United States District Court, D. Nebraska
FRANCO RIBEIRO and DEANNA RIBEIRO, as individuals and as next friends and biological parents of Lucas Ribeiro, an infant, Plaintiffs,
BABY TREND, INC., a corporation, MARK SEDLACK, MILLENIUM DEVELOPMENT CORP., INDIANA MILLS & MANUFACTURING INC., LERADO GROUP CO., LTD., LERADO GROUP HOLDING COMPANY, LTD., LERADO ZHONG SHAN INDUSTRIAL CO., LTD., LERADO CHINA LIMITED, LERADO H.K. LIMITED, HOLMBERGS SAFETY SYSTEM HOLDING AB, GNOSJOGRUPPEN AB, HOLMBERGS CHILDSAFETY AB, MAXI MILIAAN B.V., and DOREL INDUSTRIES, INC., Defendants.
Gossett, United States Magistrate Judge.
matter is before the court on Defendants' Joint Motion to
Modify and Expand the Number of Depositions (Filing No.
485); Plaintiffs' motion to compel depositions of
three representatives of Baby Trend, Inc. (“Baby
Trend”) (Filing No. 469); and the related
motion to quash the depositions filed by Defendants Baby
Trend, Mark Sedlack, and Millenium Development Corp.
(collectively, “Defendants”) (Filing No.
Depositions of Denny Tsai, Betty Tsai, and Chip
latest discovery dispute concerns Plaintiffs' request to
take depositions of Denny Tsai, Baby Trend's President;
Betty Tsai, Baby Trend's Chief Financial Officer (CFO),
and Chip Whalen, Baby Trend's former General Manager.
(Filing No. 471-11 at p. 1).Defendants have objected to
any deposition of the Tsais under the “apex
deposition” rule, and objected to all three depositions
because such discovery is unreasonably cumulative,
duplicative, and obtainable from another more convenient
source. (Filing No. 476 at p. 2). Counsel for
Plaintiffs and counsel for Defendants exchanged a series of
emails and letters over several weeks, but were unable to
reach a resolution regarding these depositions.
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). The court must limit discovery
otherwise allowed if “the discovery sought is
unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less
burdensome, or less expensive[.]” Fed. R. Civ. P.
26(b)(2). Additionally, the court may, for good cause,
issue a protective order to prevent or limit discovery to
“protect a party or person from annoyance,
embarrassment, oppression or undue burden or
expense[.]” Fed. R. Civ. P. 26(c)(1).
“Rule 26(c) confers broad discretion on the trial court
to decide when a protective order is appropriate and what
degree of protection is required.” Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 36 (1984). However,
“A motion seeking to prevent the taking of a deposition
is regarded unfavorably by the courts, and it is difficult to
persuade a court to do so.” Raml v. Creighton
Univ., No. 8:08CV419, 2009 WL 3335929, at *2 (D. Neb.
Oct. 15, 2009) (citing Static Control Components, Inc. v.
Darkprint Imaging, 201 F.R.D. 431, 434 (M.D. N.C. 2001).
The apex deposition rule cited by Defendants is “aimed
to prevent the high level official deposition that is sought
simply because he is the CEO or agency head--the top
official, not because of any special knowledge of, or
involvement in, the matter in dispute.” Minter v.
Wells Fargo Bank, N.A., 258 F.R.D. 118, 126 (D. Md.
2009). However, “A witness cannot escape examination by
claiming that he has no knowledge of any relevant facts,
since the party seeking to take the deposition is entitled to
test his lack of knowledge.” Id. (quoting
Minter, 258 F.R.D. at 125.
court finds and concludes the apex deposition rule does not
prohibit the depositions of the Tsais. Plaintiffs have
deposed Baby Trend's Rule 30(b)(6) representative, Brad
Mattarocci. (Filing No. 476 at p. 2). Plaintiffs assert that
Mattarocci testified during his deposition that Denny Tsai
was involved in the production of the car seat at issue in
this case. Plaintiffs state that during Mattarocci's
deposition, he indicated Mr. Tsai knew how Baby Trend's
relationship with Lerado began, signed the agreement with
Lerado and conducted pricing and agreement negotiations with
Lerado, and may have been the only contact person for Lerado
and where the Lerado assembly facility was located. (Filing
No. 470 at p. 5). Mattarocci also testified that Baby Trend
has destroyed all of their accounting and warranty records
relating to the subject car seat model, that it is the
accounting department's responsibility to maintain
contract, certificates of insurance, and indemnity agreements
for Baby Trend, and that Mrs. Tsai is the only individual
from accounting still around to answer questions regarding
that process. (Filing No. Filing No. 471-2 at p.p 29-30).
