Newmark Realty Capital, Inc. v. BGC Partners, Inc., 5:16-cv-01702

Plaintiff Newmark Realty Capital seeks to depose Howard Lutnick, CEO of BGC Partners and chairman of Newmark & Company Real Estate, in a trademark-infringement action against BGC and related defendants.
Defendants moved for a protective order under Rule 26(c), invoking the apex-deponent doctrine to prevent or delay Lutnick’s deposition as unduly burdensome and harassing.
Plaintiff argues Lutnick is a top decisionmaker with direct, relevant knowledge of the alleged infringement and thus is a proper deposition target.
Parties had already pursued substantial discovery: twelve other depositions (including a Rule 30(b)(6) witness), numerous interrogatories, and document requests.
The magistrate judge applied the apex-deposition framework: require a showing that the executive has unique, first-hand, non-repetitive knowledge and that less intrusive methods were exhausted.
Court granted the protective order prohibiting Lutnick’s deposition at this time without prejudice to Plaintiff filing to compel if further discovery shows Lutnick’s deposition is necessary; if compelled, Lutnick must be made available promptly.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Lutnick may be deposed now as an apex executive	Lutnick is a top decisionmaker with direct, relevant knowledge of alleged trademark infringement	Apex doctrine and Rule 26(c) protect high-level executives absent a showing of unique, first-hand knowledge and exhaustion of other discovery	Denied at this time: protective order granted; deposition barred without prejudice to later compel request
Whether Plaintiff has shown Lutnick has unique, first-hand, non-repetitive knowledge	Public statements and Lutnick’s role suffice to justify deposition now	Generalized role and public statements are insufficient to show unique, non-repetitive knowledge	Plaintiff’s current showing is insufficient; must rely on other discovery first
Whether less intrusive discovery has been exhausted	Plaintiff had served many discovery requests and taken multiple depositions but contends more is needed from Lutnick	Defendants contend existing discovery should be used first to develop facts showing need for Lutnick	Court found other discovery may obviate or justify later deposition; exhaustion not satisfied now
Remedy if later discovery shows necessity	Plaintiff may move to compel deposition if further discovery reveals unique knowledge	Defendants must then make Lutnick available timely if court compels	Order without prejudice: Plaintiff may timely seek to compel after further discovery

Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004) (party seeking protective order must show good cause by demonstrating harm or prejudice from discovery)
Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259 (N.D. Cal. 2012) (apex-deposition framework; high-level executives generally subject to deposition if they have personal knowledge, but courts may limit discovery to prevent harassment)