Nucap Industries Inc. et al v. ROBERT BOSCH LLC et al

Filing 993

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 12/7/2017. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NUCAP INDUSTRIES INC. and
NUCAP US INC.,
Plaintiffs,
v.
ROBERT BOSCH LLC, BOSCH
BRAKE COMPONENTS LLC, and
ROBERT BOSCH GMBH,
Defendants.

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No. 15 CV 2207

Magistrate Judge Young B. Kim

December 7, 2017

MEMORANDUM OPINION and ORDER
Before the court is Defendants’ motion for a protective order barring the
deposition of Volkmar Denner, Chairman of the Board of Management of Defendant
Robert Bosch GmbH (“Bosch GmbH”). For the following reasons, the motion is
granted without prejudice to Plaintiffs seeking leave to re-notice Denner’s
deposition if and when they can demonstrate a need for it:
Background
The facts in this case are set forth in previous orders resolving the parties’
motions for summary judgment and motions to dismiss, so the court need not repeat
them at length here. See Nucap Indus., Inc. v. Robert Bosch LLC, No. 15 CV 2207,
2017 WL 1197104, at *2-6 (N.D. Ill. Mar. 31, 2017); see also Nucap Indus., Inc. v.
Robert Bosch LLC, No. 15 CV 2207, 2017 WL 3581174, at *1-5 (N.D. Ill. Aug. 18,
2017). Briefly, Plaintiffs sold brake components to Defendants from 2008 until their
business relationship soured and came to an end in November 2014. See Nucap

Indus., 2017 WL 1197104, at *2-3. The parties have differing views on what led
Bosch GmbH, a German limited liability company and indirect parent of Robert
Bosch, LLC (“Bosch”) and Bosch Brake Components, LLC (“Bosch Brake”), to
terminate their relationship. (See R. 961, Pls.’ Opp. at 2.) According to Plaintiffs,
Defendants’ decision to end the parties’ business dealings in 2014 “is central to the
claims, counterclaims, and defenses in this case[,]” and Plaintiffs argue that Denner
is likely to have knowledge on this topic.

(Id. at 4.)

Defendants contend that

Denner has no relevant and unique personal knowledge relating to Plaintiffs’ claims
and that any such information can be obtained through less burdensome means.
(R. 914, Defs.’ Mot. at 1-2; R. 978, Defs.’ Reply at 2.)
Analysis
Federal Rule of Civil Procedure 26(b)(1) allows parties to “obtain discovery
regarding any non-privileged matter that is relevant to any party’s claim or
defense,” and public policy favors disclosure of relevant materials. See Patterson v.
Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002). Rule 26(c)(1) also allows
district courts to issue a protective order limiting discovery to protect a party from
oppression, undue burden, or expense for good cause. Before doing so, the court
must consider the totality of the circumstances and weigh the value of the material
sought against the burden of providing it. Patterson, 281 F.3d at 681 (citations
omitted).
When it comes to determining who bears the burden of showing good cause in
the case of deposing high-level executives, federal courts have adopted varying

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approaches.

See Iain D. Johnston, Apex Witnesses Claim They Are Too Big to

Depose, Litigation, American Bar Association, Vol. 41, No. 1 (Fall 2014), available at
https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_judges/johnston/apexwit
nessdepose.pdf (“Apex Witnesses”) (collecting cases).

Bosch GmbH asserts that

Plaintiffs bear the burden of showing both that Denner is likely to possess relevant,
unique personal knowledge and that less intrusive avenues of discovery have been
exhausted. (R. 914, Defs.’ Mot. at 3-5.) Meanwhile Plaintiffs argue that Bosch
GmbH has the burden of demonstrating that “extraordinary circumstances” justify
granting a protective order.

