Opinion
Civil No. 99-1421 (JRT/FLN), Civil No. 99-1422 (JRT/FLN), Civil No. 99-1736 (JRT/FLN)
May 16, 2003
John M. Degnan, MURNANE, CONLIN, WHITE BRANDT, St. Paul, MN., Theresa A. Freeman, NEFF LAW OFFICE, Bloomington, MN., for plaintiff.
Neil H. Abramson, PROSKAUER ROSE LLP, New York, NY., and Thomas C. Kayser, ROBINS, KAPLAN, MILLER CIRESI, Minneapolis, MN., for defendant.
ORDER AFFIRMING ORDER OF MAGISTRATE JUDGE DATED FEBRUARY 12, 2002 AND DENYING DEFENDANT'S LETTER/MOTION TO STRIKE AFFIDAVIT
Plaintiffs have sued defendant Prudential Insurance Company of America ("Prudential") alleging a variety of employment discrimination claims. This matter is now before the Court on appeals of the Order by United States Magistrate Judge Franklin L. Noel dated February 12, 2002. An order of a magistrate judge on nondispositive pretrial matters may be reversed only if it is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). The Court has reviewed the Magistrate Judge's Order and the parties' submissions, and now denies the appeals.
I. Plaintiffs' Appeal of Order Denying Motion to Compel Depositions
The Magistrate Judge denied plaintiffs' motion to compel the depositions of several Prudential executives: Susan Sangillo, Eric Schwimmer, Art Ryan, and Michelle Darling. Plaintiffs appeal that portion of the Order, arguing that these individuals have knowledge that is relevant to plaintiffs' allegations in this case. There is no per se rule barring depositions of top corporate executives. See Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979). However, courts frequently restrict efforts to depose senior executives where the party seeking the deposition can obtain the same information through a less intrusive means, or where the party has not established that the executive has some unique knowledge pertinent to the issues in the case. See id. at 650-51 (affirming district court's holding that defendant's president need not be deposed until plaintiff deposed lower level employees with relevant knowledge, and where president did not have any direct knowledge of the facts); Thomas v. International Business Machines, 48 F.3d 478, 483-84 (10th Cir. 1995) (upholding protective order barring deposition of top executive where lower level employees were available for deposition and where executive lacked personal knowledge of plaintiff's case); Baine v. General Motors Corp., 141 F.R.D. 332, 334-35 (M.D.Ala. 1991) (stating that for a top executive to be deposed, prospective deponent must have unique personal knowledge of the facts of the case).
Plaintiffs cite several cases for the proposition that depositions of top executives are "routinely compelled." (Pl. Br. at 7.) None of these cases, however, applies here because in none of them was the deponent's executive status relevant to the court's decision. See Borase v. M/A Com, Inc., 171 F.R.D. 10 (D.Mass. 1997) (granting motion to compel deposition based on fact that deponent was not acting as corporate attorney); Crossley v. Iroquois Foundry Co., Civ. Nos. A. 91-1657, A. 91-2041, 1992 WL 114956 at **1-3 (E.D.Pa. May 18, 1992) (denying protective order sought on basis of duplicative questions and late notice, where executive had already been deposed once without defendant objecting on basis of executive status); Marchon Eyewear, Inc. v. Marchon, Inc., No. 87-C-5943, 1988 WL 74447 at *2 (N.D.Ill. July 13, 1988) (granting motion to compel second deposition of defendant's president where defendant objected only to extent that new deposition might be duplicative). Thus, the Court must examine whether the Prudential executives personally possess any unique information about the case.
The Court finds that plaintiffs' affidavits do not demonstrate that Sangillo, Schwimmer, Ryan, or Darling possess any information that could not be obtained from lower level employees or other sources, much less that their knowledge of plaintiffs' allegations is "unique." Moreover, plaintiffs have not demonstrated that deposing Sangillo and Schwimmer — Prudential's in-house lawyers — would satisfy the Eighth Circuit's requirement that deposition of in-house counsel must not disclose Prudential's litigation strategy. See Pamida, Inc. v. E.S. Originals, 281 F.3d 726, 730 (8th Cir. 2002); Shelton v. American Motors Corp., 805 F.2d 1323, 1326-27 (8th Cir. 1986).
