*1 This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636, and upon Defendants’ Motion for a Protective Order to Preclude the Deposition of Scott Donnelly, [Docket No. 201], and Defendants’, On Behalf of Kevin Holleran, Motion for a Protective Order to Preclude the Deposition of Kevin Holleran, [Docket No. 205].

For the reasons discussed below, the Court DENIES Defendants’ Motion for a Protective Order to Preclude the Deposition of Scott Donnelly, [Docket No. 201], and the Court DENIES Defendants’, On Behalf of Kevin Holleran, Motion for a Protective Order to Preclude the Deposition of Kevin Holleran, [Docket No. 205].

I. RELEVANT FACTS

For a more complete account of the facts that give rise to the present case and its procedural history, see this Court's prior Orders. [Docket Nos. 161, 173].

The Parties have already engaged in a considerable amount of discovery. (See, e.g., Haws Decl. [Docket No. 211] ¶¶ 2, 4). Plaintiffs have already conducted several depositions, including the Deposition of John Collins on December 16, 2020. (Id. ¶ 2; see also, Collins Dep. [Docket No. 211-1]). Mr. Collins was the vice president of the Off-Road Division of Defendant Textron Specialized Vehicles Inc. from March 2015, through mid-2019. (Collins Decl. [Docket No. 210] ¶ 2). While he held that position, Mr. Collins “managed and oversaw the implementation and execution of the terms of the [Parties’] Agreement,” and he “made the day-to-day business decisions about Arctic Cat and the development of dirt vehicles.” (Id. ¶¶ 5, 16). Mr. Collins reported to Textron Specialized Vehicles Inc.’s President and CEO, Kevin Holleran. (Id. ¶ 6). And Mr. Collins provided periodic status reports to Kevin Holleran, as well as, Textron Inc.’s President and CEO, Scott Donnelly. (Id. ¶¶ 3, 7).

On December 24, 2020, Plaintiffs noticed the deposition of Scott Donnelly for January 11, 2021. (Ex. B. [Docket No. 211-2]). As already noted, Scott Donnelly is the President and CEO of Textron Inc.[1] (Collins Decl. [Docket No. 211] ¶ 7).

On January 6, 2021, Plaintiffs informed Defendants that they were in the process of contacting Mr. Holleran, who was then no longer working for Defendant Textron Specialized Vehicles, about a deposition. (Ex. 1 [Docket No. 218-1], at 7). Defendants counsel subsequently informed Plaintiffs that they represent Mr. Holleran in connection with any deposition. (Ex. 1 [Docket No. 216-1], at 5). As already noted, Mr. Holleran was Textron Specialized Vehicles Inc.’s former President and CEO. (Collins Decl. [Docket No. 211] ¶ 6). Mr. Holleran left TSV in October 2018.[2] (Id.).

II. DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER TO PRECLUDE THE DEPOSITION OF SCOTT DONNELLY, [Docket No. 201], AND DEFENDANTS’, ON BEHALF OF KEVIN HOLLERAN, MOTION FOR A PROTECTIVE ORDER TO PRECLUDE THE DEPOSITION OF KEVIN HOLLERAN, [Docket No. 205].

*2 On January 28, 2021, Defendants filed their present motions for protective orders. [Docket Nos. 201, 205].[3] Defendants seek protective orders precluding the depositions of Scott Donnelly and Kevin Holleran. (Id.). Defendants contend that good cause exists to issue protective orders because Mr. Donnelly and Mr. Holleran are high-level corporate executives under the “apex doctrine,” and they have “no unique knowledge of the information sought by Plaintiffs,” and because Plaintiffs “have not exhausted other less intrusive ways to obtain the same information” that they now seek from Mr. Donnelly and Mr. Holleran. (Id.).

