FATHINA HOLMES VS. CITY AND COUNTY OF SAN FRANCISCO ET AL

Matter on the Law & Motion/Discovery Calendar for Tuesday, June 03, 2025, Line 9, DEFENDANT CITY AND COUNTY OF SAN FRANCISCO's Motion For Protective Order To Prevent Plaintiff From Deposing Oewd Executive Director Sarah Dennis Phillips. (Part 1 of 2).

Defendant City and County of San Francisco's Motion For Protective Order To Prevent Plaintiff From Deposing OEWD Executive Director Sarah Dennis Phillips is DENIED.

CCSF moves under Code of Civil Procedure section 2025.420(b) which provides that a court, for good cause shown, may make any order that justice requires to protect any party or deponent from "unwarranted annoyance, embarrassment, or oppression, or undue burden and expense."

More specifically, to bar Phillips' deposition, CCSF relies on the government equivalent of the apex doctrine. The apex doctrine bars a party from deposing "a corporate president, or corporate officer at the apex of the corporate hierarchy, absent a reasonable indication of the officer's personal knowledge of the case and absent exhaustion of less intrusive discovery methods." (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1287.)

"[W]hen a plaintiff seeks to depose a corporate president or other official at the highest level of corporate management, and that official moves for a protective order to prohibit the deposition, the trial court should first determine whether the plaintiff has shown good cause that the official has unique or superior personal knowledge of discoverable information. If not, ... the trial court should issue the protective order and first require the plaintiff to obtain the necessary discovery through less-intrusive methods." (Id. at 1289.)

The government version focuses on agency heads and other top government officials: "It is the general rule...that the heads of agencies and other top government executives are normally not subject to depositions." (Nagle v. Superior Court (1994) 28 Cal. App. 4th 1465, 1467-1468 (1994)1467-68; Westly v. Superior Court (2004) 125 Cal.App.4th 907, 910-911 [Attorney General and State Controller could not be deposed even where they were named parties].)

To overcome this rule, the party seeking a deposition must demonstrate that the executive (1) has "direct personal factual information pertaining to material issues in an action," and (2) "the information to be gained from such a deposition is not available through any other source." (Nagle, 28 Cal. App. 4th at 1468, quoting Church of Scientology of Boston v. IRS (D. Mass. 1990) 138 F.R.D. 9, 12; see also Civiletti v. Municipal Court (1981) 116 Cal. App. 3d 105, 110 (1981) [requiring party seeking deposition of a high-level official to make a "clear showing" that the testimony is "essential to prevent prejudice or injustice"].)

CCSF here has failed to carry its initial burden. CCSF did not establish that Phillips is an agency head, elected official or high government executive covered by the government version of the apex rule. Phillips is a municipal department head, which is not the same as an agency head as discussed in Nagle and Westly. Certainly, municipal department heads are not immune from discovery by virtue of their title.

And, here, there is no evidence of the size of OEWD or any particulars regarding OEWD's functioning or Phillip's role within it. There is no evidence regarding Phillips' remove from Plaintiff in the office structure or in fact. This showing needed to be made in the moving papers and wasn't.

(Continued to Part 2). =(302/JMQ). | |