Moody v. Associated Wholesale Grocers, Inc.

Filing 96

MINUTE ORDER for proceedings held before Magistrate Judge Karen Wells Roby: Motion Hearing held on 8/15/2019 re 90 MOTION to Quash and for Protective Order Prohibiting the Deposition of President and CEO, David Smith. IT IS ORDERED tha t the 90 Motion to Quash and for Protective Order is GRANTED IN PART and DENIED IN PART. FURTHER ORDERED that the motion is GRANTED to the extent it seeks a protective order on the time, scope and duration of the deposition. FURTHER ORDERED that t he Plaintiffs provide to the Court a list of deposition topics no later than Thursday, August 15, 2019, at 5:00 p.m. FURTHER ORDERED that the motion is DENIED to the extent it seeks an order from this Court quashing the deposition and to the extent that it seeks the Court impose limitation on the location of the deposition. FURTHER that parties reschedule the deposition to any date prior to the scheduled pretrial conference. Parties must provide the Court the details of the renotice deposition no later than Friday, August 16, 2019, at 10:00 a.m. (Court Reporter Toni Tusa.) (mp)

MINUTE ENTRY
ROBY, M.J.
8/15/2019
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DE’ON MOODY, on behalf of himself and
all other similarly situated

CIVIL ACTION

VERSUS

NO. 17-10290

ASSOCIATED WHOLESALE
GROCERS, INC.

SECTION: “H” (4)

LAW CLERK:
COURT REPORTER:
Appearances:

Destinee Andrews
Toni Tusa

Dale Edward Williams for Plaintiffs.
MaryJo L. Roberts for Defendant.

ORDER
Before the Court is Defendant’s Motion to Quash and For Protective Order
Prohibiting the Deposition of President and CEO, David Smith (R. Doc. 90), originally set for
submission on August 28, 2019. As Plaintiffs have unilaterally noticed the deposition of President
and CEO of Associated Wholesale Grocers Inc. David Smith for Monday, August 19, 2019, and,
as this date precedes Defendant’s motion’s submission date, Defendant sought expedited
consideration, which this Court subsequently granted (R. Doc. 92). On August 15, 2019, at 11:30
a.m. this Court held oral argument on Defendant’s motion via telephonic communications.
Plaintiff De’on Moody filed this suit, as a collective action, in the United States District
Court on October 7, 2017, under the Fair Labor Standards Act (“FLSA”) alleging, inter alia, that

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his former employer, Associated Wholesale Grocers, Inc. (“AWG”), misclassified supervisory or
managerial employees at AWG’s Pearl River facility as exempt and failed to pay them due
overtime compensation and damages. R. Doc. 1. Since that time, seventeen (17) additional former
AWG supervisors have opted-in to the litigation. During the course and scope of discovery, parties
took the depositions of many of the opt-in class members, to include the deposition of Jeffrey Tait,
which took place on July 26, 2019. R. Doc. 90-1, p. 2.
Specifically, in that deposition, Tait testified that in late 2013 or early 2014 he had an inperson conversation with President and CEO David Smith as to the working conditions. Id. Tait
had this conversation with David Smith and in the presence of Human Resource Manager Floyd
Baker to “express concern about the amount of hours that we [Mr. Tait] were working as
supervisors” and to “complain[] about the amount of hours we worked when you transition it to
breaking it down to an hourly pay rate, that it wasn’t fair.” R. Doc. 90, p. 2-3. At the hearing,
Plaintiffs submitted to the Court that David Smith lived in Louisiana at the time of this
conversation and he was Senior Vice President and Division Manager of the Pearl River Facility,
and not the President and CEO.
Defendant states this deposition is unfounded where Tait did not explicitly discuss with
Smith any allegations of misclassification as an exempt employee or any belief that he should not
have been paid on a salary basis, and Mr. Smith has already provided a sworn declaration stating
the same. R. Doc. 90-1, p. 5. Defendant now seeks to quash the subpoena pursuant to the Apex
Doctrine, or, in the alternative, requests the Court enter a protective order to severely limit the
deposition in form, time, and scope. R. Doc. 90-1, p. 1 & 5.
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Specifically, Defendant states that before deposing high-ranking executives, Courts should
first consider whether the information could be obtained from a lower-level employee or through
less burdensome means such as written interrogatories, and Plaintiffs have neither tried to depose
lower level employee Mr. Baker, also present at the meeting, nor attempted to propound written
interrogatories to Mr. Smith or Mr. Baker. Pan American Life Ins. Co. v. Louisiana Acquisitions
Corp., No. 13-5027, 2015 WL 4168435 (Knowles, D.) (E.D. La. July 9, 2015). To this, the Court
disagrees.
The Court is of the opinion that crewmen on a loading dock would not present their
complaints using legal jargon and terms of art such as “exempt employee misclassification.”
Therefore, any argument Defendant makes as to the nonrelevance of Tait and Smith’s conversation
is without merit.
The Court next notes, the Apex Doctrine is not strictly applied in the Fifth Circuit. Id. at
*4. In quashing the deposition, the Court in Pan American explained the only proffered proof of
the high-ranking executive’s personal, superior, or unique knowledge was an email to show the
high-ranking official’s participation of the sale in dispute. Id. at *2. Here, the situation is far
different, the employees, joined in this class, had a personal conversation with Smith in his capacity
as manager of the Pearl River Facility, where he was in charge and where they worked, to discuss
what they believed to be unfair pay. This sufficiently demonstrates Mr. Smith’s firsthand and
personal knowledge. Moreover, the fact that at some point thereafter he was promoted to the
position of President and CEO, this Court consider unique knowledge.

