not a desire that would motivate the Court to exercise any authority to require the sequencing of discovery under the totality of the circumstances. 17
Human Bees’ delay tactics, but on this point, the Court is not persuaded and is not convinced it would excuse the required showing regardless.
Accordingly, the Court will not compel the deposition of Dr. Goyal at this time. Should Jabil exhaust other avenues, which may include more than merely the deposition testimony of Ms. Waara and Human Bees’ PMQ, and maintain a colorable showing of good cause that Dr. Goyal possesses unique, personal, or superior knowledge, the Court may then allow a noticed deposition to proceed. The Court appreciates that “Jabil has no intention to interfere with Human Bees’ operations, as evidenced by Jabil’s noticing a remote deposition” and is willing to defer Dr.
Goyal’s deposition “to a date certain after the deposition of Rita Waara and Human Bees’ PMQ, or, alternatively, limit the length of the deposition to four hours.” Therefore, subsequent to, at minimum, the depositions of Ms. Waara and Human Bees’ PMQ, if Jabil chooses once again to notice the deposition of Dr. Goyal, the Court will entertain an ex parte application to shorten time to set a hearing on a fully briefed motion for protective order on a more complete record.
The Court declines to impose sanctions. The Court feels this motion was the result of a breakdown in communication during the meet and confer process that created a dichotomy of perspectives between requests for “reasonable accommodations” and undue delay. Ultimately the Court finds substantial justification or other circumstances would render the imposition of sanctions unjust, including the personal unavailability of lead counsel for Human Bees at critical moments during the discovery process.
The Court will prepare the final order.
- oo0oo -
18