Netscout Systems, Inc. v. Gartner, Inc.

Full title: Netscout Systems, Inc. v. Gartner, Inc.

Court: Superior Court of Connecticut

Date published: Aug 22, 2016

(FS1)FSTCV146022988S (Conn. Super. Ct. Aug. 22, 2016)

Opinion

(FS1)FSTCV146022988S

08-22-2016

Netscout Systems, Inc. v. Gartner, Inc.

Hon. Charles T. Lee, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE GARTNER'S MOTION FOR A PROTECTIVE ORDER PRECLUDING THE DEPOSITION OF Mr. EUGENE A. HALL (#235)

Hon. Charles T. Lee, J.

On June 8, 2015, defendant Gartner, Inc. filed the present motion, with supporting memorandum of law and exhibits, for a protective order precluding the deposition of its Chief Executive Officer, Mr. Eugene A. Hall as noticed by plaintiff NetScout Systems, Inc. NetScout filed its Objection with supporting affidavit and exhibits on July 25, 2016 (#249). Gartner filed a reply memorandum with exhibits on July 28, 2016 (#253), and the motion was heard at short calendar on August 1, 2016.

Background

NetScout comrnence4 this action on August 4, 2014 with service of a complaint alleging violations of the Connecticut Unfair Trade Practices Act and defamation arising out of Gartner's Magic Quadrant evaluation of NetScout released on March 6, 2014. NetScout alleged, among other things, that Gartner's evaluation contained untrue statements about its market position, its products, its plans and aspirations, its capabilities and leadership. NetScout further alleged that, the reason behind Gartner's unfavorable review was that NetScout did not pay Gartner sufficient sums for consulting services, a practice NetScout calls " pay-to-play." Gartner has maintained that its rating of NetScout constituted opinion and statements involving the public interest, which are protected by the First Amendment, and that such statements were true and/or in good faith. It further denies any favoritism shown to companies which buy substantial services from Gartner.

Of relevance to this motion, the parties agree that NetScout's CEO, Mr. Anil Singhal, sent a letter to Mr. Hall dated February 22, 2014 stating that Mr. Singhal was advised that NetScout was going to receive an unflattering review despite its leadership in the network performance management sector. Mr. Singhal stated that he felt Gartner had an inexplicable bias against NetScout and that Gartner's criticisms were unfounded. The letter states, " I am writing to you directly, because I am not sure if you are aware of this upcoming NPM Magic Quadrant and its content. In my opinion, your team is making an egregious mistake by publishing this NPM MQ as it is currently drafted . . . I will wait to hear from you soon." Mr. Hall referred Mr. Singhal's letter for handling to Ms. Nancy Ervine, the head of Gartner's Office of Ombudsman, who informed Mr. Singhal on February 23, 2014 that she would oversee an investigation into the concerns expressed in his letter. In deposition testimony, Ms. Erskine said she discussed Gartner's dispute resolution process with Mr. Singhal who asked that NetScout be removed from the Magic Quadrant report, and that she convey his request to Mr. Hall. Ms. Erskine testified that it was Gartner's policy not to remove a participant from the Magic Quadrant review, that she discussed the matter with Mr. Hall, who agreed to adhere to the policy, and that she so advised Mr. Singhal. Based on this fact pattern, NetScout seeks to depose Mr. Hall relating to Gartner's refusal to remove NetScout from the rating, as well as to ask Mr. Hall about Gartner's alleged pay-to-play policies.

NetScout served a deposition notice on January 29, 2015, which identified Mr. Hall as the first witness it wished to depose. Gartner filed a motion for a protective order (#132) on February 18, 2015. NetScout withdrew the notice and the motion was not pursued. On November 5, 2015, NetScout again noticed Mr. Hall's deposition, and Gartner filed a second motion for a protective order on December 3, 2015 (#203). The motion was heard on February 22, 2016, when the court granted the motion without prejudice, pending further discovery.

NetScout served additional interrogatories and document requests to which Gartner replied that it had no further information beyond what it had already produced, including an affidavit from Mr. Hall dated December 2, 2015, in which he stated that he understood that Ms. Erskine conducted a review of NetScout's request, but he did not play a role in the review. He further stated, " I spoke very briefly with Ms. Erskine about NetScout's request to her that NetScout be removed from the 2014 NPMD Magic Quadrant. I agreed with Ms. Erskine that Gartner should not agree to such removal. I took no further action regarding the matter." Net Scout also took the depositions of several senior Gartner executives. NetScout again noticed Mr. Hall's deposition on May 17, 2016, and Gartner filed the present motion for a protective order, its third, on June 8, 2016.

