306 F.R.D. 120
S.D.N.Y.2015Background
- Plaintiffs seek to depose Chipotle co-CEO Montgomery F. Moran regarding the creation, duties, and overtime classification of the "Apprentice" position after Chipotle produced few responsive classification documents.
- Chipotle opposed, submitting Moran’s declaration stating he lacks unique knowledge and that lower‑level executives could provide equivalent information.
- The magistrate judge reviewed plaintiffs’ in camera submissions and found Moran to be an engaged executive with relevant institutional knowledge, including long tenure and prior roles at Chipotle.
- The court noted Chipotle’s representations at a hearing that no documents explaining the original or later classification decisions have been located.
- The court ordered a limited four‑hour oral deposition of Moran at his convenience to permit plaintiffs to probe his institutional memory.
- Chipotle moved for reconsideration; the court denied the motion, reaffirming the balancing of discovery principles and rejecting Rule 31 written questions as an adequate substitute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a high‑level executive (Moran) may be deposed | Moran likely has relevant, non‑cumulative knowledge about Apprentice duties, staffing models, and classification | Moran has no unique/non‑cumulative knowledge; lower‑level executives can provide same info; deposition burdensome | Court allowed a limited four‑hour oral deposition: Moran likely has relevant institutional knowledge given documents and paucity of produced classification records |
| Whether deposition should be oral or by Rule 31 written questions | Oral deposition necessary for follow‑ups and spontaneity | Written questions would be less burdensome/time‑consuming | Court denied written question alternative; oral deposition preferred as Rule 31 is disfavored |
| Whether court wrongly relied on assumptions / penalized defendant in ordering deposition | N/A (plaintiffs rely on need to develop record) | Order was based on speculation, cumulative testimony, and effectively penalized discovery limitations | Reconsideration denied: court properly balanced factors and did not penalize; relied on in camera review and discovery gaps |
| Whether deposition is cumulative and should be precluded | Plaintiffs entitled to test Moran's claimed lack of knowledge despite potential overlap | Deposition would be redundant and cumulative; protective considerations weigh against it | Court held potential cumulative nature insufficient to preclude deposition where other sources/documents are lacking; limited duration mitigates burden |
Key Cases Cited
- General Star Indem. Co. v. Platinum Indem. Ltd., 210 F.R.D. 80 (S.D.N.Y. 2002) (discusses standards for deposing senior corporate executives and protective orders)
- In re Garlock Sealing Techs., 463 F. Supp. 2d 478 (S.D.N.Y. 2006) (plaintiffs have no burden to show deponents possess relevant knowledge before taking depositions)
- Less v. Taber Instrument Corp., 53 F.R.D. 645 (W.D.N.Y. 1971) (busy or high‑level status does not bar examination and claim of no knowledge can be tested)
- Zito v. Leasecomm Corp., 233 F.R.D. 395 (S.D.N.Y. 2006) (depositions on written questions are disfavored and oral depositions preferred for follow‑up)
- Naftchi v. New York Univ. Med. Ctr., 172 F.R.D. 130 (S.D.N.Y. 1997) (factors to weigh when considering deposition of senior executives)
- CBS, Inc. v. Ahern, 102 F.R.D. 820 (S.D.N.Y. 1984) (an executive’s busy schedule is not a basis to foreclose proper discovery)