Protecting against Unnecessary and Harassing Depositions

Writing in the October newsletter of the Advocacy, Practice and Procedure Committee, Ronald H. Isroff of Cleveland's Ulmer & Berne LLP has some pointers on how to protect high-ranking corporate executives: With more and more frequency, counsel representing a corporation in litigation will receive a notice that the opposition wants to depose a high-ranking executive of the client who has little or no knowledge of the issues involved with the litigation. In such situations, the mere knowledge of a notice of deposition can have a chilling effect within the corporation and can significantly impact settlement leverage. Given the general lack of knowledge of the issues on the part of the executive, efforts to take a deposition do not represent a legitimate search for discoverable information, but rather, an attempt to harass the corporate party. What to do? On receipt of the notice, counsel is confronted with a dilemma-either subject the executive to a needless and harassing deposition or seek protection from the court under Federal Rules of Civil Procedure 26 (or a comparable state rule). Short of seeking judicial intervention, however, counsel should first make every informal effort to cancel, or at least postpone, the deposition. These efforts should start by informing opposing counsel that the executive does not have information relevant to the case and is willing to sign an affidavit or respond to interrogatory answers to that effect. This information, in addition to an offer to produce lower level officials, may persuade opposing counsel to forgo the deposition, and at the very at least will begin to make a record that the corporate party stands willing to comply with its legitimate discovery obligations. If opposing counsel insists upon deposing the executive, counsel will be forced to bring a motion to quash or a motion for protective order. Under Federal Rule 26(c), courts have broad discretion to control discovery to prevent a party from suffering annoyance and undue burden and expense: Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person 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... Is there direct knowledge? There is considerable support for the proposition that a high-ranking corporate executive does not have to be subjected to a deposition when the opponent has failed to demonstrate that the executive has direct knowledge of the case. For example, in the seminal case of Salter v. Upjohn Co., 593 F.2d 649 (5th Cir. 1979), the plaintiff in a products liability suit sought to depose the president of Upjohn Corp. …