Performance Sales & Marketing, LLC, Iredell County et al

Filing 167

ORDER granting 149 Motion to Compel. Court limits the scope of depositions of Robert Niblock, Greg Bridgeford, and Robert Hull to each individual's personal knowledge of the consolidation and eventual elimination of the vender service groups. Signed by Magistrate Judge Dennis Howell on 11/9/2011. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:07cv140
PERFORMANCE SALES &
)
MARKETING, LLC, a North Carolina
Limited Liability Company; PSM
GROUP, INC., a North Carolina
Corporation; an GREG SEREY, an
individual,

)
)
)
)
)
)
Plaintiffs,
)
)
v.
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)
LOWE’S COMPANIES, INC.,
)
)
Defendant.
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___________________________________ )

ORDER

Pending before the Court is Plaintiffs’ Motion to Compel [# 149]. Plaintiffs
move to compel the depositions of three executives at Lowe’s Companies, Inc.
(“Lowe’s”).1

Upon a review of the record, and after consideration of the parties’

briefs and all of the supporting materials submitted to the Court, the Court
GRANTS the Plaintiffs’ motion [# 149].

I.

Analysis

1

Initially, Plaintiffs sought to compel the depositions of four individuals. In its Reply in
Support of Plaintiffs’ Motion to Compel (“Pls.’ Reply”), Plaintiffs withdrew their motion to
compel the testimony of Perry Jennings. (Pls.’ Reply at p. 2 n.1.)
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Generally speaking, parties are entitled to discovery regarding any nonprivileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1).
“Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Id.
Subject to Rule 30(a)(2)’s specific limitations, a party may depose any person
without leave of court and may compel the deponent’s attendance at the deposition
by subpoena under Rule 45. Fed. R. Civ. P. 30(a)(1). The deponent may then
move to quash the subpoena. Fed. R. Civ. P. 45(c)(3). In addition, Rule 26(b)(2)
permits the Court to limit the extent of discovery in certain circumstances, and
Rule 26(c)(1) allows the Court to enter a protective order limiting discovery. Fed.
R. Civ. P. 26(b)(c) & (c)(1).
A deponent may not ordinarily “escape examination by denying
knowledge of any relevant facts, since the party seeking to take the deposition is
entitled to test the witness’s lack of knowledge.” 8A Charles Alan Wright, Arthur
R. Miller, Mary Kay Kane, Richard L. Marcus, Federal Practice & Procedure §
2037 (3d. 2010). Some courts, however, have granted protective orders and
limited or prohibited the deposition of high level corporate officers who are
unlikely to possess any “personal familiarity with the facts of the case.” Id. This
rule is intended to protect busy, high level executives who lack any personal or

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unique knowledge of the claims at issue from the burden, inconvenience, and
potentially harassing nature of a deposition where the information sought may be
more easily obtained from a lower level corporate employee. See Minter v. Wells
Fargo Bank, N.A., 258 F.R.D. 118, 125-26 (D. Md. 2009); Folwell v. Hernandez,
210 F.R.D. 169, 173-74 (M.D.N.C. 2002); Reif v. CNA, 248 F.R.D. 448, 451-54
(E.D. Pa. 2008) (collecting cases).
[T]he . . . rule is bottomed on the . . . executive lacking any knowledge
of the relevant facts. The rule is aimed to prevent the high level official
deposition that is sought simply because he is the CEO or agency headthe top official, not because of any special knowledge of, or involvement
in, the matter in dispute.
Minter, 258 F.R.D. at 126 (emphasis in original).
Cognizant of the potential for abuse and harassment from allowing the
deposition of the CEO or other high level corporate executives at large public
companies such as Lowe’s, the Court finds that allowing the limited deposition of
the three Lowe’s executives is warranted in this case. As a threshold matter,
Plaintiffs are not seeking to depose these executives simply because of their
positions, and the depositions are not intended to harass, embarrass, or burden the
deponents. Instead, Plaintiffs seek to depose these executives as to their personal
knowledge regarding Lowe’s plan to consolidate and eliminate the vender service
groups, as well as their personal involvement, if any, in this decision. The Court

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finds that Plaintiffs have demonstrated that each of these individuals may possess
personal knowledge of facts relevant to this dispute. Accordingly, a limited
deposition of the three executives is warranted. The Court GRANTS the Motion
to Compel [# 149]. The Court, however, limits the scope of the depositions of
Robert Niblock, Greg Bridgeford, and Robert Hull to their personal knowledge of
the consolidation and elimination of the vender service groups.
II.

Conclusion

The Court GRANTS the Motion to Compel [# 149]. The Court limits the
scope of the depositions of Robert Niblock, Greg Bridgeford, and Robert Hull to
each individual’s personal knowledge of the consolidation and eventual
elimination of the vender service groups.

Signed: November 9, 2011

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