(R. 961, Pls.’ Opp. at 2 (internal quotation marks

omitted).) Both parties seek to apply the “apex doctrine,” a framework used by
some courts to analyze whether to allow the depositions of high-ranking senior
executives or officials. See, e.g., Finisar Corp v. Nistica, Inc., No. 13-3345, 2015 WL
3988132, at *1 (N.D. Cal. June 30, 2015); Powertech Tech., Inc. v. Tessera, Inc.,
No. 11-6121, 2013 WL 3884254, at *1 (N.D. Cal. July 26, 2013).
Although the Seventh Circuit has not formally adopted the apex doctrine,
both parties cite to Patterson in support of their position. In Patterson, the Seventh
Circuit noted that deposing “a high-ranking executive in a multinational
corporation . . . would have been a quite costly and burdensome means” for
determining whether he had information bearing on the claims in the case. 281
F.3d at 681.

The Patterson court also observed in that case that the plaintiff

seeking to depose the executive failed to take advantage of an “inexpensive,
convenient method of discovery, i.e., interrogatories,” which casted “serious doubt”

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over her claim that the executive had information “that was more than marginally
relevant to her civil action.” Id. at 682 (citations omitted). After considering these
factors and the relatively small amount in controversy, the Patterson court affirmed
the district court’s decision not to permit the deposition. Id.
According to Bosch GmbH, Patterson mandates that Denner, an “apex
employee,” must be protected from having to sit for a deposition unless Plaintiffs
can first prove he has unique, non-cumulative, first-hand relevant knowledge that
cannot be obtained by other less intrusive means. (See R. 914, Defs.’ Mot. at 3-4.)
But this view misreads Patterson and contradicts the well-established principle that
the party seeking protection from discovery bears the burden of presenting “a
particular and specific demonstration of fact” as to the need for that protection. See
Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981) (citations omitted); see also
Hodgdon v. Northwestern Univ., 245 F.R.D. 337, 341 (N.D. Ill. 2007) (“[Rule 26]
puts the burden on the party seeking the protective order to show some plainly
adequate reason for its issuance.”); Johnson v. Jung, 242 F.R.D. 481, 483 (N.D. Ill.
2007) (“The burden to show good cause is on the party seeking the protective order.”
(citation omitted)). Rather than shifting the burden to the party seeking discovery,
Patterson merely acknowledged that when weighing the value of the material
sought against the burden of providing it, courts may consider an employee’s “apex”
position and whether less burdensome alternatives are available. See Patterson,
281 F.3d at 681-82. As such, rather than establishing hard and fast requirements,
Patterson confirmed the idea that a court should be sensitive to the risk of abuse

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where an executive has no real information, and as with any other protective order,
“should look for guidance to a balance of the likelihood of oppression or harassment
compared to the value of the inquiry in generating important information.” See
Dyson, Inc. v. Sharkninja Operating LLC, No. 14 CV 779, 2016 WL 1613489, at *1
(N.D. Ill. April 22, 2016) (citation omitted).
Bearing this in mind, the court considers the specific reasons Bosch GmbH
provides for why there is good cause for a protective order. First, according to Bosch
GmbH, Denner had no involvement in the actions giving rise to Plaintiffs’ claims.
(R. 914, Defs.’ Mot. at 1.) Bosch GmbH further contends that less burdensome
avenues, such as issuing written discovery and deposing other witnesses, are
available to Plaintiffs for obtaining the information they seek from Denner. (Id. at
9-13.) Finally, Bosch GmbH argues that sitting for a deposition would be unduly
burdensome and would significantly disrupt Denner’s company obligations. (Id. at
13.) The court addresses each of these reasons in turn.
A.

Denner’s Lack of Involvement
The court finds Bosch GmbH’s evidence that Denner was not involved in the

events at issue persuasive.

