River City Testing v. Cohen
River City Testing v. Cohen
2021 WL 4805443 (C.D. Cal. 2021)
July 8, 2021

Pym, Sheri,  United States Magistrate Judge

Protective Order
30(b)(6) corporate designee
Proportionality
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Summary
The defendants filed an ex parte application for a protective order to prevent the deposition of a high-ranking government official, arguing that it would be burdensome and unnecessary. The court granted the application, stating that the information sought could be obtained from a more convenient and less burdensome source, and encouraged the parties to explore other options for obtaining the desired discovery. The court also stated that it would consider lifting the protective order if the plaintiffs could show extraordinary circumstances.
River City Testing, et al.
v.
Jack Cohen, et al
Case No. 5:20-cv-2198-CJC (SPx)
United States District Court, C.D. California
Filed July 08, 2021

Counsel

Kimberly I. Carter, Deputy Clerk, Attorneys Present for Applicant: None Present
None, Court Reporter / Recorder, None, Tape No., Attorneys Present for Respondent: None Present
Pym, Sheri, United States Magistrate Judge

Proceedings: (In Chambers) Order Granting Defendants' Ex Parte Application for Protective Order [35]

I. INTRODUCTION
*1 On July 1, 2021, defendants Jack Cohen, Eric France, Nathan Larson, and Craig Rush filed an ex parte application for a protective order preventing the deposition of California State Architect Ida Clair. Docket No. 35. Defendants' arguments are supported by their declarations, the declaration of Ida Clair, and the declaration of defendants' counsel Tim Vanden Heuvel and accompanying exhibits. Plaintiffs River City Testing (“RCT”), Rob Schumacher, and Stephen Potter filed an opposition on July 2, which was supported by the declaration of their counsel Molly J. Magnuson and exhibits. Docket No. 36. That same day, defendants filed a declaration from their counsel David Adida in reply to plaintiffs' opposition. Docket No. 37.
For the following reasons, the court grants defendants' ex parte application for a protective order.
II. BACKGROUND
On October 1, 2020, plaintiffs filed a complaint in the Riverside County Superior Court alleging violations of their federal civil rights. Defendants removed the action to this court on October 20, 2020. Plaintiffs filed their Second Amended Complaint (“SAC”), the operative complaint, on February 19, 2021. Plaintiffs name each of the four defendants individually and as an employee for the California Division of the State Architect (“DSA”).
In a nutshell, DSA provides design and construction oversight for state-owned and leased facilities, including public schools and colleges. SAC ¶ 10. DSA is also charged with administering certification programs for project inspectors, materials testing laboratories, and certified access specialists. Id.
RCT is in the business of performing construction-related inspections and testing, primarily for school projects. Id. ¶ 15. In 2007, DSA accepted RCT into the Laboratory Evaluation and Acceptance (“LEA”) program. Id. ¶ 19. LEA participants are able to provide construction material testing and inspection services for DSA projects, including all public schools and state-owned or leased essential services buildings. See id.
Plaintiffs allege that on September 23, 2020, defendant France, on behalf of DSA, sent a letter to plaintiffs purporting to terminate them from the LEA program. Id. ¶ 23. The parties vigorously dispute the basis for that termination. See id. ¶ 23; App. at 2-8. Plaintiffs allege defendants terminated them from the LEA program in retaliation for certain whistleblowing activities and without any due process. See SAC ¶¶ 27-37, 46. As a result of their termination, plaintiffs claim they lost contracts worth an estimated $2.5 million. See id. ¶ 41.
On October 27, 2020, less than a month after plaintiffs filed this action, DSA reinstated plaintiffs' LEA certification backdated to September 23, 2020. See id. ¶ 45. DSA continues to seek plaintiff's termination from the LEA program in a separate state administrative proceeding. See App. at 8.
III. DISCUSSION
The question before the court is whether the apex doctrine should prevent plaintiffs from deposing Clair, the State Architect. There is a minor inconsistency in the papers as to whether plaintiffs served Clair's deposition notice on June 6 or 7, 2021. Compare Heuvel Decl., Ex. A at 4 with Opp. at 1. The deposition is currently scheduled for July 15, 2021. Before addressing the parties' apex arguments, the court considers whether ex parte relief is appropriate in this instance.
A. Defendants' Ex Parte Application Is Justified
*2 “Ex parte motions are rarely justified ....” Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995). To justify ex parte relief, the moving party must, at a minimum, show: (1) its “cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures”; and (2) “the moving party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Id. at 492.
Defendants argue their ex parte application is necessary because there is insufficient time for a regular noticed motion to be heard before the scheduled deposition date of July 15, 2021. Notice of App. at 2. Plaintiffs counter that defendants did not show diligence in filing this application. See Opp. at 3. Specifically, plaintiffs note that defendants waited eight days to file this application after giving notice on June 21. Id. at 2. By the time of the filing, it had been almost one month since plaintiffs served the deposition notice on Clair. Id.
The court concludes the Mission Power factors are satisfied. Defendants promptly started the Local Rule 37 meet-and-confer process on June 8, a day or two after receiving Clair's deposition notice. See Heuvel Decl., Ex. A at 4-5. Plaintiffs did not respond to defendants' request for a discovery conference until June 17. See id. at 2-3. Plaintiffs' response was timely under Local Rule 37-1, but by taking nine days to respond, plaintiffs prevented defendants from being able to raise this matter by way of a regular noticed joint stipulation that could be heard before July 15. See L.R. 6-1 (notice of motion has to be filed no later than 28 days before date set for hearing); L.R. 37-2.2 (timing requirements for preparing joint stipulation). That is the case even if defendants had not delayed in filing their discovery motion after June 21. Given these circumstances, plaintiffs' argument that defendants were not diligent in filing a regular noticed motion is disingenuous.
