Moore et al v. Weinstein Company, LLC et al

Filing 229

ORDER: Deft's 194 Motion for a Protective Order Precluding the Deposition of Norman Lear is GRANTED. Signed by Magistrate Judge Joe Brown on 7/12/11. (rd)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SAMUEL DAVID MOORE,
JOYCE ELLEN MOORE, and
THE SJM TRUST,
Plaintiffs
v.
THE WEINSTEIN COMPANY, LLC,
d/b/a DIMENSION FILMS;
METRO-GOLDWYN-MAYER
STUDIOS, INC.; GENIUS
PRODUCTS, LLC; and CONCORD
MUSIC GROUP, INC.,
Defendants.

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No. 3:09-cv-166
Judge Trauger
Magistrate Judge Brown

MEMORANDUM AND ORDER
Defendant Concord Music Group, Inc. (“Concord”) has filed a Motion to Quash or, in the
alternative, for Protective Order precluding the deposition of Norman Lear (“Lear”). (Docket
Entry 194). Concord has filed a memorandum in support of its Motion. (Docket Entry 196).
Plaintiffs Samuel David Moore, Joyce Ellen Moore, and The SJM Trust (“Plaintiffs”) have filed
a Response. (Docket Entry 212). Concord has additionally filed a Reply Brief. (Docket Entry
224). For the reasons stated below, Concord’s Motion for a Protective Order precluding Lear’s
deposition is GRANTED.
I. INTRODUCTION AND BACKGROUND
This discovery dispute arises out of an action for right of publicity, invasion of privacy,
unfair competition, unjust enrichment, trademark dilution, and civil conspiracy filed by Plaintiffs
against The Weinstein Company, LLC (“Weinstein”), Metro-Goldwyn-Mayer Studios, Inc.,
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Genius Products, LLC, and Concord (together, “Defendants”). (Pl.’s Am. Compl., Docket Entry
146). The action stems out of Dimension Films’ production of the movie “Soul Men” (“Movie”)
and its soundtrack (“Soundtrack”), and their resemblance to the music and career of Samuel
David Moore (hereinafter referred to as “Sam Moore” to distinguish from plaintiff with the same
last name). Id. Concord, through its Stax record label which it acquired in 2005, is the producer
and distributor of the Soundtrack. (Id. at ¶ 2).
Norman Lear is 88 years old and the current chairman and CEO of Concord. (Declaration
of Norman Lear (“Lear Decl.”) at 1, Docket Entry 193). In their response to Defendants’ Joint
First Set of Interrogatories, Plaintiffs listed Lear as a person who “may have knowledge of facts,
information or circumstances related . . . to the subject matter of [their] claims.” (Def.’s Ex. 7 at
2-3).1 Plaintiffs claim that because Lear is the owner of Concord and a long time leader in the
entertainment industry, he would have knowledge of the “work and reputation” of Sam Moore.
(Id. at 3). Plaintiff also contend that Lear’s position in the entertainment industry makes him
uniquely qualified to provide perspective on Sam Moore’s professional career and “impact and
contribution to American culture.” (Declaration of Joyce Ellen Moore (Pl.’s Ex. B) (“J. Moore
Decl.”) at ¶ 15).
Plaintiffs first subpoenaed Lear on March 22, 2011 to be deposed on May 3, 2011.
(Def.’s Ex. 1 at 1). On April 21, 2011, Defendants’ counsel Robb Harvey (“Harvey”) sent
Plaintiffs’ counsel Arnold Lutzker (“Lutzker”) an email stating that they were “working to
accommodate” the scheduling request, after which Lutzker withdrew the deposition notice.

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All defense exhibits are those provided in its Memorandum in Support of the Motion to
Quash, Docket Entry 194.
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(Declaration of Arnold Lutzker ( “Lutzker Decl.”) at ¶ ¶ 7-8). Lutzker alleges that the
withdrawal was “in deference to scheduling issues” with the defendants but that he clearly
intended to reschedule the deposition. (Id. at ¶ 8). Plaintiffs attempted to reschedule the
deposition for June 23. (Def.’s Ex. 3 at 1).
On May 26, 2011, defense counsel Heather Hubbard first indicated that Concord might
object to the taking of Lear’s deposition. (Lutzker Decl. at ¶ 12). On May 31, 2011, Harvey had
indicated to Lutzker that Lear’s only available June date for the deposition would be June 23 but
that he “might seek a protective order” for Lear. (Lutzker Decl. Ex. 6 at 4).2 On June 3, 2011, an
Amended Notice of Deposition for Lear was served on Concord’s counsel. (Lutzker Decl. at ¶
13). On June 2, 2011, the undersigned granted Concord leave to file this Motion to Quash.
(Docket Entry 192).
Lear’s career in the entertainment industry spans more than fifty years, including
producing the hit shows “All in the Family,” “Sanford and Son,” “The Jeffersons,” and many
others. (Lear Decl. at ¶ 2). As Chairman of Concord, he does not participate in or manage its
day-to-day activities and is generally not involved in its development or execution of specific
projects. (Id. at ¶ ¶ 4-5). Lear claims to have had no involvement in Concord’s negotiations with
Weinstein or any other party regarding the production, acquisition of licensing of rights,
marketing, advertising, or distribution of the Movie or the Soundtrack. (Id. at ¶ ¶ 6-8).
Lear and Sam Moore have met on several occasions, including at the opening of the Ray
Charles Memorial Library in Los Angeles in September 2010. (Id. at ¶ 9). According to Sam

