Kadrey et al v. Meta Platforms, Inc.

Filing 171

Discovery Order re: 162 Joint Discovery Letter Brief regarding Defendant's Motion for Protective Order. Signed by Judge Thomas S. Hixson on 9/24/2024. (tshlc1, COURT STAFF) (Filed on 9/24/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICHARD KADREY, et al.,
Plaintiffs,

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Case No. 23-cv-03417-VC (TSH)
DISCOVERY ORDER

v.

Re: Dkt. No. 162
META PLATFORMS, INC.,
Defendant.

United States District Court
Northern District of California

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Meta moves for a protective order barring the deposition of its CEO, Mark Zuckerberg.
ECF No. 162. The Court denies the motion.

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Under Federal Rule of Civil Procedure 26(c)(1), “[t]he court may, for good cause, issue an

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order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or

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expense,” including by forbidding or limiting a deposition. “When a party seeks the deposition of

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

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creates a tremendous potential for abuse or harassment.” Apple Inc. v. Samsung Electronics Co.,

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Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (cleaned up). “The court therefore has discretion to

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limit discovery where the discovery sought ‘can be obtained from some other source that is more

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convenient, less burdensome, or less expensive.’” Id. (quoting Fed. R. Civ. Proc. 26(b)(2)(C)(i)).

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“In determining whether to allow an apex deposition, courts consider (1) whether the

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deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2)

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

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Finisar Corporation v. Nistica, Inc., 2015 WL 3988132, *1 (N.D. Cal. June 30, 2015) (cleaned

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up). “With respect to the first consideration, the party seeking to take the deposition need not

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prove conclusively that the deponent certainly has unique non-repetitive information; rather,

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where a corporate officer may have any first-hand knowledge of relevant facts, the deposition

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should be allowed.” Id. *2 (cleaned up). With respect to the second consideration, formal

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exhaustion is not “viewed as an absolute requirement.” Hunt v. Continental Casualty Co., 2015

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WL 1518067, *2 (N.D. Cal. April 3, 2015); see also In re Transpacific Passenger Air Transp.

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Antitrust Litig., 2014 WL 939287, *5 (N.D. Cal. March 6, 2014) (noting that exhaustion is a

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consideration, not a requirement). “[I]t is very unusual for a court to prohibit the taking of a

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deposition altogether absent extraordinary circumstances.” Powertech Technology, Inc., Tessera,

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Inc., 2013 WL 3884254 (N.D. Cal. July 26, 2013) (cleaned up).
In this case, Meta “has not met its burden of showing that extraordinary circumstances are

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United States District Court
Northern District of California

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present here which warrant an order precluding” Zuckerberg’s “deposition altogether.” Finisar,

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2015 WL 3988132 at *2.1 Plaintiffs have made an evidentiary showing that Zuckerberg is the

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chief decision maker and policy setter for Meta’s Generative AI branch and the development of

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the large language models at issue in this action. Plaintiffs do not generically argue, as Meta

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suggests, that because Zuckerberg is the CEO of the company that he is therefore in charge of

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everything. Rather, they have submitted evidence of his specific involvement in the company’s AI

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initiatives. Exs. D, E, G. They have submitted evidence indicating Zuckerberg was the principal

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decision maker concerning Meta’s decision to open source the language model. Ex. I. They have

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also submitted evidence of Zuckerberg’s direct supervision of Meta’s AI products. Exs. K, L, M,

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N. This showing justifies an apex deposition.
Given this factual showing, the Court is not going to require Plaintiffs to exhaust other

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forms of discovery before they depose Zuckerberg. They’ve made a solid case that this deposition

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is worth taking.

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Accordingly, Meta’s motion is DENIED.

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IT IS SO ORDERED.

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Dated: September 24, 2024

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THOMAS S. HIXSON
United States Magistrate Judge

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Meta’s motion is all-or-nothing. If Zuckerberg’s deposition is to proceed, Meta does not propose
to limit it to less than the default rule of seven hours.
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