A. Standard of Review

Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Courts construe Rule 26(b)(1) broadly. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see also, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (Rule 26 “is liberal in scope and interpretation, extending to those matters which are relevant”). However, the scope of discovery is intended to focus on the actual claims or defenses that are at issue in the litigation. See e.g., Sierrapine v. Refiner Prods. Mfg., Inc., 275 F.R.D. 604, 609 (E.D. Cal. 2011). As such, the party seeking discovery is required to make a threshold showing of relevance before production of information is required. Hofer, 981 F.2d at 380.

A party generally, with certain exceptions, may depose any person without leave from the Court. Fed. R. Civ. P. 30(a)(1); but see, Fed. R. Civ. P. 30(a)(2) (exceptions when leave is required). However, Rule 26(c) allows the Court, upon a showing of good cause, to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery.” Fed. R. Civ. P. 26(c)(1)(A). “A motion under Rule 26(c) to limit discovery requires the [court] to compare the hardship against whom discovery is sought, if discovery is allowed, with the hardship to the party seeking discovery if discovery is denied.” Marrese v. Am. Acad. of Orthopedic Surgeons, 726 F.2d 1150, 1159 (7th Cir. 1984), rev'd on other grounds, 470 U.S. 373 (1985). “The party seeking the order ... bears the burden of establishing the requisite ‘good cause.’ ” Northbrook Digital, LLC v. Vendio Servs., 625 F. Supp. 2d 728, 734 (D. Minn. 2008). “To make this showing, the moving party cannot rely on broad or conclusory allegations of harm.” Id. at 757 (citing Gulf Oil v. Bernard, 452 U.S. 89, 102 n.16 (1981)). When determining whether to issue a protective order, courts apply a “balancing test” to determine whether good cause exists, weighing the moving party's potential burden against the opposing party's interest in the discovery at issue. Brosdahl–Nielsen v. Walden Auto. Grp., Inc., No. 04–cv–1363 (JMR/JSM), 2004 WL 6040018, at *2 (D. Minn. Nov. 24. 2004).

“A court has broad discretion in determining whether a protective order is warranted and the appropriate degree of protection.” Medtronic Inc. v. Guidant Corp., Nos. 00-1473, 00-2503 (MJD/JGL), 2001 WL 34784493, at *1 (D. Minn. Dec. 20, 2001), aff'd, 2002 WL 171711 (D. Minn. Jan. 29, 2002) (citing May Coating Techs., Inc. v. Ill. Tool Works, 157 F.R.D. 55, 57 (D. Minn. 1994)).

B. Analysis

*3 As already noted, Defendants seek the issuance of protective orders now because Mr. Donnelly and Mr. Holleran are high-level corporate executives that have “no unique knowledge of the information sought by Plaintiffs,” as well as, because Plaintiffs “have not exhausted other less intrusive ways to obtain the same information” that they now seek from Mr. Donnelly and Mr. Holleran. (Id.).

When considering whether to protect a high-level corporate executive from deposition, the Court begins its analysis from the premise that although “[t]here is no per se rule barring depositions of top corporate executives,” courts afford senior executives special consideration before allowing their depositions to proceed. Cardenas v. Prudential Ins. Co. of Am., No. 99–cv–1421 (JRT/FLN), 2003 WL 21293757, at *1 (D. Minn. May 16, 2003) (citing Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979)). Generally speaking, courts are wary of allowing parties to depose high-level executives where the deposing party fails to establish that the executive has some unique knowledge relevant and critical to the case at hand. Id.; Select Comfort Corp. v. Tempur Sealy Int'l, Inc., No. 13-cv-2451 (DWF/SER), 2015 WL 12803579, at *2 (D. Minn. Apr. 7, 2015) (quoting Bombardier Recreational Prods., Inc. v. Arctic Cat, Inc., No. 12-cv-2706 (MJD/LIB), 2014 WL 5685463, at *2 (D. Minn. Sept. 24, 2014)).

