*1 On May 1, 2023, the Court held a hearing on Plaintiff's motion to compel responses to interrogatories and Defendants' motion for a protective order regarding the deposition of Carrie Tolstedt. Dkt. Nos. 89, 90. This Order follows.

A. Interrogatory Nos. 3 and 4

The Court GRANTS IN PART Plaintiff's motion to compel responses to Interrogatory Nos. 3 and 4. As limited by Plaintiff, these interrogatories seek information pertaining to litigation holds applicable to 15 specific custodians for the time period July 1, 2013 to present. Subpart (4) of Interrogatory No. 3 also seeks identification of documents that should have been preserved through litigation holds but were not.

The Federal Rules of Civil Procedure permit a broad scope of discovery: “Parties 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). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401.

“If the party requesting discovery is dissatisfied with any of the responses, the party may move to compel further responses by informing the court which discovery requests are the subject of the motion to compel, and, for each disputed response, inform the court why the information sought is relevant and why the opposing party's objections are not justified.” Heilman v. Cook, No. 14-CV-01412-JLS-AGS, 2017 WL 491737, at *1 (S.D. Cal. Feb. 6, 2017) (citation omitted). “The party seeking to compel discovery has the burden of establishing that its request satisfies the relevance requirement of Rule 26.” FlowRider Surf, Ltd. v. Pacific Surf Designs, Inc., No. 15-cv-1879-BEN-BLM, 2016 WL 6522807, at *2 (S.D. Cal. Nov. 3, 2016). “Thereafter, the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining, and supporting its objections.” Id. (citations omitted).

The Court concludes that the information sought in Interrogatory Nos. 3 and 4 regarding litigation holds issued to specific custodians is relevant to a claim or defense within the scope of Federal Rule of Civil Procedure 26 because the deletion of documents subject to litigation holds may be probative of the Wells Fargo employees' intent. The Court makes no finding as to whether any such deletions occurred, but Plaintiff should be allowed to develop this issue through focused discovery.[1]

*2 The Court disagrees with Defendants' contention that the litigation hold information sought in Interrogatory Nos. 3 and 4 is protected by the attorney-client privilege. “[P]reservation notices, if prepared by counsel and directed to the client, are protected by the attorney-client privilege.” Shenwick v. Twitter, Inc., No. 16-CV-05314-JST (SK), 2018 WL 833085, at *4 (N.D. Cal. Feb. 7, 2018). But while a litigation hold memorandum or letter may be privileged, the existence of the litigation hold is not. See In re eBay Seller Antitrust Litigation, No. C 07-01882 JF (RS), 2007 WL 2852364, at *1-2 (N.D. Cal. Oct. 2, 2007) (noting that while litigation holds themselves include privileged and work product protected material, it is untenable “to foreclose any inquiry into the contents of those notices at deposition or through other means”); Cannata v. Wyndham Worldwide Corp., No. 2:10–cv–00068–PMP–LRL, 2011 WL 3495987, at *2-3 (D. Nev. Aug. 10, 2011) (ordering production of information where “plaintiffs seek answers concerning what has actually happened in this case, i.e., when and to whom the litigation hold letter was given, what kinds and categories of ESI were included in defendants' litigation hold letter, and what specific actions defendants' employees were instructed to take to that end”).

Defendants assert the interrogatories are unduly burdensome, but they have not provided adequate information to substantiate that objection. As noted above, Plaintiff has narrowed the information sought to 15 custodians over a 10-year period. Nevertheless, the Court concludes that subpart (4) of Interrogatory No. 3 – which would require Defendants to identify every “category or type of Custodian data or Documents, or individual Custodian Documents, which You are aware should have been preserved according to the terms of an applicable Legal Hold but which was not preserved” – is overly broad and not proportional to the needs of the case. As such, the Court denies Plaintiff's motion to compel with respect to this subpart. Defendants shall respond to the remainder of Interrogatory No. 3 and the entirety of Interrogatory No. 4 by not later than May 19, 2023.

B. Interrogatory Nos. 5 and 6

The Court DENIES Plaintiff's motion to compel further responses to Interrogatory Nos. 5 and 6 for the reasons stated at the May 1 hearing. These interrogatories seek information regarding “each policy or practice that Wells Fargo had in place to incentivize its employees to open accounts or penalize employees for opening an insufficient number of accounts.” Defendants deny the existence of any such policies or practices and have responded accordingly. Plaintiff contends those responses are insufficient because Plaintiff believes the policies and practices existed.

Rule 37 authorizes a motion to compel where “a party fails to answer an interrogatory,” including instances where the party provides “an evasive or incomplete [ ] answer.” Fed. R. Civ. P. 37(a)(3)(B)(iii) and (a)(4). Here, the parties disagree as to whether Wells Fargo maintained polices or practices incentivizing employees to open accounts. Plaintiff's disagreement with the accuracy of Defendants' verified interrogatory responses is not a basis to move to compel a “more accurate” response under Rule 37. See, e.g., Trujillo v. Bd. of Educ. of the Albuquerque Pub. Sch., No. CIV. 02-1146 JB/LFG, 2007 WL 1306593, at *8 (D.N.M. Mar. 12, 2007) (“The Court concludes that Trujillo is merely challenging the factual accuracy of APS' [interrogatory] response, and the Court will not resolve factual challenges in a motion to compel.”); Barnum v. Equifax Info. Servs., LLC, No. 216CV02866RFBNJK, 2018 WL 1245492, at *2 (D. Nev. Mar. 9, 2018) (denying motion to compel interrogatory responses where “Plaintiffs' counsel's skepticism as to [responses'] accuracy is not grounds to compel a further response.”).

