United States of America, Ex Rel., Thomas F. Jamison v. McKesson Corporation et al

Filing 293

ORDER granting 269 Motion to Compel deposition of Paul Julia.. Signed by Jane M Virden on 7/11/2011. (sef)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
UNITED STATES OF AMERICA,

PLAINTIFF,

v.

CIVIL ACTION NO. 2:08cv214-SA-DAS

MCKESSON CORPORATION, et al. ,

DEFENDANTS.
ORDER

This matter is before the court following a motion by the United States to compel the
depositions of Paul Julian and Gary Muensterman (#269). Defendants, McKesson Corporation
and McKesson Medical Surgical MediNet, Inc., (“McKesson”), have objected to the depositions
on the grounds that Mr. Julian lacks personal knowledge as a corporate executive and that there
are less intrusive discovery tools available to th Government. With regard to Mr. Muensterman,
the Government was informed through McKesson’s response, and has acknowledged, that he is
no longer an employee of the company, thereby rendering that portion of the motion moot.
Regarding the deposition of Mr. Julian, having considered the submissions of the parties, the
record and applicable law, the court finds that the motion is well-taken.
Documents and testimony, particularly deposition testimony on behalf of McKesson’s
30(b)(6) designee Lori Martinez, demonstrate Mr. Julian may have personal knowledge relevant
to this litigation. McKesson argues that Mr. Julian, as a company executive, has very limited
knowledge of the facts at issue and that if he does have knowledge it is available through
alternative discovery methods.
Rule 26(b)(1) of the Federal Rules of Civil Procedure controls the scope of discovery,
“parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s

claim or defense.” Relevance is typically interpreted broadly to allow liberal discovery. The
Fifth Circuit has, in light of this discovery standard, noted that “it is very unusual for a court to
prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an
order would likely be in error.” Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979).
McKesson argues that before a party may depose a senior executive, the party must
demonstrate that the executive has unique and personal knowledge of the facts at issue. In
making this argument, McKesson, likewise, relies on the Fifth Circuit’s decision in Upjohn, that
the trial court did not err in vacating notice to depose a corporation’s president given failure to
exhaust other avenues of discovery. Id.. The court finds, however, that the case at bar is
distinguishable from the facts of Upjohn, given that the Government has demonstrated through
documents and testimony that Mr. Julian may possess personal knowledge relevant to this
litigation. Mr. Julian’s affidavit that he lacks knowledge is insufficient reason for this court to
prohibit his deposition. Additionally, in Upjohn, the plaintiff sought testimony from the
president of the company defendant prior to any attempt to depose lower level employees
designated by the company. Id. The court in Upjohn noted that, “if after taking the other
depositions, plaintiff was still not satisfied...the judge should probably have allowed the
deposition.” Id. at 652. In the current case, it is in fact the testimony of McKesson’s 30(b)(6)
designee as well as documents produced in discovery that have led the United States to seek the
deposition of Mr. Julian.
Given the liberal discovery standard and a party’s right to use depositions as a discovery
tool, along with the Fifth Circuit’s commentary in Upjohn and the minimal burden the deposition
will place on Mr. Julian and McKesson, this court finds that the deposition of Mr. Julian is
warranted and should be allowed.

IT IS, THEREFORE, ORDERED that the motion for leave to depose Mr. Paul Julian (#
269) is hereby GRANTED. Parties are to bear their own costs with regard to the present motion.
SO ORDERED, this the 11th day of July 2011.

/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE