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Tierra Blanca Ranch High Country Youth Program v. Gonzales

United States District Court, D. New Mexico

January 8, 2019

TIERRA BLANCA RANCH HIGH COUNTRY YOUTH PROGRAM, et al., Plaintiffs,
v.
FELIPE GONZALES, Defendant.

          ORDER REGARDING MOTIONS FOR PROTECTIVE ORDER AND TO QUASH SUBPOENAS PURSUANT TO APEX DOCTRINE

          GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Governor Martinez's Motion for Protective Order and to Quash Subpoena (doc. 133), Secretary David Jablonski's Motion for Protective Order and Motion to Quash Subpoena (doc. 136) and Judge Steven Blankinship's Motion for Protective Order and Motion to Quash Subpoena (doc. 139), as well as the attendant briefing (docs. 143, 147, 148, 159, 160, 161).

         I. Background

         During October 2018, Plaintiffs issued subpoenas to Governor Martinez, Secretary Jablonski and Judge Blakinship to testify in depositions in November 2018. Doc. 143-1 at 68; doc. 147-1 at 1; doc. 148-1 at 1. As explained by Plaintiffs, each will be asked to “answer questions regarding [the deponent's] personal knowledge about statements that either [the deponent or their] staff made regarding Tierra Blanca Ranch High County Youth Program and/or Scott and/or Colette Chandler for the timeframe beginning January 2013 up to the date of the receipt of the Subpoena.” Doc. 143 at 1; doc. 147 at 1; doc. 148 at 1. Thereafter, each putative deponent filed a Notice of Non- Appearance at Deposition and Motion for Protective Order and to Quash Subpoena. Docs. 133, 134, 135, 136, 138, 139.

         Each of the deponents asks the Court to apply the “apex doctrine” and argues that, under that doctrine, their deposition should not be permitted. Plaintiffs contend that the Court should not apply the doctrine, but, even if applied, the depositions are proper.

         II. The “Apex Doctrine”

         Before considering whether to apply the “apex doctrine” and, if so, to determine its effect here, the doctrine must be defined. The “apex doctrine” has not been addressed by the Tenth Circuit, yet it has been applied by a variety of federal district courts nationwide.[1] At its most general, the “apex doctrine” provides some protection from depositions to high-level executives and government officials. “The doctrine recognizes that depositions of high-level officers severely burdens those officers and the entities they represent, and that adversaries might use this severe burden to their unfair advantage.” United States ex rel. Galmines v. Novartis Pharmaceuticals Corp., 2015 WL 4973626, at *1 (E.D. Pa. Aug. 20, 2015) (citations omitted). The doctrine is rooted in Federal Rule of Procedure 26 which provides, “the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that … the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive[.]” Fed.R.Civ.P. 26(b)(2)(C); see also Fed. R. Civ. P. 26(b)(1) (“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[.]”) (emphasis added). However, the nature of the doctrine's protection depends on its application.

         Analysis of apex depositions generally falls into two categories. The first category involves only a recognition that a court should remember the burden and potential abuse when targeting high-level executives and officials for depositions. Under this approach, the “apex doctrine” - if it can be called such under this approach - merely highlights considerations which may be applicable when conducting a standard Rule 26 analysis of such depositions. See, e.g., In re C. R. Bard, Inc. Pelvic Repair Sys. Prod. Liability Litig., 2014 WL 12703776, at *4-*5 (S.D.W.Va. June 30, 2014); Van Den Eng v. Coleman Co., Inc., 2005 WL 3776352, at *2 (D.Kan. Oct.21, 2005). The second category applies a “rebuttable presumption that a high-level official's deposition represents a significant burden upon the deponent and that this burden is undue” within the meaning of Rule 26. Galmines, 2015 WL 4973626, at *2. This presumption is rebutted where the official “(1) possesses special or unique information relevant to the issues being litigated, and (2) the information cannot be obtained by a less intrusive method, such as through written discovery or by deposing lower-ranking employees.” Bard, 2014 WL 12703776, at *3. Even within this second category, some courts have differed or been unclear about which party bears the ultimate burden of persuasion when a high-level official invokes the apex doctrine. See, e.g., Id. at *4 (ultimate burden on proponent of deposition “to demonstrate the executive's likely knowledge and to show that less burdensome discovery methods have been or will be unsatisfactory, insufficient, or inadequate”) (citation omitted). However, the more exhaustive opinions have concluded that it falls on the party seeking to preclude the deposition. See, e.g., Naylor Farms, Inc. v. Anadarko OGC Co., 2011 WL 2535067, at *1-2 (D. Colo. June 27, 2011); Galmines, 2015 WL 4973626, at *2. This approach aligns with the general rule that it is the party seeking the protective order who has the burden to show good cause for a protective order. See, e.g., S2 Automation LLC. v. Micron Tech., Inc., 283 F.R.D. 671, 681 (D.N.M. 2012).

         While not explicitly endorsing any particular form of the “apex doctrine, ” several appellate courts have concluded that high-level government officials should not, absent extraordinary circumstances, be called to testify about their official actions. See, e.g., Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 575, 586 (D.C.Cir. 1985); see also In re United States (Holder), 197 F.3d 310, 313 (8th Cir. 1999); In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995); In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993). This principle and the other concerns attendant to apex depositions described above counsel in favor of applying some version of the “apex doctrine.” Having considered the various approaches by trial courts, the undersigned is most persuaded by Judge Mix's approach in Naylor Farms, in which she held that:

Under…the “apex doctrine, ” the Court may protect a high level corporate executive from the burdens of a deposition when any of the following circumstances exist: (1) the executive has no unique personal knowledge of the matter in dispute; (2) the information sought from the executive can be obtained from another witness; (3) the information sought from the executive can be obtained through an alternative discovery method; or (4) sitting for the deposition is a severe hardship for the executive in light of his obligations to his company. […] [T]he party seeking to depose an executive bears an initial burden of making some showing that the executive has “unique personal knowledge” of some relevant issues…. Upon such a showing, the burden shifts to the executive to demonstrate by evidence that he in fact has no unique personal knowledge or that there exists one of the other three circumstances under which requiring him to sit for a deposition is inappropriate.

2011 WL 2535067, at *1-2 (internal citations omitted). The undersigned will apply this version of the “apex doctrine” to the three depositions sought here.

         III. Analysis

         Plaintiffs do not dispute that the three putative deponents are “apex” officials to whom, if the “apex doctrine” applied, the doctrine would apply.[2] Thus, the undersigned will consider first whether Plaintiffs have made an adequate showing that any of the putative deponents have “unique personal knowledge” of facts relevant to any material issue.

         The instant case proceeds solely against Defendant Gonzales, individually and in his capacity as a New Mexico State Police Officer, for deprivations that allegedly occurred on September 30, 2013 on Plaintiff's ranch. See generally doc. 76. Specifically, Plaintiffs seek to recover for unlawful entry and unreasonable search and seizure in violation of the Fourth and Fourteenth ...


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