In cases where a party has sought to depose a high-level executive (i.e., an “apex” deposition), courts have “observed that such discovery creates a tremendous potential for abuse or harassment.” Apple Inc. v. Samsung Electronics Co., Ltd, 282 F.R.D. 259, 263 (N.D. Cal. 2012) (citations omitted); accord, Select Comfort Corp., 2015 WL 12803579, at *2. Accordingly, courts have discretion to limit discovery where the discovery sought “can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Apple Inc., 282 F.R.D. at 263; see also, PHL Variable Ins. Co. v. 2008 Christa Joseph Irrevocable Trust Midas Life Settlements LLC, No. 10-cv-03001 (PJS/TNL), 2012 WL 12896244, at *4 (D. Minn. Sept. 21, 2012) (“Under the apex rule, a court may bar a deposition of a high level executive who lacks unique or personal knowledge related to the case.”).

Apple Inc., 282 F.R.D. at 263 (internal citations omitted).[4]

*4 Therefore, in the present case, Plaintiffs have a threshold burden of showing that Mr. Donnelly and Mr. Holleran likely possess some unique first-hand, non-repetitive knowledge that is relevant to the issues in this case. See, e.g., PHL Variable Ins. Co., 2012 WL 12896244, at *4 (noting that the party seeking to depose executives must show evidence “suggest[ing] that these ‘apex deponents’ have some unique, first-hand, non-repetitive knowledge of the facts at issue in this case”). If that threshold burden is met, Defendants then bear the burden of establishing good cause for the protective orders they seek, and the Court must weigh the respective hardships the parties stand to incur were the discovery permitted or the protective order issued. See, e.g., City of Farmington Hills Emp. Ret. Sys. v. Wells Fargo Bank, N.A., No. 11-2529 (DWF/JJG), 2012 WL 13048263, at *2 (D. Minn. Sept. 17, 2012) (“The Court must first consider whether depositions of high-level corporate executives are appropriate before moving on to general considerations surrounding a protective order.”).

In the absence of a threshold showing that an executive possesses relevant, unique first-hand, non-repetitive knowledge, courts, including this one, have routinely issued protective orders. See, Bombardier Recreational Prods., Inc. v. Arctic Cat, Inc., No. 12-cv-2706 (MJD/LIB), 2014 WL 5685463, at *3–4 (D. Minn. Sept. 24, 2014), aff'd, 2014 WL 5685707 (D. Minn. Nov. 4, 2014) (granting protective order where no evidence of unique knowledge was demonstrated); see also, 3M Co. v. ACS Indus., Inc., No. 15-1889 (PAM/JSM), 2016 WL 9308317, at *3 (D. Minn. Mar. 10, 2016) (granting protective order where no evidence of unique knowledge was demonstrated, but noting that the decision could be revisited if such evidence was later uncovered); PHL Variable Ins. Co., 2012 WL 12896244, at *5 (granting protective order where no unique, first-hand knowledge was demonstrated); City of Farmington Hills Emp. Ret. Sys., 2012 WL 13048263, at *3 (granting protective order where the party seeking to depose executives “ha[d] not shown unique or special knowledge”).

Plaintiffs proffer two assertions in support of their argument that Mr. Donnelly and Mr. Holleran possesses unique first-hand, non-repetitive information.

First, Plaintiffs assert that because Mr. Donnelly and Mr. Holleran had “oversight” of lower-level employees who reported to them, they possess relevant knowledge that is unique due to their “birds-eye view” of the operations. (See, e.g., Mem. in Opp'n [Docket No. 216], at 2–3, 17–18, 21; Mem. in Opp'n [Docket No. 217], at 6, 17–18, 20).

However, even where an executive possesses relevant knowledge, that knowledge is not unique if it was provided solely to the executive by lower-level employees from whom that information can more easily be obtained. See, Dawkins v. Barnhart Crane & Rigging, Co., No. 8:18CV534, 2020 WL 1535851, at *2 (D. Neb. Mar. 31, 2020) (finding relevant knowledge was not unique when it was provided to the CEO by a lower-level employee); Select Comfort Corp. v. Tempur Sealy Int'l, Inc., No. 13-cv-2451 (DWF/SER), 2015 WL 12803579, at *2–3 (D. Minn. Apr. 7, 2015) (same); Bores v. Domino's Pizza, No. 05-2498 (RHK/JSM), 2007 WL 9735903, at *26 (D. Minn. Jan. 25, 2007) (same).

