Cvent Inc v. RainFocus et al

Filing 423

MEMORANDUM DECISION AND ORDER denying 365 Defendant RainFocus' Motion for Protective Order. Signed by Magistrate Judge Dustin B. Pead on 11/20/20. (dla)

Case 2:17-cv-00230-RJS-DBP Document 423 Filed 11/20/20 PageID.6551 Page 1 of 3

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

v.
RainFocus,

MEMORANDUM DECISION AND
ORDER
Case No. 2:17-cv-00230-RJS-DBP
Chief District Judge Robert J. Shelby

Defendants.

Chief Magistrate Judge Dustin B. Pead

This matter is before the court on Defendant RainFocus’ Motion for Protective Order to
prevent the deposition of its CEO, Edward Sherman. (ECF No. 365.) 1 After considering the
record in this case, relevant case law, the court’s prior order, and the parties’ respective
positions, the court will deny the motion. 2
This dispute revolves around the deposition of RainFocus’ CEO Mr. Sherman. Plaintiff
Cvent, Inc. first noticed Mr. Sherman’s deposition on February 12, 2019. Through a series of
events, including problems and concerns with the COVID-19 pandemic, his deposition has been
delayed multiple occasions. Now Defendant seeks to prevent that deposition, arguing the apex
witness doctrine applies, and the Federal Rules limit discovery to “protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
Earlier in July of this year, in a similar dispute between the parties, the court granted
Plaintiff Cvent’s short form discovery motion preventing the deposition of its CEO, Reggie

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.)

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The court has determined that oral argument would not be materially helpful and will decide the motion on the
basis of the written memoranda. Moreover, given the recent substantial increase in motion practice between the
parties, the court believes there is little common ground that could be reached between the parties at a hearing.

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Aggarawal, and its General Counsel, Larry Samuelson. (ECF No. 350.) In that order, the court
considered the apex doctrine, which may protect a high level corporate executive from the
burden of attending a deposition under certain circumstances. These circumstances include:
“(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). Yet, despite this doctrine, and the Federal Rules, ”‘highly-place[d]
executives are not immune from discovery.’” Asarco LLC v. Noranda Min., Inc., No. 2:12-CV00527, 2015 WL 1924882, at *3 (D. Utah Apr. 28, 2015) (quoting Six West Retail Acquisition v.
Sony Theater Mgmt., 203 F.R.D. 98, 102 (S.D.N.Y. 2001)).
Defendant asserts Mr. Sherman has limited knowledge of the particulars of the issues in
this case as he is not “in the trenches of writing RainFocus’ source code.” Mtn. p. 3. Further,
there are others with greater knowledge about RainFocus’ defenses in this case. Thus, according
to Defendant, the information could be obtained via other means, including by interrogatories. In
support, Defendant points to the court’s order from July of this year. The court is not persuaded
by RainFocus’ arguments.
RainFocus identified Mr. Sherman in its initial disclosures as a witness with knowledge
of Cvent’s allegations, and why it did not infringe Cvent’s copyrights, or misappropriate its trade
secrets. 3 (ECF No. 371-1.) The fact that RainFocus identified Mr. Sherman as a witness

In its initial disclosures Mr. Sherman is listed as Jr Sherman. Edward and Jr are the same person based on the other
filings before the court.

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demonstrates a willingness to have him testify and the court finds it proper to hold RainFocus to
that designation. Further, it appears that Mr. Sherman has been involved in other activities, such
as recruiting employees, that may impact this case. Thus, the circumstances here do not support
application of the apex doctrine. Finally, the court is not persuaded that the Federal Rules
prohibit Mr. Sherman’s deposition in these circumstances. There is no patent need to protect him
from “annoyance, embarrassment, oppression, or undue burden or expense ….” Fed. R. Civ. P.
26(c)(1).
The court therefore DENIES RainFocus’ motion.

DATED this 20 November 2020.

Dustin B. Pead
United States Magistrate Judge

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