Contentions of the Parties

In the present motion, Gartner contends that " NetScout cannot possibly meet its burden of demonstrating that Mr. Hall's testimony is remotely justified, let alone necessary." Gartner contends that Mr. Hall, as the CEO of company with 7, 600 employees, is an " apex" executive, and, as such, is entitled to an additional layer of protection from discovery. Citing decisions of various federal courts and state courts, it argues that Mr. Hall's deposition should not be taken unless NetScout can demonstrate that he has unique knowledge of relevant facts and that such information is unavailable elsewhere. Gartner states, " As the party taking the deposition, the burden is on the plaintiff to come forward with an initial showing that the apex witness possesses unique, superior knowledge." Here, Gartner asserts that Ms. Erskine has testified as to what occurred, as can lower-level employees. It claims Mr. Hall had " essentially no involvement in the matter" and there is " nothing Mr. Hall can add." In a similar vein, Gartner contends that Mr. Hall has no unique knowledge regarding the company's business model and practices, and that NetScout has not met its burden to show that less intrusive methods of discovery would not be adequate.

NetScout responds by noting that no Connecticut case has adopted the apex deposition rule and the burden of showing good cause rests with Gartner as the party seeking a protective order. It also states that, in every case where the executive had personal knowledge of relevant facts, the protective order was denied. Here, Mr. Hall admits that he was a decision-maker as to whether NetScout would remain in the Magic Quadrant evaluation. NetScout claims it has pursued other, less intrusive, means to obtain relevant facts, but has not been able to do so satisfactorily. Further, it notes that some amount of duplication in discovery is not a sufficient basis to deny an executive's deposition. The mere assertion of a busy schedule is also not enough to show annoyance, oppression or undue burden; rather, a substantive factual basis must be provided. Mr. Hall also is said to have direct substantive knowledge of the " unlawful" business model and practices which are at the heart of NetScout's CUTPA claim, and it notes that Mr. Hall signed the company's 10-K filings, which described such practices in general terms. Even if other executives who were designated to testify on these topics were able to do so, Mr. Hall had " the last word" on why and how the business plan was formulated and, as CEO his explanations may be more probative than the testimony of others.

In reply, Gartner claims that the apex deposition rule is the law of the case because the court at the prior hearing said that the ability to obtain adequate testimony from others might be dispositive of the motion. Gartner further argues that the weight of applicable authority places the burden of persuasion on the proponent of the deposition. It states that the decision to retain NetScout in the Magic Quadrant rating was not Mr. Hall's, but was a result of written corporate policy, and that Ms. Erskine has testified completely about her " two-minute" conversation on the topic with Mr. Hall. Finally, Gartner states that the identity of the 10-K signatory is irrelevant, it is the company's business practices which are at issue, and they have been discussed fully at the depositions of designated corporate witnesses.

Discussion

Practice Book § 13-5 provides.

Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matter not be inquired into, or that the scope of the discovery be limited to certain matters . . .

Generally, a party is free to notice and compel the deposition of an officer of a party corporation. See Practice Book § 13-26 (" [t]he attendance of a party deponent or of an officer, director, or managing agent of a party may be compelled by notice"). As is the case for any other party from whom discovery is sought, if the party corporation is opposed to the taking of such deposition, it may move for a protective order pursuant to Practice Book § 13-5; there is no particular Practice Book rule or statutory provision that specifically governs protective orders filed by party corporations.

Although our appellate courts have not directly addressed who has the burden of persuasion under § 13-5, our trial courts have consistently maintained that " [t]he party seeking a protective order under Practice Book § 13-5 bears the burden of establishing the contemplated good cause." (Internal quotation marks omitted.) Cadavid v. Ranginwala, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-12-6014019-S, (October 13, 2015, Heller, J.); accord Dur-A-Flex, Inc. v. Dy, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV14-6049281-S (March 8, 2016, Sheridan, J.) (under § 13-5, " [t]he party resisting discovery has the burden to show 'good cause' for protecting discovery"); Albert Kemperle, Inc. v. John Carmen, Inc., Superior Court, judicial district of New Haven, Docket No. CV-14-6048047-S, (April 10, 2015, Lager, J.) (" [i]n considering a party's motion for a protective order to prevent or limit the deposition or document production of a nonparty, the court must apply the usual standards of Practice Book § 13-5: good cause must be shown and the moving party roust establish that it requires protection 'from annoyance, embarrassment, oppression, or undue burden or expense'").