Since the deposition is scheduled for July 15, the court agrees with plaintiffs that the better course of action would have been for defendants to move to expedite the hearing on a regular noticed motion for protective order, which would have given plaintiffs more time to respond. Nonetheless, given that defendants gave notice of their intent to file the ex parte application along with a copy of defendants' moving points on June 21 (see Adida Reply Decl. ¶¶ 5, 7), plaintiffs had ten days to prepare a response to the ex parte application prior to its filing on July 1. As such, there has been no real prejudice to plaintiffs, and the court will not deny ex parte relief based on defendants' less-than-ideal choice of procedure.
B. A Protective Order Is Warranted at This Juncture
Federal Rule of Civil Procedure 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” To be relevant, the information sought “need not be admissible in evidence”; however, it must be “proportional to the needs of the case.” Id. Notwithstanding the broad right to discovery, courts may issue orders under Rule 26(c) “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” For good cause, courts may limit the type, scope, or frequency of discovery allowed against a person or forbid discovery altogether. See Fed. R. Civ. P. 26(c)(1). To establish good cause, “the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips ex. rel. Ests. of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002) (citation omitted).
*3 The apex doctrine is a judicial creation that prohibits depositions of high-ranking government officials absent “extraordinary circumstances.” Est. of Levingston v. Cnty. of Kern, 320 F.R.D. 520, 525 (E.D. Cal. 2017) (quoting Green v. Baca, 226 F.R.D. 624, 648 (C.D. Cal. 2005)). “The rule shielding agency decisionmakers from oral depositions is intended to protect them for the burdensomeness of discovery, to allow them to spend their valuable time on the performance of official functions, and to protect them from inquiries into the mental processes of agency decisionmaking.” 1 Discovery Proceedings in Federal Court § 8:9 (3d ed. 2021). An apex deposition is warranted only if (1) the deponent has unique first-hand, non-repetitive knowledge of the facts at issue and (2) the party seeking the deposition has exhausted other less intrusive discovery methods. See Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012).
Plaintiffs concede that Clair meets the definition of a high-ranking official given her position as State Architect. Opp. at 4. But they argue she was the unilateral final decision maker with respect to DSA's decision to terminate RCT from the LEA program and the subsequent decision to reinstate its membership. See Opp. at 4-5. In support of their argument, they point to the testimony of several DSA employees, including defendants Larson, France, and Rush, who confirmed that Clair made those decisions. See id. at 5-6. Plaintiffs want to depose Clair to determine what she knew or did not know when she made those decisions. See id. at 6-7. They claim there is no other source for this evidence of Clair's state of mind. See id. at 7.
Defendants respond that Clair does not have any first-hand knowledge of the specific issues in this case. App. at 11. With respect to the circumstances behind the decisions to terminate and then reinstate RCT's LEA certification, defendants maintain she did not participate in the investigation of RCT and has no direct personal knowledge of the issues that precipitated its termination from the program. See id. Defendants also claim they have already explained at length the details surrounding the termination and reinstatement. See id. at 11-12. Finally, defendants offer that DSA will designate a Rule 30(b)(6) witness to answer questions regarding the official decisions in question. See id. at 12.
At this time, plaintiffs have not established the existence of extraordinary circumstances requiring Clair's deposition. First, the court is not presently convinced that Clair's testimony would be sufficiently unique and non-repetitive to warrant a deposition. In her declaration submitted in support of the ex parte application, Clair claims she has no direct personal knowledge of DSA's investigation, and that she approved RCT's termination and reinstatement in her official capacity as acting State Architect. See Clair Decl. ¶¶ 3, 5. She further alleges she “participated in brief discussions led by DSA staff regarding whether to withdraw River City Testing's acceptance in the LEA Program, whether to reinstate the acceptance pending outcome of this proceeding, and whether to file Accusation Number 229-01.” Id. ¶ 4. In other words, it appears Clair made the relevant decisions based on second-hand information provided by other individuals, as is often the case with official administrative decisions. That level of involvement is insufficient to warrant an exception to the apex doctrine. See Apple Inc., 282 F.R.D. at 263 (apex deposition is only warranted if deponent has unique first-hand, non-repetitive knowledge of the relevant facts).
Second, it is likely the information plaintiffs seek can be obtained from a more convenient and less burdensome source. See id. (court may preclude apex deposition under Rule 26(c) where the discovery sought “can be obtained from some other source that is more convenient, less burdensome, or less expensive”). Namely, defendants propose that DSA will designate a Rule 30(b)(6) witness to testify about the official decisions to terminate and reinstate RCT's LEA certification. Given at least this option, it does not appear that plaintiffs have yet exhausted other discovery methods to obtain the information they seek.
*4 The court encourages the parties to further meet and confer about the possibility of conducting a Rule 30(b)(6) deposition, as well as other options for plaintiffs to obtain the discovery they seek. In any 30(b)(6) deposition or any other discovery proceeding, the court expects both sides to abide by the Central District's Civility and Professionalism Guidelines. Failure to do so may result in sanctions.
IV. CONCLUSION
For these reasons, the court grants defendants' ex parte application for a protective order (docket no. 35). In particular, the court now grants a protective order preventing plaintiffs from deposing California State Architect Ida Clair in this case. On plaintiffs' motion, the court will consider lifting the protective order upon a showing of extraordinary circumstances.