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The Lutzker Declaration contains ten attached exhibits. The Lutzker Declaration and
attached exhibits are all marked as Plaintiff’s Exhibit A in its Response to the Motion to Quash.
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Moore’s deposition, the two did not discuss the Movie or the Soundtrack at that gathering but
merely took a few pictures and talked casually. (Def.’s Ex. 8 at 3). Sam Moore was never a
recording artist on the Stax label but was merely “loaned” to them in the 1960's. (Def.’s Reply
Br. at 3, n.4). The only other alleged meeting between Lear and Sam Moore occurred in August
2005 when the two shared a hug after a Ray Charles tribute concert. (J. Moore Decl. at ¶ 8).
According to Joyce Ellen Moore, Roger Friedman, a journalist and subpoenaed deponent in this
case, told her that he spoke with Lear about this lawsuit in early 2011. (Id. at ¶ 13).3
In its Initial Disclosure, Concord listed four employees as likely to have discoverable
information: Collin Stanbeck, former Vice President of A&R, regarding the Soundtrack; John
Baldi, Vice President of Music Publishing and Master Licensing, regarding the publishing and
licensing of the Soundtrack; and Jeffrey Spector and Michelle Smith, Product Managers,
regarding marketing and advertising related to the Soundtrack. (Def.’s Ex. 5 at 2-3).
II. LEGAL ANALYSIS
Defendant Concord objects to the taking of Lear’s deposition on the grounds that, as an
“apex executive,” Lear’s deposition would be unduly burdensome, unlikely to lead to any
relevant information, and unnecessary, as any pertinent information could be obtained through
other employees pre-designated as potential deponents. In their response, Plaintiffs claim that
Lear does possess enough relevant information to warrant his deposition and that Concord
waived its right to object to taking Lear’s deposition. The undersigned finds that the “apex

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Defendants have attempted to subpoena Roger Friedman as a witness based on
Plaintiff’s initial disclosures. He was finally served with process on Defendants’ third attempt
but has not yet complied with the subpoena.
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doctrine” precludes Plaintiffs from taking Lear’s deposition and that Concord objected to the
taking of Lear’s deposition in a timely manner.
A.

The “Apex Doctrine” Precludes Plaintiffs From Taking Lear’s Deposition
Federal Rule of Civil Procedure (“FRCP” or “Federal Rules”) 30(a)(1) allows a party to

depose “any person,” including a party. FED. R. CIV. P. 30(a)(1). The Federal Rules allow
discovery that is “relevant to any party’s claim or defense.” FED. R. CIV. P. 26(b)(1). Discovery
sought is limited to the extent that it might be “unreasonably cumulative or duplicative” or can
be more easily obtained and less burdensome through another source. FED. R. CIV. P.
26(b)(2)(C)(i).
In the Sixth Circuit, the “apex doctrine” has been used to shield high-level corporate
officials from unnecessary or burdensome depositions, especially for non-parties. See HCP
Laguna Creek CA, LP v. Sunrise Senior Living Mgmt., Inc., No. 3-10-0220, 2010 WL 890874, at
*4 (M.D. Tenn. Mar. 8, 2010). The doctrine protects a CEO or other executive from depositions
unless that executive has “unique or special knowledge” of the facts at issue in the case and other
less burdensome avenues for obtaining the discovery have been exhausted. Id. (holding that a
non-party CEO could be deposed because he possessed unique knowledge of the case through a
conference call with defendant’s and third-party defendant’s CEO’s). Depositions of lower level
employees with more intimate knowledge of facts should generally be taken first unless the party
requesting the executive’s deposition has demonstrated that the executive has unique personal
knowledge of the matters in the lawsuit. Zoroufie v. Lance, Inc., Civil No. 07-2016-B/P, 2008
WL 1767729, at *2 (W.D. Tenn. Apr. 15, 2008) (citing Conti v. Am. Axle and Mfg., Inc., No. 0572335, 2007 WL 850998, at *2 (E.D. Mich. Mar. 16, 2007)) (granting a protective order for

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defendant’s CEO when the CEO had no direct knowledge of the facts of the lawsuit that could
not be obtained from the defendant’s Rule 30(b)(6) witness).
Written depositions might be useful to provide additional information when a first oral
deposition demonstrates that an executive does not have unique personal knowledge of the
events at issue. Wagner v. Novartis Pharmaceuticals Corp., No. 3:07-CV-129, 2007 WL
3341845, at *3 (E.D. Tenn. Nov. 8, 2007). However, the apex doctrine still protects an initial
deposition, recognizing the unique position of high-level executives and the “potential for
harassment and abuse inherent on subjecting them to discovery burdens.” Jones Co. Homes, LLC
v. Laborers Int’l Union of North America, No. 10-mc-50989, 2010 WL 5439747, at *2 (E.D.
Mich. Dec. 28, 2010) (Slip copy).
Plaintiffs claim that Norman Lear can provide a unique perspective and opinion on Sam
Moore’s career in the entertainment industry, including his effect on American culture through
his music and the effect that the film “Soul Men” has had on his life. (Pl.’s Resp. at 6).
Specifically, Plaintiffs claim that they want to question Lear about “the damages to Mr. Moore’s
reputation caused by the Movie.” Id. Because of Lear’s sterling reputation and experience in the
entertainment industry, Plaintiffs believe that his unique perspective will lead to material
testimony regarding Sam Moore’s specific reputational injury.
What Plaintiffs have overlooked regarding the apex doctrine is the need for an executive
to possess unique and personal knowledge of facts relating to the events at issue. Lear has
declared, and Concord has emphasized, that Lear had no involvement with the production,
marketing, advertising, or licensing of the movie “Soul Men.” (Lear Decl. at ¶ ¶ 6-8). Any
opinions that Lear might have regarding the damage to Sam Moore’s reputation are not, from the

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factual record, based on anything other than his own opining and speculation. This lack of
specific knowledge is exactly the kind of discovery abuse that the first prong of the apex doctrine
was designed to protect; Lear has no specific knowledge of this project, has not spoken to Sam
Moore about the project, and has no knowledge of this litigation other than a hearsay statement
regarding Roger Friedman from Joyce Ellen Moore’s declaration. To Plaintiffs’ assertion that
they should be “entitled to test the statements in [Lear’s] declaration by taking his deposition,”
Plaintiffs are reasoning in a circle – specific knowledge of facts at issue must be shown before
deposing an executive, not after that executive has already provided all relevant information
through such a declaration. To allow Plaintiffs to depose Lear to determine whether his
statements are accurate is to swallow up the apex doctrine entirely.
Furthermore, Plaintiffs have also not satisfied the second prong of the apex doctrine by
showing that the testimony they seek from Lear cannot be obtained through other means.
Concord has identified four of its employees likely to have specific personal knowledge of the
Soundtrack and its production, marketing, advertising, and licensing. (Def.’s Ex. 5 at 2-3). To
the extent that Plaintiffs are truly interested in obtaining relevant information about the
Soundtrack’s production and licensing, they should depose those individuals whom Concord
identified in their initial disclosures. Id.
B.

Concord Has Not Waived Its Right to Object to the Taking of Lear’s Deposition
Plaintiffs claim that Defendants waived their right to object to Lear’s deposition because

they only raised their formal objection after Plaintiffs had already attempted to serve Lear with a
subpoena. (Pl.’s Resp. at 1). Plaintiffs claim that Concord’s objection was “tardy” and that
granting it would “unfairly prejudice” Plaintiffs at this stage of discovery. (Id. at 4). Plaintiffs

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have cited no case law or procedural rules supporting their claims that Concord should have
raised their objections at an earlier time.
A district court’s decisions to issue a protective order are “within the broad discretion” of
the district court managing the case. Lewelling v. Farmers Ins. of Columbus, Inc., 879 F.2d 212,
218 (6th Cir. 1989). Concord filed its Motion for a Protective Order on June 10, 2011 (Docket
Entry 194), thirteen days prior to the date Lear’s deposition was to be taken. Concord advised
Plaintiffs on May 26, 2011 that it was considering filing this Motion and obtained leave to do so
on June 2, 2011. In light of this reasonable time frame and the undersigned’s belief that Plaintiffs
can obtain relevant information from sources other than Lear, Concord’s objection to the taking
of Lear’s deposition has not unfairly prejudiced Plaintiffs.
III. CONCLUSION
For the reasons stated above, Defendant Concord Music Group, Inc.’s Motion for a
Protective Order Precluding the Deposition of Norman Lear (Docket Entry 194) is GRANTED.
It is so ORDERED.

ENTERED this 12 th day of July, 2011.

/S/Joe B. Brown
Joe B. Brown
United States Magistrate Judge

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