Accordingly, while Mr. Donnelly and Mr. Holleran may possess some relevant information due to their oversight and reports recieved from lower-level employees, such knowledge is not unique and can be more easily obtained from others. Moreover, Mr. Donnelly and Mr. Holleran's knowledge is not unique due to the mere fact that their positions provide them with a “birds-eye view” of operations. To the contrary, the apex doctrine is specifically aimed at preventing the depositions of executives simply because they hold top positions. See, e.g., Dawkins, 2020 WL 1535851, at *1 (quoting Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 128 (D. Md. 2009)) (“This rule 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.’ ”).

*5 Second, Plaintiffs assert that because Mr. Donnelly and Mr. Holleran exercised their own decision-making authority relative to the products at issue here, they have unique first-hand, non-repetitive knowledge related to those decisions. (Mem. in Opp'n [Docket No. 216], at 2–3, 6–7, 18, 20; Mem. in Opp'n [Docket No. 217], at 7, 18). Although the record presently before the Court does not indicate that Mr. Donnelly or Mr. Holleran were involved in day-to-day operations and decisions, there is evidence in the record now before the Court that they possessed and exercised some independent decision-making authority.

In reference to Mr. Donnelly, Michael Anderson[5] has stated that “[a]lthough Mr. Collins reported to [Textron Specialized Vehicles Inc.] president, Kevin Holleran, final decision-making authority rested with Scott Donnelly, the CEO of Textron Inc.” (Anderson Decl. [Docket No. 219] ¶ 6). According to Mr. Anderson, Mr. Donnelly conducted “a full review of ... specific vehicle development plans” at annual “Strategic Business Reviews” that “consisted of a meeting at which [they] presented [their] recommendations and rationale for product development, including specific vehicles to be developed, financial forecasts for the vehicles, performance data, and various details of the vehicles,” to Mr. Donnelly. (Id. ¶¶ 7–8). “At times, Mr. Donnelly accepted the recommendations [they] made and at times he did not.... Mr. Donnelly [wa]s the final decision maker and he exercised final veto power and authority over decisions as to which vehicles would be developed and which would not be developed.” (Id. ¶ 9).[6]

Mr. Anderson further stated that on or about May 23, 2017, he gave a presentation to Mr. Donnelly regarding how to proceed with the Wildcat XX, at which both Mr. Anderson and Mr. Collins “recommended to Mr. Donnelly that [they] proceed with funding and development of the Wildcat XX.” (Id. ¶ 13). Mr. Donnelly “approved the recommendation to fund and proceed with development of the Wildcat XX.” (Id.).[7]

In reference to Mr. Holleran, Mr. Collins testified at his deposition that Mr. Holleran, to whom Mr. Collins reported, was directly involved in making the ultimate decision to stop using the Arctic Cat Off Road brand name in favor of the Textron Off Road brand name. (Collins Dep. [Docket No. 211-1], at 7). Mr. Collins also testified that Mr. Holleran had numerous conversations with him about how the profitability of Arctic Cat had to improve. (Id. at 15). Moreover, Defendants themselves represent in their briefing that Mr. Holleran possesses “more information than Mr. Donnelly on the Speed Partners relationship.” (Mem. in Supp. [Docket No. 203], at 19) (emphasis added).

