Opperman v. Kong Technologies, Inc., 3:13-cv-00453

Plaintiffs in Opperman seek to depose Path, Inc. CEO David Morin and former CTO/director Nathan Folkman; Path objects to both depositions.
Path invokes the “apex deposition” rule to resist Morin’s deposition, arguing high-level status and burden.
Plaintiffs argue Path’s small size and non-hierarchical structure make the apex protection inapplicable and that Morin has relevant knowledge.
Path objects to deposing Folkman because he was previously deposed in a related case, Hernandez v. Path, and contends Rule 30(a)(2) would bar a second deposition.
Court analyzes whether Morin is a percipient witness with unique, first-hand knowledge and whether Folkman’s prior deposition in a different case precludes a new deposition here.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Morin (CEO) may be deposed despite the apex doctrine	Morin lacks traditional apex protections because Path is small/non-hierarchical; plaintiffs need his testimony	Apex rule protects high-level executives from burdensome depositions unless necessary	Overruled: Morin may be deposed — evidence shows he likely has personal, percipient knowledge of relevant decisions and actions
Whether Folkman may be deposed despite a prior deposition in a related case	Prior Hernandez deposition does not bar deposition here because Opperman is a different case with parties who lacked the earlier opportunity; plaintiffs will ask new questions	Prior deposition should preclude another deposition under Rule 30(a)(2) analogously	Overruled: Folkman may be deposed — different case, different parties, and plaintiffs show need for additional testimony

Apple Inc. v. Samsung Elecs. Co., Ltd., 282 F.R.D. 259 (N.D. Cal. 2012) (apex deposition factors: unique first-hand knowledge and exhaustion of less intrusive methods)
Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 244 F.3d 189 (1st Cir. 2001) (prior deposition in same action can limit later subpoenas by others in that same action)