Based on the discussion above, the Court finds that the Magistrate Judge's Order was neither clearly erroneous nor contrary to law. Therefore, the February 12, 2002 Order denying plaintiffs' motion to compel the depositions of Susan Sangillo, Eric Schwimmer, Art Ryan, and Michelle Darling is affirmed. Because the Court affirms the Magistrate Judge's Order, plaintiffs' contention that the deposition should have been held in Minneapolis, Minnesota and its request for costs and attorneys fees are moot.
II. Defendant's Appeal of Order Denying Motion to Compel Plaintiffs to Appear for Continuation of Depositions
This motion involves the depositions of plaintiffs Mark Cardenas ("Cardenas") and Pamela Muldoon ("Muldoon"). Following these depositions, Prudential moved to compel the plaintiffs to return for further questioning, arguing that plaintiffs had been so uncooperative and disruptive during questioning that the depositions were useless. Prudential also sought appointment of special master to supervise the continued depositions, and establishment of rules of conduct for the depositions.
The Magistrate Judge denied Prudential's motion, finding that it would be "just and practicable" to apply the new (and optional in this case) federal rule limiting depositions to one day of seven hours. See Fed.R.Civ.P. 30(d)(2). In so ruling, the Magistrate Judge specifically rejected Prudential's arguments that plaintiffs' conduct rendered the depositions useless:
It is apparent to this Court that the conduct of both the deponents, on the one hand, and the defendant's attorney, on the other, contributed to the confrontational nature of the depositions. While it is true that the deponents, at times, gave argumentative and non-responsive answers, Defense Counsel's suggestion that the depositions were "useless" because of the deponent's argumentative speeches, is hyperbole.
Cardenas v. Prudential Ins. Co. of Amer., Civ. 99-1421, slip op. at 2 (D.Minn. Feb. 12, 2002) (emphasis added).
Prudential appeals the Magistrate Judge's Order, arguing that plaintiffs' conduct did impede the depositions, and that application of the Rule 30(d)(2) time limit is inappropriate. Prudential is correct that application of the Rule is optional in this case because the action commenced before the new rule took effect. Nevertheless, Prudential's argument against applying the time limit rests upon its assertion that plaintiffs were solely responsible for any delays or impediments. It is evident from the record that these depositions were contentious. After hearing oral argument and reviewing the parties' submissions, the Magistrate Judge concluded that both sides were to blame for any breakdown in the depositions. Prudential has not shown that this determination is clearly erroneous or contrary to law. Assigning blame in such circumstances is never a clear cut task, and the Magistrate Judge made a reasonable determination based on the evidence presented to him. Even if this Court would reach a different conclusion upon a de novo review of the evidence, it would not change the Court's conclusion that the Magistrate Judge's Order was not clearly erroneous or contrary to law. Therefore, the Order is affirmed.
Prudential moves to strike some of the materials that plaintiffs submitted with its papers on appeal of the Magistrate Judge's Order. Prudential argues that these must be excluded because they were not submitted to the Magistrate Judge and therefore violate Local Rules 72.1(g)(9) and (g)(11). As plaintiffs note, these rules do not apply to appeals of non-dispositive motions, but govern appeals to the district court of proceedings by consent before a Magistrate Judge. The Court finds that Prudential suffers no prejudice from the submission of these materials, and their submission does not violate Local Rule 72.1(b), which governs this appeal. Therefore, Prudential's motion to strike will be denied.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that:
1. Plaintiff's appeal [Civil Case No. 99-1421, Docket No. 123; Civil Case No. 99-1422, Docket No. 104; Civil Case No. 99-1736, Docket No. 71] and defendant's appeal [Civil Case No. 99-1421, Docket No. 121; Civil Case No. 99-1422, Docket No. 102] are DENIED.
2. The Magistrate Judge's Order dated February 12, 2002 denying plaintiffs' motion to compel the depositions and denying defendant's motion to Appoint a Special Master, Issue Rules of Conduct, and Compel Plaintiffs to Appear for the Continuation of their Depositions [Civil Case No. 99-1421, Docket No. 109; Civil Case No. 99-1422, Docket No. 92; Civil Case No. 99-1736, Docket No. 63] is AFFIRMED.
2. Defendant's Letter/Motion to Strike the Affidavit of Theresa Freeman [Civil Case No. 99-1421, Docket No. 141; Civil Case No. 99-1422, Docket No. 122] is DENIED.