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Based on this knowledge, this Court finds that there are potentially relevant topics of
deposition based on his former role of Senior Vice President and Division Manager of the Pearl
River Facility, as well as his current role as President and CEO with actual foreknowledge of
policies and practices instituted at the Pearl River Facility. As such, the Court denies Defendant’s
request to quash the deposition upon oral examination of Defendant Associated Wholesale
Grocers, Inc. President and CEO David Smith.
The Court, however, remains persuaded by Defendant’s request for a protective order to
limit the scope of the deposition topics. This Court does not permit blanket depositions of highranking business officials. In Matter of Tara Crosby, LLC, No. 17-05391, 2018 WL 3045799 at
*4 (Roby, K.) (E.D. La. 2018). R. Doc. 90-1, p. 7. As such, this Court grants Defendant’s request
for a protective order to limit the time, scope and duration of the deposition, and orders Plaintiffs
to submit to this Court, for in camera review of relevancy, the list of topics on which they wish to
depose David Smith. Plaintiffs are to provide the Court with the list of deposition topics no later
than the end of the business day today, Thursday, August 15, 2019, at 5:00 p.m.
Furthermore, as the conduct in question took place in Louisiana, this Court declines to
order the deposition take place in Kansas City, Kansas. As explained previously, at the hearing,
Plaintiffs made the Court aware of the fact that at the time of this conversation, not only was David
Smith Senior Vice President and Division Manager of the Pearl River Facility, but he lived in
Louisiana. The Court is more inclined to allow a deposition take place where the conduct at issue
occurred, but for now will not command that in hope the parties can come to an agreement among

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themselves. As such, the Court denies Defendant’s request for a protective order to impose a limit
as to the preferred location of the deposition.
In light of this order, the Court requests the parties reset the deposition to a date prior to
the pretrial date and without regard to the July 31, 2019 discovery deadline imposed in the
Scheduling Order (R. Doc. 60). The Court remains expectant that parties can reschedule the
deposition for a date amenable to all parties, and considerate of President and CEO David Smith’s
current schedule, duties, and obligations. The parties are to correspond with the Court no later than
tomorrow, Friday, August 16, 2019, at 10:00 a.m. to apprise the Court of the specific details of the
re-noticed deposition. If the parties are unable to reach a compromise at that time, the Court will
provide dates, times, and a location for the deposition.
Accordingly,
IT IS ORDERED that Defendant’s Motion to Quash and For Protective Order
Prohibiting the Deposition of President and CEO, David Smith (R. Doc. 90) is GRANTED
IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the motion is GRANTED to the extent it seeks a
protective order on the time, scope and duration of the deposition.
IT IS FURTHER ORDERED that Plaintiffs provide to the Court a list of deposition
topics no later than today, Thursday, August 15, 2019, at 5:00 p.m.
IT IS FURTHER ORDERED that the motion is DENIED to the extent it seeks an order
from this Court quashing the deposition and to the extent that it seeks the Court impose limitation
on the location of the deposition.
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IT IS FURTHER ORDERED in light of today’s ruling that parties reschedule the
deposition currently noticed for Monday, August 19, 2019, to any date prior to the scheduled
pretrial conference, and parties provide to the Court the details of the renotice deposition no later
than tomorrow, Friday, August 16, 2019, at 10:00 a.m.

New Orleans, Louisiana, this 15th day of August 2019.

KAREN WELLS ROBY
CHIEF UNITED STATES MAGISTRATE JUDGE

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