It appears that defendant Gartner is attempting to shift the burden of justifying Mr. Hall's deposition to NetScout rather than showing just cause itself for the protective order by urging the court to adopt the " apex deposition" rule as variously applied in several federal and out of state courts. A discussion of this rule shows its variations and its essential component: that the burden of persuasion should be shifted to the proponent of the deposition when a senior executive is involved.

A. Overview of Apex Deposition Rule

Under rule 26(c)(1) of the Federal Rules of Civil Procedure, a district court may, upon motion of a party or person from whom discovery is sought, and " for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Most states have an analogous rule permitting the issuance of a protective order upon a showing of good cause. See, e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 29, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (" [m]ost [s]tates . . . have adopted discovery provisions modeled on [r]ules 26 through 37 of the Federal Rules of Civil Procedure"). Generally, under such rules, " [t]he party seeking a protective order has the burden of showing that good cause exists for issuance of that order." (Internal quotation marks omitted.) Gambale v. Deutsche Bank AG, 377 F.3d 133, 142 (2d Cir. 2004). Where the discovery being opposed is the deposition of a high-ranking corporate official however some state and federal courts shift this burden to the nonmoving party pursuant to the " apex deposition" rule.

" As used by other state and federal courts, the apex-deposition rule [generally] provides that before a plaintiff may take the deposition of a high-ranking or 'apex' governmental official or corporate officer, the plaintiff must demonstrate both that the governmental official or corporate officer possesses superior or unique information relevant to the issues being litigated and that the information cannot be obtained by a less intrusive method, such as by deposing lower-ranking employees." Alberto v. Toyota Motor Corp., 289 Mich.App. 328, 333, 796 N.W.2d 490 (2010). " Recognizing that the highest positions within a juridical entity rarely have specialized and specific first-hand knowledge of matters at every level of the complex organization, courts have adopted the apex-deposition rule in the corporate context to (1) promote efficiency in the discovery process by requiring that before an apex officer is deposed it must be demonstrated that the officer has superior or unique personal knowledge of facts relevant to the litigation . . . and (2) prevent the use of depositions to annoy, harass, or unduly burden the parties." (Citation omitted.) Id., 338.

Recognition of the doctrine is most widespread among the federal district courts; see, e.g., Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., 310 F.R.D. 523, 527-28 (S.D.Fla 2015); Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 125-27 (D.Md. 2009); Berning v. UAW Local 2209, 242 F.R.D. 510, 511-14 (N.D.Ind. 2007); Evans v. Allstate Ins. Co., 216 F.R.D. 515, 518-19 (N.D.Okla. 2003); Harris v. Computer Associates International, Inc., 204 F.R.D. 44, 46-47 (E.D.N.Y. 2001); Baine v. General Motors Corp., 141 F.R.D. 332, 334-36 (M.D.Ala. 1991); but the only United States Court of Appeals to have explicitly considered the doctrine, has rejected it.¹ See Serrano v. Cintas Corp., 699 F.3d 884, 902 (6th Cir. 2012) (concluding that " the magistrate judge erred as a matter of law in relying on 'apex doctrine' to grant the protective order [for the defendant's chief executive officer (CEO)]" because [i]n doing so, the magistrate judge considered only [the CEO's] knowledge relevant to the [plaintiff's] claims and failed to analyze, as required by [rule 26(c)(1)]. what harm [the CEO] would suffer by submitting to the deposition"), cert. denied, 134 S.Ct. 92, 187 L.Ed.2d 254 (2013).

1 Three other United States Courts of Appeals appear to have adopted an iteration of the apex deposition rule, but they have not explicitly addressed it nor formalized the underlying principles into a generally applicable doctrine or rule. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 681-82 (7th Cir. 2002); Thomas v. International Business Machines, 48 F.3d 478, 483-84 (10th Cir. 1995); Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979).

In addition to the federal courts, appellate courts of several states have explicitly considered whether to apply the rule in the corporate context, with a slight majority adopting it. Courts in California, Michigan, Texas, and West Virginia have adopted the rule; see State ex rel. Massachusetts Mutual Life Ins. Co. v. Sanders, 228 W.Va. 749, 760, 724 S.E.2d 353 (2012); Alberto v. Toyota Motor Corp., supra, 289 Mich.App. 336; Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995); Liberty Mutual Ins. Co. v. Superior Court, 10 Cal.App.4th 1282, 1287-89, 13 Cal.Rptr.2d 363 (1992). Courts in Florida, Missouri, and Oklahoma have rejected it. See Crest Infiniti II, LP v. Swinton, 2007 OK 77, 174 P.3d 996, 1003-04 (Okla. 2007); Citigroup, Inc. v. Holtsberg, 915 So.2d 1265, 1269-70 (Fla.App. 2005); State ex rel. Ford Motor Co. v. Messina, 71 S.W.3d 602 606-07 (Mo. 2002) (en banc).