Plaintiff has issued a subpoena for the deposition of Carrie Tolstedt, the former head of Wells Fargo's Community Bank division. The deposition is noticed to take place in the District of Arizona.[2] Dkt. No. 90-3 at 5. Defendants seek a protective order precluding the deposition under Rule 26(c)(1) on the ground that Tolstedt was a high-level Wells Fargo employee and that the relevant factors weigh against allowing this “apex” deposition.[3]

*3 Rule 26(c)(1) provides that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including forbidding a deposition. “The burden is upon the party seeking the order to ‘show good cause’ by demonstrating harm or prejudice that will result from the discovery.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004).

“When a party seeks to take the deposition of an official at the highest level or ‘apex’ of a corporation a stricter standard applies to the party seeking discovery, and the court may exercise its authority under the federal rules to limit discovery.” Moyle v. Liberty Mut. Ret. Ben. Plan, No. 10CV2179-DMS MDD, 2012 WL 5373421, at *3 (S.D. Cal. Oct. 30, 2012). “In determining whether to allow an apex deposition, courts consider (1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods.” Id. “The apex doctrine recognizes that depositions of high-level officers severely burden[ ] those officers and the entities they represent, and that adversaries might use this severe burden to their unfair advantage.” In re: Valeant Pharms. Int'l, Inc. Sec. Litig., No. 16CV07321MASLHG, 2021 WL 3140030, at *9 (D.N.J. July 7, 2021). Similarly, “the deposition of a high-level executive ... creates a tremendous potential for abuse or harassment.” Apple Inc. v. Samsung Elecs. Co., Ltd, 282 F.R.D. 259, 263 (N.D. Cal. 2012). That said, “it is very unusual for a court to prohibit the taking of a deposition altogether absent extraordinary circumstances,” id. at 263 (citation omitted), and “when a witness has personal knowledge of facts relevant to the lawsuit, even a corporate president or CEO is subject to deposition.” Id. (citing WebSideStory, Inc. v. NetRatings, Inc., No. 06CV408 WQH(AJB), 2007 WL 1120567, at *2 (S.D. Cal. Apr. 6, 2007)).

The parties agree that Ms. Tolstedt is an “apex” deponent by virtue of her former position as head of Wells Fargo's Community Banking division and that the apex doctrine applies notwithstanding that her employment with Wells Fargo ended in 2016. See Moyle, 2012 WL 5373421, at *3 (“Former executives ... are within the scope of the apex doctrine”); Robertson v. McNeil-PPC Inc., No. LACV1109050JAKSSX, 2014 WL 12576817, at *17 (C.D. Cal. Jan. 13, 2014). Although the policy reasons underlying the apex doctrine might not apply with equal force to former executives in all situations, the Court concludes that Ms. Tolstedt's deposition is appropriate under the relevant factors regardless of her current employment status.

The record indicates that Ms. Tolstedt possesses relevant, first-hand knowledge of Wells Fargo's account opening. As set forth in a court filing in the Central District of California, Ms. Tolstedt has admitted that she was in charge of Wells Fargo's Community Banking division from 2007 to 2016 and that sales practices misconduct known as “gaming” existed within the division, “including the opening of accounts or financial products managed by the Community Bank that were unauthorized or fraudulent.” Dkt. No. 90-6 at 8-9. Moreover, Ms. Tolstedt has admitted that she “was aware of sales practices misconduct within the Community Bank and aware of the fact that employees were terminated each year for gaming.” Id. at 9. Based on these and other admitted facts in the referenced court filing, the Court concludes that Ms. Tolstedt has firsthand knowledge of facts relevant to this matter. Moyle, 2012 WL 5373421, at *3.

*4 Wells Fargo asserts that Plaintiff should be required to depose the Community Bank regional bankers and their direct supervisors before deposing Ms. Tolstedt. But Plaintiff explains that he has attempted to obtain information relevant to Wells Fargo's policies and practices pertaining to account opening misconduct through written discovery and by deposing Wells Fargo's Rule 30(b)(6) designee. In addition, Plaintiff has deposed the Wells Fargo bankers who were involved with the Triangle Enterprise and Apex Enterprise accounts. It is possible that other witnesses may have relevant knowledge of the Community Bank's policies and practices; however, “there is no absolute requirement that a party exhaust all alternative, ‘less burdensome’ means of discovery before proceeding with the deposition of a high ranking government official.” Shiferaw v. City & Cnty. of San Francisco, No. 18CV06830SBAJSC, 2021 WL 827575, at *2 (N.D. Cal. Mar. 4, 2021) (granting motion to compel deposition of San Francisco mayor); see Monster Energy Co. v. Vital Pharms., Inc., No. 518CV01882JGBSHK, 2021 WL 3524128, at *3 (C.D. Cal. May 26, 2021) (“Nor has formal ‘exhaustion’ been viewed as an absolute requirement; instead, exhaustion of other discovery methods is an important, but not dispositive, consideration for a court to take into account in deciding how to exercise its discretion.”). Under the circumstances presented, the Court concludes that Plaintiff has taken appropriate steps to obtain the discovery through other means and that a protective order precluding the deposition of Ms. Tolstedt is not warranted under Rule 26(c)(1).

For the foregoing reasons, the Court GRANTS IN PART Plaintiff's motion to compel further responses to Interrogatory Nos. 3 and 4 and directs Defendants to respond to Interrogatory No. 3 and Interrogatory No. 4 consistent with the terms of this Order by not later than May 19, 2023. The Court DENIES Plaintiff's motion to compel further responses to Interrogatory Nos. 5 and 6. The Court DENIES Defendants' motion for a protective order precluding the deposition of Ms. Tolstedt.

IT IS SO ORDERED.