FORD MOTOR COMPANY v. EDGEWOOD PROPERTIES, INC.,

Filing 512

OPINION. Signed by Judge William J. Martini on 6/23/11. (gh, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

FORD MOTOR COMPANY, ET AL.,
Plaintiffs/Counterclaim
Defendants,

Civ. No. 06-1278
OPINION
HON. WILLIAM J. MARTINI

v.
EDGEWOOD PROPERTIES, INC.,
Defendant/Counterclaimant.

WILLIAM J. MARTINI, U.S.D.J.:
This matter comes before the Court on Defendant-Counterclaimant Edgewood
Properties, Inc.’s (“Edgewood”) appeal (Docket Entry No. 450) of Magistrate Judge
Salas’s February 15, 2011 Order (Docket Entry No. 440), granting in part and denying in
part Plaintiff-Counterclaim Defendant Ford Motor Company’s (“Ford”) motion for a
protective order to prevent the depositions of William C. Ford, Jr., Roman Krygier, and
Donat Leclair (Docket Entry No. 381). There was no oral argument. Fed. R. Civ. P. 78.
For the reasons that follow, Plaintiffs’ appeal is DENIED, and Judge Salas’s Order
granting in part and denying in part Plaintiff-Counterclaim Defendant’s motion for a
protective order is AFFIRMED.

I.

FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the distribution of contaminated concrete from the

demolition of a Ford Motor Company (“Ford”) assembly plant in Edison, New Jersey (the
“Edison Plaint”) in 2004. Ford contracted with MIG/Alberici, LLC (“MIG/Alberici”) to
conduct the demolition and properly dispose of the concrete. Ford then entered into an
agreement with Edgewood Properties, Inc. (“Edgewood”), whereby Ford agreed to
provide 50,000 cubic yards of concrete to Edgewood in exchange for Edgewood hauling
it off the site. Edgewood then used the concrete as backfill on seven commercial property
sites that they were developing (the “Seven Properties”). The parties later determined
that the concrete was contaminated. As such, Ford brought claims against Edgewood
under the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. § 9601 et seq. (“CERCLA”), and Section 58:10-23, 11f
(a)(2) of the New Jersey Spill Act for contribution and indemnification for all costs as
provided under the contract. Edgewood, in turn, asserted cross-claims, counterclaims and
a third-party complaint against Ford and other involved parties, which include claims for
breach of contract, contribution, negligent misrepresentation, and civil conspiracy.
The instant dispute arises out of Edgewood’s October 20, 2010 and October 26,
2010 notices of depositions of: (1) Mr. William C. Ford, Jr., Ford’s Executive Chairman
and Chairman of Ford’s Board of Directors; (2) Mr. Roman Krygier, Ford’s former Group
Vice President of Global Manufacturing from 2001 until 2005; and (3) Mr. Donat Leclair,

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Ford’s former Chief Financial Officer (“CFO”) from August 2003 to November 2008.
(Judge Salas’s February 15, 2011 Opinion, hereinafter “Op.,” at 2.) Edgewood seeks to
depose Mr. Ford, Mr. Krygier and Mr. Leclair (the “Ford Executives”) about the sale,
decommissioning and remediation of the Edison Plant. (Op. at 2.) In response, on
November 22, 2010, Ford filed a motion for a protective order (Docket Entry No. 381) to
prevent Edgewood from deposing the Ford Executives. Judge Salas held on February 15,
2011, that Mr. Ford and Mr. Leclair do not have any personal, unique, or superior
knowledge about the sale, decommissioning and remediation of the Edison Plant, and
granted Ford’s request for protective orders as to them. As to Mr. Krygier, however,
Judge Salas found that he does have personal and superior knowledge of such facts, and
denied Ford’s motion as to him.1
III.

DISCUSSION
Federal Rule of Civil Procedure 26(c) permits a court to limit the scope of

discovery, including the scope of depositions, by entering a protective order. A court may
enter a protective order upon a showing of good cause in order “to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense,
including . . . [an order] (A) forbidding the [deposition]; (B) specifying terms . . . for the

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As to Mr. Krygier, while Judge Salas denied Ford’s motion for a protective order, she
did limit Edgewood’s request for Mr. Krygier’s “personal calendar and any documents referring
or relating to [his] travel history between June 1, 2004 and July 31, 2006.” Judge Salas instead
required that Mr. Krygier “produce a list which will summarize the dates in which Mr. Krygier
traveled to the Edison Site from June 1, 2001 through July 31, 2006.” (Op. at 8.)
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disclosure or discovery; ... [and] (D) forbidding inquiry into certain matters, or limiting
the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c). Ford
requested a protective order here because the Ford Executives do not possess unique,
personal knowledge of the facts at issue, and Edgewood’s attempt to depose the Ford
Executives is burdensome and harassing. (Op. at 4.) Judge Salas agreed as to Mr. Ford
and Mr. Leclair, but not as to Mr. Krygier, and held that protective orders were
appropriate for Mr. Ford and Mr. Leclair only. On appeal, Edgewood argues that (1)
Judge Salas misapplied the requirements for a party seeking a protective order; (2) the
evidence submitted by Ford is insufficient to support a request for a protective order; and
(3) depositions of the Ford Executives are necessary in light of other witnesses’ lack of
knowledge.
A.

