Somers v. Digital Realty Trust Inc et al

Filing 171

ORDER by Judge Kandis A. Westmore Regarding 164 Fifth Discovery Letter; Denying 165 Defendants' Motion to Strike Fifth Discovery Letter. (kawlc2, COURT STAFF) (Filed on 12/8/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PAUL SOMERS,

Case No. 14-cv-05180-EMC (KAW)

Plaintiff,
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v.
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DIGITAL REALTY TRUST INC, et al.,
Defendants.

Re: Dkt. Nos. 164, 165

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United States District Court
Northern District of California

ORDER REGARDING FIFTH
DISCOVERY LETTER; DENYING
DEFENDANTS' MOTION TO STRIKE
FIFTH DISCOVERY LETTER

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On November 28, 2016, Plaintiff Somers filed a joint discovery letter, regarding a dispute

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over the deposition of Mr. Scott Peterson. (Discovery Letter, Dkt. No. 164.) Mr. Peterson is a co-

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founder of Defendant Digital Realty Trust, Inc., and its Chief Investment Officer. (Id. at 4.)

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Plaintiff seeks to compel Mr. Peterson's deposition, while Defendants request that the Court enter

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a protective order prohibiting Plaintiff from noticing Mr. Peterson's deposition. (Id. at 4, 5.) On

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November 29, 2016, Defendants filed objections and a motion to strike, on the ground that the

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joint discovery letter filed by Plaintiff made material omissions and substantive changes, including

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modifying the order of paragraphs and omitting a declaration by Mr. Peterson. (Mot. to Strike,

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Dkt. No. 165.) The Court deems the matter suitable for disposition without hearing pursuant to

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Civil Local Rule 7-1(b). Having reviewed the papers filed by the parties and the relevant legal

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authority, the Court resolves the parties' discovery disputes as set forth below.

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I.

LEGAL STANDARD

Federal Rule of Civil Procedure 30(a)(1) provides that, subject to certain limitations, "[a]

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party may, by oral questions, depose any person, including a party, without leave of court . . . ."

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Per Rule 26(c)(1), however, "[t]he court may, for good cause, issue an order to protect a party or

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person from annoyance, embarrassment, oppression, or undue burden or expense . . . ." The party

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seeking the protective order has the burden of showing good cause by "demonstrating harm or

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prejudice that will result from the discovery." Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th

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Cir. 2004).

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"When a party seeks the deposition of a high-level executive (a so-called 'apex'

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deposition), the court may exercise its discretion under the federal rules to limit discovery."

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Affinity Labs of Tex. v. Apple, Inc., No. C 09-4436 CW, 2011 WL 1753982, at *15 (N.D. Cal. May

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9, 2011); see also Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012). Such

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discretion may be warranted because "such discovery creates a tremendous potential for abuse or

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harassment." Apple Inc., 282 F.R.D. at 263 (internal quotation omitted). In deciding whether an
apex deposition may proceed, courts consider: (1) whether the deponent has unique, first-hand,

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non-repetitive knowledge of the facts at issue in the case, and (2) whether the party seeking the

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deposition has exhausted less intrusive discovery methods. Id. Thus, "[w]here a high-level

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decision maker removed from the daily subjects of the litigation has no unique personal

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knowledge of the facts at issue, a deposition of the official is improper." Groupion, LLC v.

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Groupon, Inc., No. 11-870 MEJ, 2012 WL 359699, at *2 (N.D. Cal. Feb. 2, 2012) (internal

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quotation omitted). This is especially the case where the information sought can be obtained

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through less intrusive discovery methods, such as by interrogatory or depositions of lower-level

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employees with more direct knowledge of the facts at issue. Id. Courts in this district have,

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however, reiterated that "it is very unusual for a court to prohibit the taking of a deposition

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altogether absent extraordinary circumstances. When a witness has personal knowledge of facts

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relevant to the lawsuit, even a corporate president or CEO is subject to deposition." Apple Inc.,

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282 F.R.D. at 263 (internal quotation omitted); see also Powertech Tech., Inc. v. Tessera, Inc., No.

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C 11-6121 CW, 2013 WL 3884254, at *1 (N.D. Cal. July 26, 2013).

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II.

DISCUSSION

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In the instant case, Plaintiff seeks to depose Mr. Peterson, who is a co-founder and senior

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executive of Digital Realty. (Discovery Letter at 4.) Plaintiff contends that following Plaintiff's

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termination, Mr. Peterson called Plaintiff on his personal cell phone to try and resolve the situation

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before a lawsuit could be filed. (Id. at 3.) During this phone call, Mr. Peterson allegedly
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"communicate[d] his dismay at Plaintiff's termination," "assist[ed] in getting meetings set up with

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the CEO in San Francisco and the new regional head in Singapore," "discuss[ed] the

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circumstances of Plaintiff's termination and the false allegation of misconduct against Plaintiff,"

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"g[a]ve Plaintiff insight into his views on employees in human resources," and "discuss[ed] a

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settlement agreement" with Plaintiff. (Id. at 3-4.) Mr. Peterson, in turn, has submitted a

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declaration which states that he was not involved in the decision to hire or terminate Plaintiff, and

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that he has no personal knowledge of the circumstances resulting in Plaintiff's termination.

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(Peterson Decl. ¶¶ 3-4, Dkt. No. 165-2.) Mr. Peterson also states that his phone call with Plaintiff

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was done solely to explore a settlement possibility, and that he did not communicate dismay, assist
in setting up any meetings, discuss the circumstances of Plaintiff's termination, or give Plaintiff

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insight into employees in human resources. (Peterson Decl. ¶¶ 5-6.)

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The Court finds that Mr. Peterson does not have first-hand knowledge of the relevant facts

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in this case. Plaintiff's complaint concerns his termination on the basis of allegedly false claims of

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misconduct, which occurred after Plaintiff complained to senior management about discriminatory

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actions by his superior, Mr. Kris Kumar. (First Amended Compl. ¶¶ 15, 22, 23, 24, FAC, Dkt. No.

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51.) He also alleges disparate treatment "because of his failure to conform to a male sex-

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stereotype," and that Defendants engaged in defamation by stating that Plaintiff violated company

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policies, was a poor performer, violated Singapore law, and violated immigration laws. (FAC ¶¶

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29, 68.) Based on Plaintiff's own description of Mr. Peterson's relevant knowledge, however,

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there is no showing that Mr. Peterson has first-hand knowledge of any of these events.1 (See

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Discovery Letter at 4.) Mr. Peterson has also stated under penalty of perjury that he was not

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involved in hiring Plaintiff, managing his performance, or terminating his employment. (Peterson

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Decl. ¶ 3.) At most, Mr. Peterson contacted Plaintiff to discuss his termination and a possibility of

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settlement, but Plaintiff does not suggest that Mr. Peterson had any unique, first-hand information

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Plaintiff cites to "[c]opies of Plaintiff's interactions with Mr. Peterson" in support of his request
to depose Mr. Peterson, but does not attach any of these exhibits. (See Discovery Letter at 4.)
Because Plaintiff did not provide these exhibits to either the Court or Defendants, the Court cannot
consider these exhibits. (See Discovery Letter at 6 ("Defendants note that Defendants have not
seen Plaintiff's exhibits").
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about the events that occurred prior to his termination, or about the termination itself. Instead, Mr.

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Peterson's unique, first-hand knowledge is, based on Plaintiff's own description of Mr. Peterson's

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expected testimony, limited solely to his post-termination communications with Plaintiff, when

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Mr. Peterson was attempting to settle Plaintiff's claims. Such communications would not be

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admissible in this action to prove liability for any claim that Mr. Peterson was attempting to settle.

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See Fed. R. Evid. 408 ("Evidence of [a settlement offer or negotiations regarding a claim] is not

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admissible . . . to prove liability for, invalidity of, or amount of a claim that was disputed as to

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validity or amount").
Moreover, even if Mr. Peterson had first-hand information regarding the circumstances of

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Plaintiff's termination and any alleged defamation, the Court is not persuaded that Mr. Peterson

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has unique knowledge of such events. Plaintiff's complaint focuses on actions taken by other

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individuals such as Mr. Kumar, Mr. Grant Yabsley, Ms. Amandine Wang, Mr. Adil Atlassey, and

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Defendant Jacobs. (See FAC ¶ 33.) Thus, Plaintiff can depose individuals who were directly

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involved or witnesses to the alleged discriminatory events and termination, or the claimed

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defamation. In the alternative, Plaintiff can notice a Rule 30(b)(6) deposition directed to Digital

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Realty itself, who would then be required to designate an individual to testify on its behalf. Such a

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deposition, however, would not require Mr. Peterson to be the designated individual. In short,

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there are less-intrusive discovery methods that Plaintiff can engage in to obtain relevant

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information.
Accordingly, the Court DENIES Plaintiff's request to depose Mr. Peterson, and GRANTS

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Defendants' request for a protective order.

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The Court has also reviewed Defendants' motion to strike the discovery letter. Following

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the filing of Defendants' motion, Plaintiff filed Mr. Peterson's declaration, which Plaintiff states

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was inadvertently left out of the original filing. (Dkt. No. 166.) Because the Court has ruled on

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the joint discovery letter, the Court DENIES Defendants' motion to strike as moot. The parties are

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advised, however, that joint letters must be approved and signed by both parties prior to filing, and

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that parties are not to make modifications to the other party's portion of a joint letter absent

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express permission by the other party.

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IT IS SO ORDERED.

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Dated: December 8, 2016
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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