Waymo LLC v. Uber Technologies, Inc. et al

Filing 833

ORDER RE: APEX DEPOSITIONS. Signed by Magistrate Judge Jacqueline Scott Corley on 7/7/2017. (ahm, COURT STAFF) (Filed on 7/7/2017)

Case 3:17-cv-00939-WHA Document 833 Filed 07/07/17 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WAYMO LLC,
Plaintiff,

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Docket Nos. 783, 811, 827
UBER TECHNOLOGIES, INC., et al.,
Defendants.

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United States District Court
Northern District of California

ORDER RE: APEX DEPOSITIONS

v.

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Case No.17-cv-00939-WHA (JSC)

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Uber seeks to depose certain Google/Alphabet executives. Waymo insists that no
depositions are appropriate.
LEGAL STANDARD

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“Absent extraordinary circumstances, it is very unusual for a court to prohibit the taking of

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a deposition.” Groupion, LLC v. Groupon, Inc., No. 11–0870 MEJ, 2012 WL 359699, at *2

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(N.D.Cal. Feb. 2, 2012) (citation omitted). As a result, a “party seeking to prevent a deposition

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carries a heavy burden to show why discovery should be denied.” Apple Inc. v. Samsung Elecs.

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Co., 282 F.R.D. 259, 263 (N.D.Cal.2012) (citations omitted). However, “[w]hen a party seeks the

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deposition of a high-level executive (a so-called ‘apex’ deposition), courts have ‘observed that

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such discovery creates a tremendous potential for abuse or harassment.’” Apple, Inc., 282 F.R.D.

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at 262 (citing Celerity, Inc. v. Ultra Clean Holding, Inc., No. C 05–4374 MMC (JL), 2007 WL

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205067, at *3 (N.D.Cal. Jan. 25, 2007)). Still, “[w]hen 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.” Id. (citation

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omitted).

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“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)

Case 3:17-cv-00939-WHA Document 833 Filed 07/07/17 Page 2 of 3

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whether the party seeking the deposition has exhausted other less intrusive discovery methods.” In

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re Google Litig., 2011 WL 4985279, at *2 (citations omitted). The party seeking to take the

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deposition need not prove conclusively that the deponent certainly has unique non-repetitive

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information; rather, “where a corporate officer may have any first-hand knowledge of relevant

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facts, the deposition should be allowed.” Grateful Dead Prods. v. Sagan, No. C 06–7727(JW)

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PVT, 2007 WL 2155693, at *1 n.5 (N.D.Cal. 2007) (emphasis in original); see also Powertech

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Techs., Inc. v. Tessera, No. C 11–6121 CW, 2013 WL 3884254, at *1 (N.D.Cal. July 26, 2013)

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(noting that the party seeking the deposition “was not required to prove that [the deponent]

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certainly has [relevant] information”).

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As for the second consideration—less intrusive discovery methods—these may include

United States District Court
Northern District of California

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interrogatories. Groupion, LLC, 2012 WL 359669, at *2. Formal “exhaustion” of other

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requirements is not “an absolute requirement; instead, exhaustion of other discovery methods is an

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important, but not dispositive, consideration for a court to take into account in deciding how to

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exercise its discretion.” Hunt v. Continental Cas. Co., No. 13–cv–05966–HSG, 2015 WL

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1518067, at *2 (N.D. Cal. Apr. 3, 2015). Even when the apex doctrine is at issue, however, “the

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burden remains on the party” seeking to avoid the deposition. See Hunt, 2015 WL 1518067, at *1

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n.1 (disagreeing with defendant's argument that it was the plaintiff's burden to establish good

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cause for an order compelling an apex deposition, as “cases in this district make clear that the

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burden remains on the party seeking a protective order when the ‘apex doctrine’ is asserted as a

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basis for limiting discovery” (citations omitted)). A claimed lack of knowledge, by itself, or the

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fact that the apex witness has a busy schedule, are both insufficient bases to foreclose otherwise

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proper discovery. Groupion, LLC, 2012 WL 359699, at *2.

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RULING
As set forth in Uber’s letter brief, Larry Page has first-hand non-repetitive knowledge of

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relevant facts. Further, less intrusive means, such as interrogatories, are not sufficient. Waymo’s

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reliance on the Court’s earlier ruling is insufficient. That ruling was based upon the need for

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limited discovery related to the preliminary injunction hearing and was not a ruling that Mr. Page

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would not be deposed during the merits discovery. No such limitations are present now. Further,
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Case 3:17-cv-00939-WHA Document 833 Filed 07/07/17 Page 3 of 3

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Waymo states only that it has no current intent to call Mr. Page as a witness. Thus, it appears

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Waymo wants to reserve the right to call him as a witness (to perhaps contradict what Mr.

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Kalanick says about their conversations) and yet shield him from deposition. Defendants may take

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Mr. Page’s deposition for up to four hours.

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Uber does not need to take David Drummond’s deposition regarding why Google did not

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partner with Uber; that is a topic on which they are deposing Mr. Page. However, Uber also seeks

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his testimony regarding conversations that he had with Mr. Kalanick and the Court will allow his

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deposition on that topic, as well as his knowledge of the Uber/Otto deal. Waymo may avoid Mr.

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Drummond’s deposition if it stipulates that Mr. Drummond will not offer testimony on summary
judgment or at trial and thus will not contradict any testimony of Mr. Kalanick or other Uber

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United States District Court
Northern District of California

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officials regarding Mr. Drummond’s statements or knowledge. But unless Waymo is willing to so

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stipulate, it is unfair to preclude Mr. Drummond’s deposition. This deposition, too, is limited to

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four hours.

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Uber has not noticed the depositions of any other apex witness and thus has declined to

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make any argument as to why additional depositions are needed. Waymo argues that given that

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potential deponents are high-level executives they have limited availability. The Court notes that

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Waymo has demanded that the United States District Court for the Northern District of California

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expend enormous resources to resolve myriad disputes on an expedited basis, on the grounds that

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this case is especially important. Given that position, the Court expects that Waymo’s executives

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could take time out of their schedules to sit for a deposition, assuming they have relevant non-

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repetitive information.

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This Order disposes of Docket Nos. 783, 811, 827.

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IT IS SO ORDERED.

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Dated: July 7, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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