Trial courts are generally afforded broad discretion in considering whether there is " good cause" for a protective order. See, e.g., Seattle Times Co. v. Rhinehart, supra, 467 U.S. 36 (" [r]ule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required"); Cunniffe v. Cunniffe, 150 Conn.App. 419, 440, 91 A.3d 497 (" [t]he use of protective orders and the extent of discovery [are] within the discretion of the trial judge" [internal quotation marks omitted]), cert. denied, 314 Conn. 935, 102 A.3d 1112 (2014). Thus, even in jurisdictions where the apex deposition rule has not been adopted, courts therein nevertheless may consider such factors as the extent to which the proposed witness' knowledge is superior or unique and the availability of less intrusive means of discovery. The hallmark of the apex deposition rule therefore appears to be the burden-shifting aspect of the rule.

The burden-shifting framework articulated by the Supreme Court of Texas is representative:

When a party seeks to depose a corporate president or other high-level corporate official and that official (or the corporation) files a motion for protective order to prohibit the deposition accompanied by the official's affidavit denying any knowledge of relevant facts, the trial court should first determine whether the party seeking the deposition has arguably shown that the official has any unique or superior personal knowledge of discoverable information. If the party seeking the deposition cannot show that the official has any unique or superior personal knowledge of discoverable information, the trial court should grant the motion for protective order and first require the party seeking the deposition to attempt to obtain the discovery through less intrusive methods . . . After making a good faith effort to obtain the discovery through less intrusive methods, the party seeking the deposition may attempt to show (1) that there is a reasonable indication that the official's deposition is calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate. If the party seeking the deposition makes this showing, the trial court should modify or vacate the protective order as appropriate.

Crown Central Petroleum Corp. v. Garcia, supra, 904 S.W.2d 128; State ex rel. Massachusetts Mutual Life Ins. Co. v. Sanders, supra, 228 W.Va. 760 (explicitly adopting Texas framework); see, e.g., Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., supra, 310 F.R.D. 527 (" [t]he party seeking the deposition of the high-ranking official has the burden to show that the deposition is necessary"); In re Mentor Corp. Obtape Transobturator Sling Products Liability Litigation, United States District Court, Docket No. 4:08-MD-2004 (CDL) (M.D.Ga December 1, 2009) (" [u]nder the apex rule, the party seeking the deposition must show that the executive has unique or superior knowledge of discoverable information that cannot be obtained' by other means" [internal quotation marks omitted].

Despite the crux of the apex deposition rule being this burden-shifting framework, some courts that seemingly accept the rule nevertheless maintain that the party opposing the deposition retains at all times the burden of showing that his or her " apex" status warrants protection. See Scott v. Chipotle Mexican Grill, Inc., 306 F.R.D. 120, 122 (S.D.N.Y. 2015) (acknowledging that " [c]ourts have recognized an additional layer of protection for senior corporate executives subject to depositions, " but noting that " [w]hen considering whether to allow the deposition of a corporate executive, the [c]ourt must begin with the proposition that plaintiffs have no burden to show that the deponents have any relevant knowledge" [internal quotation marks omitted]); Bose Corp. v. Able Planet, Inc., United States District Court, Docket No. 11-CV-01435-MSK-MJW, (D.Colo. October 30, 2012) (" the executive seeking to avoid being deposed bears the burden of establishing that the 'apex doctrine' precludes his deposition"). As such, this iteration is not so much a new and different " rule" as a specific application of the general rule. See Van Den Eng. v. Coleman Co., United States District Court, Docket No. 05-MC-109-WEB-DWB (D.Kan. October 21, 2005) (" The Tenth Circuit case directly addressing [the deposing of high-level corporate officials] suggests that motions for protective orders for [a]pex [o]fficials are treated under the same standards as any other protective order, while taking into consideration special factors that may apply to such officials. See Thomas v. International Business Machines, 48 F.3d 478, 483-84 [10th Cir. 1995] [citing Fed.R.Civ.P. 26(c) . . . as the standard for determining whether the district court abused its discretion in granting a protective order to preclude the deposition of an [a]pex [o]fficial and considering such factors as the executive's knowledge of the issues in the case, the availability of direct supervisors and lower-level managers for deposition, and scheduling conflicts]"). Courts that purport to recognize the apex deposition rule but do not shift the burden are thus more aligned with the courts that have rejected the rule than those that have explicitly adopted it, as many of the courts that have rejected it do so, at least in part, because they object to the burden-shifting aspect of the rule. See Van Den Eng. v. Coleman Co., supra (declining to apply rule and noting that " the [c]ourt is unaware of any federal case, interpreting the Federal Rules of Civil Procedure, that has adopted such an absolute threshold test that must be met before [a]pex [o]fficials can be deposed"). Plainly, there is considerable variation in the apex witness rule as adopted in various jurisdictions across the country.