Standard of Review

A district court may reverse a Magistrate Judge’s order if it finds the ruling to be
clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a);
L. Civ. R. 72.1(c)(1)(A). The district court is bound by the clearly erroneous rule as to
findings of fact, while the phrase “contrary to law” indicates plenary review as to matters
of law. Haines v. Liggett Group Inc., 975 F.2d 81, 91 (3d Cir. 1992). A finding is
considered “clearly erroneous” when, “although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364,

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395 (1948). A decision is considered contrary to law if the magistrate judge has
“misinterpreted or misapplied applicable law.” Doe v. Hartford Life Acc. Ins. Co., 237
F.R.D. 545, 548 (D.N.J. 2006).
B.

Applicable Legal Standard for Granting a Protective Order

Edgewood argues that Judge Salas erroneously applied a heightened legal standard
to Edgewood’s subpoenas in granting Ford’s motion for a protective order as to Mr. Ford
and Mr. Leclair. (Edgewood’s Ap. Br. at 17.) Specifically, Edgewood claims that Judge
Salas erroneously relied on Ford’s characterization of the depositions as “apex”
depositions that were unnecessary since the Ford Executives did not have “superior
knowledge,” and on Ford’s implication that Edgewood had a burden to show that the
information sought cannot be obtained from another source. (Ap. Br. at 16-17.) Ford,
however, argues that Judge Salas applied the correct legal standard in finding that the
evidence presented by Ford justified the issuance of a protective order for Mr. Ford and
Mr. Leclair, because Judge Salas’s decision was premised on a finding that Mr. Ford and
Mr. Leclair lack personal and unique knowledge of the facts at issue in this litigation.
The Court agrees.
Edgewood claims that Judge Salas erroneously applied a requirement that the Ford
Executives need to possess “superior knowledge” of relevant facts in order to be deposed.
Edgewood further argues that Judge Salas put the burden on Edgewood to show such
superior knowledge. However, looking to Judge Salas’s Opinion, neither was required as

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a basis of her decision. Judge Salas properly recognized that “[c]ourts in this circuit
consider two factors when assessing whether the deposition of a high-ranking corporate
officer, executive or manager is appropriate: (1) whether the executive or top-level
employee has personal or unique knowledge on relevant subject matters; and (2) whether
the information sought can ‘be obtained from lower[-]level employees or through less
burdensome means, such as interrogatories.’” (Op. at 3 (quoting Reif v. CNA, 248 F.R.D.
448, 451(E.D. Pa. 2008).) Judge Salas then looked to the evidence on the record and
found that based on the evidence, Mr. Ford and Mr. Leclair did not “possess personal,
unique or superior knowledge about the sale, decommissioning and remediation of the
Edison Plant.” (Op. at 8 (emphasis added).) Furthermore, though Edgewood points to
Ford’s request that the burden be on Edgewood to show that the Ford Executives have
unique or superior information, Judge Salas clearly states that “Ford has met its burden”
in showing that a protective order with respect to Mr. Ford and Mr. Leclair is appropriate.
(Op. at 8.) Finally, Judge Salas’s ruling relied in part on her finding that Mr. Ford and
Mr. Leclair do not have personal or unique knowledge about relevant facts at issue,
whereas the courts in the cases cited by Edgewood all found that the executives in
question did have personal or unique knowledge. See Otsuka Pharm. Co. v. Apotex
Corp., Civ. No. 07-1000, 2008 U.S. Dist. LEXIS 73515, at *16 (D.N.J. Sept. 12, 2008)
(allowing deposition of witness due to “unique knowledge”); Johnson v. Jung, 242 F.R.D.
481, 485 (N.D. Ill. 2007) (denying protective order where evidence suggested

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“knowledge of the incidents forming the basis of plaintiff’s claim,” as well as “personal
involvement in the decision-making process”); In re Bridgestone/Firestone, Inc. Tires
Prods. Liab. Litig., 205 F.R.D. 535, 536 (S.D. Ind. 2002) (court points to evidence of
“personal knowledge of and involvement in certain relevant matters” in denying
protective order); Six West Retail Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 203
F.R.D. 98, 104 (S.D.N.Y. 2001) (protective order denied where the court found executive
had “some unique knowledge” that was relevant). As such, the Court finds that Judge
Salas properly applied the legal standard regarding whether a protective order should be
granted.
C.