*6 The knowledge and reasons behind the decisions made by Mr. Donnelly and Mr. Holleran under their own independent, executive decision-making authority related to the at-issue products cannot be more easily obtained from lower-level employees. See, e.g., Comprehensive Pharmacy Servs., LLC v. Ascension Health Res. & Supply Mgmt. Grp. LLC, No. 4:17 CV 16 CDP, 2018 WL 1762716, at *3 (E.D. Mo. Apr. 12, 2018) (“The information sought by plaintiffs about [the Executive Vice President of the defendant's parent company's] decision-making cannot be obtained from others and [the plaintiff] is entitled to ask her about it directly.”). Therefore, this Court finds that Plaintiffs have made a sufficient threshold showing that Mr. Donnelly and Mr. Holleran likely possess some unique first-hand, non-repetitive knowledge that is relevant to the claims and defenses at issue in this case.

The Court thus next applies a “balancing test” to determine whether good cause exists to issue a protective order. See, Wood v. PACCAR, Inc., No. 19-cv-1010-LRR, 2019 WL 9093942, at *10 (N.D. Iowa Oct. 25, 2019); Bombardier, 2014 WL 5685463, at *3. Defendants bear the burden here of establishing good cause. See, Bombardier, 2014 WL 5685463, at *3.

Defendants again argue that good cause exists to issue protective orders because Mr. Donnelly and Mr. Holleran have “no unique knowledge of the information sought by Plaintiffs,” as well as, because Plaintiffs “have not exhausted other less intrusive ways to obtain the same information” that they now seek from Mr. Donnelly and Mr. Holleran. (Defs.’ Mot. for a Protective Order to Preclude the Dep. of Scott Donnelly [Docket No. 201]; Defs.’, on behalf of Kevin Holleran, Mot. for a Protective Order to Preclude the Dep. of Kevin Holleran [Docket No. 205]).

However, as already noted, Plaintiffs have made a threshold showing that Mr. Donnelly and Mr. Holleran likely have unique, relevant knowledge. The mere fact that Defendants have provided some contrary evidence and subjectively assert Mr. Donnelly and Mr. Holleran do not possess any unique, relevant knowledge, does not establish good cause for a protective order. See, Apple Inc., 282 F.R.D. at 263 (“A claimed lack of knowledge, by itself it is insufficient to preclude a deposition.”); see also, Raml v. Creighton Univ., 8:08CV419, 2009 WL 3335929, at *3 (D. Neb. Oct. 15, 2009), aff'd, 2009 WL 3837623 (D. Neb. 2009) (denying protective order and noting that where the plaintiff had presented evidence demonstrating the president of defendant university was likely to possess relevant information, “[t]he plaintiff [wa]s entitled to test [the university president's] professed lack of knowledge”). Similarly, the mere fact that Mr. Collins may possesses more relevant day-to-day knowledge than Mr. Donnelly and Mr. Holleran, does not itself establish good cause for a protective order. See, Wells v. Lamplight, No. C13-4070, 2015 WL 225815, at *3 (N.D. Iowa Jan. 16, 2015) (emphasis in original) (“Simply because other [of the defendant's] employees may have more knowledge regarding the subject, does not insulate [the CEO] from testifying regarding his knowledge.”).

Similarly, good cause for a protective order is not established by Plaintiffs purported failure to exhaust other less intrusive ways of obtaining the same information. Defendants contend that good cause exists because Plaintiffs have noticed, but not yet conducted, depositions of several lower-level employees. However, Plaintiffs are not required to depose every lower-level employee with knowledge before deposing Mr. Donnelly and Mr. Holleran. See, Comprehensive Pharmacy Servs., LLC, 2018 WL 1762716, at *3 (“Defendant's argument that because [the proposed deponent] is a high executive she should not be subject to deposition until all other means of discovery have been exhausted is simply incorrect.”); Wells, 2015 WL 225815, at *2 (“I do not believe, however, that the apex doctrine requires a litigant to depose every other person having knowledge before deposing the executive officer, if the executive officer played an active role in the issue at hand.”).