First, Bosch GmbH asserts, and Plaintiffs do not

dispute, that Denner “is not identified as an author, sender or recipient of even a
single pre-litigation document . . . of the nearly 3 million pages of documents
exchanged thus far[.]” (R. 914, Defs.’ Mot. at 1.) Plaintiffs also do not dispute that
no other witnesses have suggested that Denner was involved with, or has
knowledge regarding, the central issues in the case. To support its argument, Bosch

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GmbH attaches deposition transcript excerpts from key employees of Defendants
Bosch and Bosch Brake who testified to their lack of contact with Denner. (Id.,
Exs. E & F.) Bosch GmbH also includes affidavits from Lutz Marschall, President
of Bosch Brake, and Eckhard Lichtenthaler, Senior Vice President of the
Automotive Aftermarket Brake Components (“AA-BC”) business unit of Bosch
GmbH, attesting to the fact that Denner was not involved in decisions regarding
Defendants’ business relationship with Plaintiffs, and that they had no
conversations with Denner prior to the lawsuit about that relationship or
Defendants’ efforts to purchase brake components from another group of companies.
(See id., Exs. I & J.) Rather than making “stereotyped and conclusory statements”
regarding Denner’s limited involvement, Bosch GmbH has provided specific support
for its assertion that Denner does not have relevant information.
Plaintiffs attempt to counter Bosch GmbH’s showing by citing to an email
from Marschall regarding the parties’ deteriorating relationship, a letter from
Lichtenthaler with Denner’s name in the footer, Denner’s online bio, a press release
issued after this suit was filed, and Defendants’ counterclaims alleging that
Plaintiffs ceased product shipments “without justification” and “in order to cause
Bosch financial and reputational distress.” (R. 961, Pls.’ Opp. at 5-6.) However, the
court is unconvinced that this evidence shows Denner has more than a remote
relationship to the claims in this case.

As an initial matter, it is unclear why

Defendants’ reasoning for ending their business relationship with Plaintiffs is
“central to the claims, counterclaims, and defenses in this case” as Plaintiffs allege.

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(See R. 961, Pls.’ Opp. at 4.) The court recently held that at this stage in the
proceedings, information regarding the safety of certain brake components and their
alleged role in the dissolution of contractual relations between the parties is
irrelevant. (See R. 951.) But even if the court ultimately determines that such
information is in fact relevant as Plaintiffs urge in their objection to the court’s
order, (R. 956), the evidence Plaintiffs rely on does little to show that Denner has
that information.

Plaintiffs cite an email from Marschall to Ray Arbesman,

Chairman and Owner of Nucap Industries, stating that the parties’ endangered
relationship was a topic that “ha[d] reached board level in Germany.” (R. 961, Pls.’
Opp. at 5.)

However, this vague language does not implicate Denner’s direct

involvement in the matter, nor does it identify which board Marschall is referring to
and what is meant by “reached.” (See R. 978, Defs.’ Reply at 8.)
As for Denner’s name appearing in the company stationery’s footer and
“Corporate Strategy” being listed as one of his responsibilities on Defendants’ web
site, Plaintiffs are grasping at straws.

This is unlike other cases where the

executive is portrayed in marketing materials as being “uniquely ‘hands-on,’” see In
re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2014 WL
257566, at *2 (S.D. Ill. Jan. 23, 2014), or where evidence shows the executive had a
substantial role in the specific decisions at issue, see id.; Jung, 242 F.R.D. at 485.
Here, the mere appearance of Denner’s name in a letterhead (alongside several
other names, presumably board members) and the generic description of his role as
board chairman of a large corporation are insufficient to justify taking his

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deposition. See Bombardier Recreational Prods., Inc. v. Arctic Cat, Inc., No. 12-CV2706 MJD/LIB, 2014 WL 5685463, at *3 (D. Minn. Sept. 24, 2014) (finding
marketing brochure statements “generalized and vague, akin to statements
attributable to any company’s president and/or CEO regardless of his or her level of
involvement”).
Plaintiffs’ argument based on the October 2015 press release also falls short.
As discussed above, the court is not convinced that brake component safety is
relevant to the issues in this case. (See R. 951.) Even if it were, it is unclear how
Bosch GmbH’s public statements on the topic several months after Plaintiffs filed
this lawsuit are relevant, and the court is not persuaded that Plaintiffs’ evidence
regarding the press release justifies Denner’s deposition. For all these reasons, the
court agrees with Bosch GmbH that Denner’s involvement with the issues in this
case is minimal, if any, which favors granting a protective order.
B.