Sufficiency of Ford’s Evidence

Additionally, Edgewood argues that even if Judge Salas applied the correct
standard and burden, Ford’s proffered evidence was insufficient to support its request for
a protective order. (Ap. Br. at 22.) Specifically, Edgewood contends that an internal
memorandum dated June 14, 2004 (the “June 14 Memorandum”), seeking Mr. Ford’s
approval to sell and decommission the Edison Plant, shows that Mr. Ford and Mr. Leclair
had personal and unique knowledge.
The Court is satisfied that Judge Salas properly evaluated the sufficiency of Ford’s
evidence. Judge Salas recognized that Mr. Ford and Mr. Leclair’s signatures were on the
June 14 Memorandum, but was “not persuaded that their signature alone qualifies as
personal or unique knowledge.” (Op. at 8.) Additionally, Judge Salas found that the

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mere need for lower-level executives to seek approval from Mr. Ford and Mr. Leclair for
various decisions did not overcome Mr. Ford’s affidavit and Mr. Leclair’s declaration
supporting Ford’s contention that they do not have personal knowledge of any relevant
facts. (Op. at 4, 8.) Judge Salas carefully evaluated the evidence presented by Ford,
specifically the affidavit and declaration asserting no personal knowledge of relevant
facts, and weighed it against Edgewood’s evidence that Mr. Ford and Mr. Leclair did
have personal and unique knowledge of relevant facts. Notably, the same analysis of the
evidence came out the other way for Mr. Krieger, as Judge Salas found that his
involvement went beyond the June 14 Memorandum and showed he had unique
knowledge of relevant facts. (Op. at 7.) While Edgewood may disagree with Judge
Salas’s findings as to Mr. Ford and Mr. Leclair, Edgewood has not shown that these
findings were clearly erroneous.
D.

Relevancy of Other Witnesses’ Lack of Knowledge

Once Judge Salas determined Mr. Ford and Mr. Leclair had no personal or unique
knowledge as to any relevant facts, she further determined that the information Edgewood
is seeking, namely “facts surrounding the sale, decommissioning and remediation of the
Edison Plant,” is “more appropriately gleaned from other lower-level executives, or
through answers to interrogatories.” (Op. at 8.) Edgewood contends that it was unable to
gain the information sought when other, lower-level executives were deposed. Ford,
however, argues that Edgewood’s depositions of Sean McCourt (a Group Vice President

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of Manufacturing for Ford), Jay Garner (former Vice President of Real Estate at Ford
Land), and Roman Krygier (former Group Vice President) provided Edgewood with
ample opportunity to glean information surrounding the sale of the Edison Plant.
The Court agrees with Judge Salas and Ford that the depositions of Mr. McCourt,
Mr. Garner, and Mr. Krygier are sufficient in light of Judge Salas’s finding that Mr. Ford
and Mr. Leclair lack personal knowledge of the facts surrounding the sale,
decommissioning and remediation of the Edison Plant. Edgewood focuses on Mr. Ford’s
position as the only executive with approval authority regarding the sale of the Edison
Plant, and claims that Mr. Ford himself must be deposed in order to learn why Mr. Ford
approved the sale, what was relied on in making the decision, and who Mr. Ford spoke to
regarding this decision. (Edgewood’s Reply Br. at 1.) However, as Judge Salas relies on
in denying the motion for a protective order as to Mr. Krygier, the relevant information at
issue here is the “various issues surrounding the Edison Plant,” not Mr. Ford’s state of
mind when the approval was made. (Op. at 6-7.) Specifically, in denying the protective
order as to Mr. Krygier, Judge Salas relies on evidence that Mr. Krygier was involved in
discussions regarding the “environmental issues” with the Edison Plant and “information
related to the excavation and demolition of the Edison Plant.” (Op. at 7.) Mr. Ford and
Mr. Leclair have already stated that they had no personal knowledge as to the
decommissioning, cleanup or sale of the Edison Plant site. (Mr. Ford’s Affidavit, Docket
Entry No. 381-2, Ex. 1 ¶¶ 5-6; Mr. Leclair’s Declaration, Docket Entry No. 381-2, Ex. 2

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¶¶ 6-7.) The relevant facts here relate to the environmental issues surrounding the sale
and decommissioning of the Edison Plant, not Mr. Ford’s personal reasons for approving
the sale. Furthermore, Mr. Ford essentially explains his reasoning in his affidavit:
As President and CEO, my role with respect to this transaction was to
provide final review and approval of the appropriation request and
divestiture proposal....Other than this formal approval process, I was not
involved in the decision to sell the Edison Plant to Hartz Mountain, Inc., or
in the negotiations that led to the eventual sale of the Edison Plant.
Morever, my approval of the sale of the Edison Plant would have been
based on the information I received in the June 2004 letter from Sean
McCourt to me, and other similar communications.
(Mr. Ford’s Aff. ¶ 5.) Though Edgewood contends otherwise, Judge Salas made a proper
determination that the relevant information was better sought from lower-level executives
such as Mr. McCourt, and Edgewood has failed to show that this determination was
clearly erroneous.
IV.

CONCLUSION
For the reasons stated above, Defendant-Counterclaimant Edgewood’s appeal is

DENIED, and Judge Salas’s Order granting in part and denying in part PlaintiffCounterclaim Defendant’s motion for a protective order is AFFIRMED. An appropriate
Order accompanies this Opinion.

s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.

Date: June 23, 2011
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