B. Protective Orders Under Practice Book § 13-5 and the Apex Witness Rule

The applicability of the apex witness rule in this state has not been considered previously by our courts. Nevertheless, it seems clear that the rule is incompatible with Connecticut law to the extent it shifts the burden of showing good cause to the proponent of the deposition. The plain meaning of § 13-5 and the consensus within the Superior Courts therefore militate against adopting a form of the apex deposition rule that would relieve the party opposing discovery of the burden of establishing good cause. This conclusion is further supported by our Supreme Court's decision in Lougee v. Grinnell, 216 Conn. 483, 489, 582 A.2d 456 (1990). overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999) (en banc) (" It may well be that [the petitioner] lacks the information that [the respondent] desires, but [the respondent] need not blindly accept [the petitioner's] claimed lack of knowledge as reported by his attorney [The respondent) is entitled to test that claim by deposing [the petitioner), and any objections raised by [the petitioner] can adequately he preserved on the record of the deposition." (Emphasis added.))

The Connecticut authority strongly suggests that the party opposing discovery, regardless of the position of the proposed witness, bears the burden of showing good cause. Adapting the principles evolved by the courts which have explicitly endorsed the apex witness rule but adhering to Connecticut's framework in which the movant retains the burden of persuasion, the court holds that in this case involving the CEO of major corporation, Gartner bears the burden of establishing that Mr. Hall has no unique knowledge of the decision to retain NetScout in the Magic Quadrant review or of the alleged " pay for play" practices and policies of his company, and that such information cannot be obtained from lower-level employees. The court also notes that Gartner is the appropriate party to bear this burden because the questions at issue relate to the knowledge of its CEO and lower-level employees, and not to information in the possession of NetScout.

Analysis

Notwithstanding the inapplicability of the apex witness rule, per se, to our procedure, many of the principles applied in the apex witness cases fit comfortably within Connecticut's analysis of the good cause necessarily shown to justify a protective order precluding a CEO's deposition.

The court finds the following:

Gartner has failed to show that Mr. Hall does not have some measure of unique knowledge concerning the decision to refuse to allow NetScout to " opt out" of the Magic Quadrant rating. A key question would be the extent to which Gartner's written policy is actually applied, especially with respect to valuable customers. Mr. Hall's thought process in this respect could be material to plaintiff's case.

Similarly, the CEO's answers with respect to the alleged " pay-for-play" practices could be material to plaintiff's case if properly limited to the relevant allegations of the complaint.

While it makes sense to require the deposition of lower-level employees prior to assessing the need for the CEO's deposition, Garner has failed to overcome NetScout's contention that these depositions have not eliminated the need for Mr. Hall's deposition.

In consideration of the above, the court directs that Mr. Hall's deposition shall last no more than three hours and be limited to the decision to retain NetScout within the Magic Quadrant rating and to the existence of " pay-to-play" practices at the company with respect to Magic Quadrant ratings of network performance management and diagnostic businesses.

Gartner raises the argument that an order such as this one could have negative public policy effects in that it could make any CEO more vulnerable to harassing discovery notices. The court disagrees and notes that it is applying familiar concepts to the evaluation of this motion for a protective order. Moreover, the court notes that it orders this deposition to go forward in a limited fashion into areas in which the witness admittedly has personal knowledge, only after the completion of very extensive discovery, and after the denial of a substantial motion to strike. Defendant has failed to show that, after substantial development of the facts and applicable law, the plaintiff should not be allowed to engage in this limited discovery, despite the important responsibilities of the proposed witness.

Conclusion

Gartner's motion for a protective order is denied to the extent that the deposition of Mr. Hall may go forward, but shall last no more than three hours and inquiry shall be limited to (1) the decision to refuse to allow NetScout to opt out of the Magic Quadrant review and (2) the, extent to which " pay-to-play" practices have been utilized at Gartner with respect to Magic Quadrant ratings in the network performance management and diagnostics sector.