Less Intrusive Means
In support of its contention that Plaintiffs can obtain the information they

seek using less intrusive means, Bosch GmbH points to the fact that Plaintiffs did
not seek written discovery regarding Denner’s alleged involvement in, or knowledge
of, the acts giving rise to their claims. (See id. at 10; R. 978, Defs.’ Reply at 13.)
Bosch GmbH also names several of Defendants’ current and former employees
whose depositions are pending, who it contends were actually involved in the events
at issue and can provide the information Plaintiffs seek. (See R. 914, Defs.’ Mot. at
10-11; R. 978, Defs.’ Reply at 13-14.)

Plaintiffs argue in response that other

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deponents are not on the Bosch GmbH board and cannot provide the same highlevel information that Denner can.

(See R. 961, Pls.’ Opp. at 11-12.)

But for

reasons already discussed, Plaintiffs have not adequately explained why board-level
testimony is relevant. At any rate, Plaintiffs themselves concede that completing
depositions of lower-ranking Bosch GmbH employees first could result in more
efficient depositions of higher-level witnesses later, if permitted. (See id. at 13.)
The court thus agrees with Bosch GmbH that Plaintiffs should first seek testimony
from other accessible deponents who are more likely to have relevant information
than Denner.
C.

Burden on Denner
Finally, Bosch GmbH argues that a deposition would be unduly burdensome

for Denner given his busy schedule and would be “extremely disruptive” to his
company obligations. (See R. 914, Defs.’ Mot. at 13.) This is Bosch GmbH’s weakest
argument, betrayed in part by the fact that it occupies only one paragraph in Bosch
GmbH’s opening brief. (See id.) Indeed, many courts have given short shrift to
arguments based on a high-ranking executive’s self-described busyness. See, e.g.,
Jung, 242 F.R.D. at 486 (“As with the President of the United States . . . scheduling,
not prohibition, accommodates and harmonizes the inevitably competing interests
involved in discovery matters.”); Johnston, Apex Witnesses, supra, at 4-5 (collecting
cases).

As hectic as an executive’s schedule might be, “the hypothetical single

parent could make a compelling argument that he is busier than the hypothetical
chief executive officer[.]” Johnston, Apex Witnesses, supra, at 5.

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The more important consideration, as discussed above, is the executive’s
knowledge of relevant information.

Discovery has limits which “‘grow more

formidable as the showing of need decreases.’” See Serrano v. Cintas Corp., 699
F.3d 884, 901 (6th Cir. 2012) (quoting 8A Charles A. Wright & Arthur R. Miller et
al., Federal Practice and Procedure § 2036 (3d ed. 2012)).

“[E]ven very slight

inconvenience may be unreasonable if there is no occasion for the inquiry and it
cannot benefit the party making it.” Id. (internal quotations and citation omitted).
Here, given Plaintiffs’ inability to show that they need to depose Denner, the court
finds that requiring him to provide testimony at this time would impose an undue
burden. That being said, completely prohibiting a deposition is an extraordinary
measure. See 8A Wright & Miller, at § 2037 n.5 (collecting cases). Should Plaintiffs
develop additional evidence showing Denner’s involvement with the relevant facts
and issues in this case, the court will reconsider the need for this protective order.
Conclusion
For the foregoing reasons, Defendants’ motion for a protective order is
granted without prejudice to Plaintiffs seeking leave to re-notice Denner’s
deposition if and when they can demonstrate a need for his deposition.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

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