Although Defendants' arguments regarding the Tsais'
high-level positions and busy schedules are well-taken, the
court finds and concludes that the Tsais are likely to
possess information relevant to the parties' claims and
defenses and discoverable under Rule 26(b)(1).
the court shall deny Defendants' motion to quash to the
extent that it seeks to completely prohibit Plaintiffs from
taking the deposition of the Tsais. However, there is merit
to Defendants' concerns regarding the Tsais'
potentially limited personal knowledge, busy schedules, and
the availability of less burdensome avenues for Plaintiffs to
discover the requested information. In consideration of the
above, the court directs Plaintiffs to first request
information from Mrs. Tsai through narrowly tailored
interrogatories prior to her deposition. See Fed.R.Civ.P.
26(c)(1) (“The court may, for good cause, issue an
order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,
including . . . (C) prescribing a discovery method other than
the one selected by the party seeking discovery.”).
With respect to Mr. Tsai, Plaintiffs assert he may have
relevant information regarding Baby Trend's relationship
with the Lerado defendants. Plaintiffs have not yet deposed
Lerado's Rule 30(b)(6) witness. The court will order
Plaintiffs to depose Lerado's 30(b)(6) witness prior to
taking Mr. Tsai's deposition. See Fed.R.Civ.P. 26(c)(1)
(“The court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including . . . (B)
specifying terms, including time and place . . . for the
disclosure or discovery.”). This procedure is employed
in order for Plaintiffs to complete discovery from those
individuals whom Defendants asserts have more personal
knowledge of the underlying facts of this dispute, and in a
manner that limits Plaintiffs from engaging in duplicative
discovery during the Tsais depositions.
Defendants object to the deposition of Whalen as being
unreasonably cumulative, duplicative, and unduly burdensome.
Whalen is Baby Trend's former general manager and was
involved in testing the car seat model during the design and
manufacturing stages and drafted the agreement with Lerado;
was responsible for drafting all of Baby Trend's
agreements; approved final manual for subject car seat;
directed the content of labels; and handled quality and
compliance for Baby Trend during the relevant time period.
(Filing No. 470 at pp. 5-6). Plaintiffs have demonstrated
Whalen is likely to possess personal knowledge and
information relevant to the parties' claims and defenses,
and Defendants have not presented any unusual circumstances
that would make his deposition any more inconvenient or
burdensome than a typical deposition. Thus, the court finds
Whalen's deposition should not be quashed. The parties
are directed to meet and confer to establish a mutually
convenient time and location to conduct the deposition.
Motion to Expand Number of Depositions
Baby Trend defendants, the Lerado defendants, and defendant
Indiana Mills & Manufacturing, Inc., request an order
expanding the number of depositions they are permitted to
take as a group in this case, from twenty to forty-five,
excluding expert witness depositions. (Filing No. 486 at p.
1). As of the date they filed their reply brief, Defendants
have taken a total of fifteen depositions, including:
Plaintiffs (2); police department personnel who drafted
reports (3); hospital emergency personnel (3); 911
dispatchers (2); two of Lucas Ribeiro's physicians (2);
pre-incident car seat inspection technicians (2); and the
director who facilitated the car seat inspections (1).
Defendants additionally seek to depose: six law enforcement
officers and evidence technicians involved in the
investigation and chain of custody of the car seat; five
individuals present immediately before or after the incident;
and at least fifteen of Lucas Ribeiro's treating
physicians and specialists. (Filing No. 511 at pp. 5-8).
Defendants also wish to depose all of Plaintiff's
designated experts, whom have not yet been disclosed.
on the circumstances of the case and pursuant to the
parties' request in the Rule 26(f) Report (Filing No.
14), the court's initial progression order, dated October
4, 2012, imposed a twenty deposition limitation for the
plaintiffs as a group and the defendants as a group. (Filing
No. 15 at p. 2). At the time, Baby Trend was the only named
defendant. The circumstances of this case have clearly
changed over the last four years since the entry of the
October 4, 2012, order, and numerous defendants have been
added as the case has progressed. The information sought by
the defendants is relevant and discoverable, and given the
complexity of the case and the amount of damages at issue,
the court finds the defendants' joint request is
reasonable. The court finds the defendants have shown good
cause for expanding the number of available depositions from
twenty to forty-five. See Fed.R.Civ.P. 16(b)(4) (providing a
scheduling order may be modified for good cause and with the
the court will again remind the parties of its admonition
that future discovery motions will be carefully scrutinized
and that the court may impose sanctions upon parties who fail
to comply with the good faith and meet and confer
requirements of Fed.R.Civ.P. 37(a)(1) and NECivR 7.1(i).
Accordingly, IT IS ORDERED:
Plaintiffs' Motion to Compel Baby Trend Depositions
(Filing No. 469) and Defendants' Motion to Quash the
Depositions of Betty Tsai, Denny Tsai, and Chip Whalen
(Filing No. 474) are ...