*7 Defendants generically assert that they will be burdened if the depositions are permitted, and they generically contend that the proposed depositions of Mr. Donnelly and Mr. Holleran are “nothing more than an effort of harassment and a fishing expedition.” (See, e.g., Mem. in Supp. [Docket No. 203], at 20; Mem. in Supp. [Docket No. 207], at 12). Defendants’ generic assertions here too fail to establish good cause. See, City of Pontiac Gen. Emps. Retirement Sys. v. Wal-Mart, Inc., 5:12-cv-5162, 2017 WL 5068161, at *2 (W.D. Ark. May 11, 2017) (“[The defendant's] general and conclusory assertion that deposing [its CEO] would create an undue burden does not establish good cause for a protective order.”).

Defendants have repeatedly directed this Court to its own order in Bombardier, 2014 WL 5685463, in support of their contention that good cause for a protective order exists here. However, this Court is very familiar with Bombardier, and it is readily factually distinguishable from the present circumstances. In that earlier patent infringement case, a protective order precluding the deposition of the plaintiff's CEO was granted because the CEO had not been shown to possess any relevant, unique first-hand knowledge regarding the alleged infringing designs at issue. Although the defendant asserted that the plaintiff's CEO was “intimately involved” in creating a particular model of snowmobile, the evidence actually presented in Bombardier, supra, did not demonstrate any such unique knowledge. The plaintiff's CEO simply attended some meetings, made a vague, generalized statement in a marketing brochure, and was cc'd on documents, but nothing indicated he possessed any unique knowledge that was not also possessed by others. (Id. at *3). The plaintiff's CEO also test drove the snowmobile “and made notes of his lay subjective, comparative thoughts regarding the experience,” but that limited involvement was merely from a user's point of view and was not relevant to the underlying patent infringement claims. (Id. at *4). In short, the plaintiff's CEO in that case had no material involvement.

Here, by contrast, a threshold showing has been made as to Mr. Donnelly and Mr. Holleran's material involvement in making executive level decisions regarding the production of at-issue products that are relevant to Plaintiff's asserted claims. Therefore, the Court finds that Defendants have not shown good cause exists for the protective orders. See, Comprehensive Pharmacy Servs., LLC, 2018 WL 1762716, at *3 (granting motion to compel and denying motion to quash where a threshold showing had been made that a parent company CEO was materially involved in relevant decision making); Wells, 2015 WL 225815, at *2 (granting a protective order in reference to parent company CEOs who merely received reports containing relevant information, but denying a protective order in reference to the defendant's CEO who was kept closely informed, gave input, and “provided final approval”); E.E.O.C. v. JBS USA, LLC, 8:10CV318, 2012 WL 5328735, at *2 (D. Neb. Oct. 29, 2012) (denying protective order where a CEO had a reputation as a hands-on manager, was briefed on relevant events, and may have offered opinions on the situation); Raml, 2009 WL 3335929, at *3 (denying motion for protective order where had it had been demonstrated that lower-level employees reported to the university president, and the university president “retained the ultimate authority” to direct actions related to employee grievances).

Nevertheless, on the present record, it has only been shown that Mr. Donnelly and Mr. Holleran had limited personal involvement. Neither Mr. Donnelly nor Mr. Holleran had any day-to-day involvement, and their unique first-hand, non-repetitive knowledge is limited to the exercise of their decision-making authority. The fact discovery depositions of Mr. Donnelly and Mr. Holleran are limited to their own personal knowledge and are not a substitute for potential Rule 30(b)(6) depositions of corporate Defendant-designated deponents. Thus, the depositions of Mr. Donnelly and Mr. Holleran shall be limited in scope to inquiring into only the exercise of their decision-making authority. Specifically, Plaintiffs may inquire only into: (1) decisions made by Mr. Donnelly and Mr. Holleran which are relevant to the issues in this case; (2) the information as it was presented to them on which they relied in making those decisions; and (3) their rationale and motives behind making those decisions. The depositions shall further be limited to 4.5 hours each, and if Defendants so desire, the depositions shall occur via video conference.

III. CONCLUSION

*8 For the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED: