Cvent Inc v. RainFocus et al

Filing 350

MEMORANDUM DECISION AND ORDER granting 316 Cvent's Short Form Discovery Motion. Signed by Magistrate Judge Dustin B. Pead on 7/7/20. (dla)

Case 2:17-cv-00230-RJS-DBP Document 350 Filed 07/08/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
Cvent Inc.,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING PLAINTIFF’S
SHORT FORM DISCOVERY MOTION

v.
Case No. 2:17-cv-00230-RJS-DBP
RainFocus,
Chief District Judge Robert J. Shelby
Defendant.
Chief Magistrate Judge Dustin B. Pead
This matter is before the court on Plaintiff Cvent Inc.’s Short Form Discovery Motion. 1
(ECF No. 316.) Cvent moves for “an automatic stay of, and protective order barring, the
depositions of its CEO Reggie Aggarawal and General Counsel Larry Samuelson.” Mtn. p. 2
(emphasis omitted). As set forth below the court will grant the motion. 2
BACKGROUND
This is a case involving allegations of trade secret misappropriation, breach of contract,
intentional interference with contracts, confidential and proprietary information, and trade
secrets. (ECF No. 36.) Plaintiff seeks to prevent the depositions of its CEO, Reggie Aggarawal
and its General Counsel, Larry Samuelson, under the apex witness doctrine and counsel
deposition doctrines.

1

This matter is referred to the undersigned in accordance with 28 U.S.C. § 636 (b)(1)(A) from Chief Judge Robert
Shelby. (ECF No. 64.)

2

The court has determined that oral argument would not be materially helpful and will decide the motion on the
basis of the written memoranda.

Case 2:17-cv-00230-RJS-DBP Document 350 Filed 07/08/20 Page 2 of 4

DISCUSSION
In accordance with the Federal Rules, a party may obtain discovery of any nonprivileged
matter that is relevant to a claim or defense of any party and proportional to the needs of the
case. See Fed.R.Civ.P. 26(b)(1). A court, however, may limit discovery “for good cause, issue an
order to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense” including that the discovery not be had or that it be had only by a method other than
that selected by the party seeking discovery. Fed.R.Civ.P. 26(c).
Cvent argues Defendant RainFocus has failed to make the required showing that either
Mr. Aggarawal or Mr. Samuelson have unique personal knowledge of disputed matters in this
case that cannot be obtained from another source. Cvent cites to the apex doctrine and what is
known as the Shelton test.
I.

The court will grant the motion preventing the deposition of Mr. Aggarawal

Under the apex doctrine, a court may protect high level corporate executives from
the burden of attending a deposition under the following circumstances:
(1) the executive has no unique personal knowledge of the matter in dispute; (2)
the information sought from the executive can be obtained from another witness;
(3) the information sought from the executive can be obtained through an
alternative discovery method; or (4) sitting for the deposition is a severe hardship
for the executive in light of his obligations to his company.”
Asarco LLC, 2015 WL 1924882, at *3 (quoting Naylor Farms v. Anadarko OGC Co., 2011 U.S.
Dist. LEXIS 68940, *3)). Cvent argues this doctrine applies to Mr. Aggarawal and RainFocus
has failed to meet its requirements. The court agrees.
The court acknowledges that “’highly-place[d] executives are not immune from
discovery.’” Asarco LLC v. Noranda Min., Inc., No. 2:12-CV-00527, 2015 WL 1924882, at *3
(D. Utah Apr. 28, 2015) (quoting Six West Retail Acquisition v. Sony Theater Mgmt., 203 F.R.D.

2

Case 2:17-cv-00230-RJS-DBP Document 350 Filed 07/08/20 Page 3 of 4

98, 102 (S.D.N.Y. 2001)). Yet, the court is not persuaded that Mr. Aggarawal has unique
personal knowledge of the matter in dispute. An email by Cvent’s General Counsel, Mr.
Samuelson, in response to a customer inquiry where Mr. Aggarawal is also included, is
insufficient to show unique personal knowledge. There are likely others that can testify about
Cvent’s attempts to obtain customers, including Autodesk a prospective RainFocus’ customer.
Further, Cvent represents it has “provided interrogatory answers explaining the bases for its
copyright and trade secret claims and supporting records.” Reply p. 2. The use of interrogatories
is an alternative discovery method to the deposition of Mr. Aggarawal. There is nothing before
the court convincing it that interrogatories or other discovery methods would be inadequate, thus
necessitating the need for a deposition.
II.

The court will grant Plaintiff’s motion as to Mr. Samuelson

As noted by this court in another decision involving a request to depose counsel, “[w]hile
the Federal Rules do not prohibit the deposition of an attorney for a party, experience teaches
that countenancing unbridled depositions of attorneys often invites delay, disruption of the case,
harassment, and unnecessary distractions into collateral matters.” Hay & Forage Indus. v. Ford
New Holland, Inc., 132 F.R.D. 687, 689 (D.Kan.1990); see Unit Drilling Co. v. E.E.O.C., 2014
WL 2800755, at *2 (D. Utah June 19, 2014). In order to depose Mr. Samuelson, RainFocus must
satisfy the three-part test set forth in Shelton v. American Motors Corp. 805 F.2d 1323, 1327 (8th
Cir. 1986) as adopted by the Tenth Circuit in Boughton v. Cotter Corp., 65 F.3d 823, 830 (10th
Cir. 1995). See Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1112 n.15 (10th
Cir.2001) (noting the Shelton test was adopted by this court in Boughton.”).
Under the Shelton test, RainFocus must demonstrate that “(1) no other means exist to
obtain the information than to depose opposing counsel; (2) the information sought is relevant

3

Case 2:17-cv-00230-RJS-DBP Document 350 Filed 07/08/20 Page 4 of 4

and nonprivileged; and (3) the information is crucial to the preparation of the case.” Boughton,
65 F.3d at 830. Even if the court presumes RainFocus meets the first prong because Mr.
Samuelson sent an email to a prospective customer, RainFocus still fails to meet the other
prongs. RainFocus has not demonstrated that the information sought is not subject to some
privilege. And, RainFocus has failed to convince the court that the information sought is crucial
to the preparation of its case.
III.

The duty to meet and confer

Finally, the court finds Cvent barely meets the required certification that the parties made
reasonable efforts to reach an agreement on this dispute. See DUCIVR 37-1(a). An email
attachment to a motion where a dispute is discussed, but not resolved, does not in the court’s
view satisfy the spirt of this rule because it lacks certification from an attorney who files a
motion that reasonable efforts were undertaken to resolve a dispute. On the facts before it
though, the court will not deny the motion for this failure. Cvent is admonished to meet the spirit
and letter of the meet and confer requirement before filing future motions.
ORDER
For the foregoing reasons Cvent’s Short Form Discovery Motion is GRANTED.

DATED this 7 July 2020.

Dustin B. Pead
United States Magistrate Judge

4