310 F.R.D. 523
S.D. Fla.2015Background
- Sun Capital (plaintiff) moved to quash/protect against apex depositions of its co-CEOs Marc Leder and Rodger Krouse and its general counsel Deryl Couch, arguing they lack unique, non‑duplicative knowledge and that counsel’s deposition raises privilege/work‑product concerns.
- Twin City (defendant) sought those depositions, alleging hundreds of communications show Leder, Krouse, and Couch had direct, first‑hand roles in settlement negotiations and allocation decisions underlying Sun’s claimed damages.
- Sun offered alternate witnesses, including Thomas Clare (outside defense counsel in the underlying litigation) as a 30(b)(6) corporate representative and other lower‑level individuals, and noted Twin City had taken no depositions yet.
- Twin City argued apex protection does not apply because the executives personally participated in negotiations and their testimony is necessary; Twin City had served written discovery and subpoenas to third parties.
- The magistrate applied the apex doctrine and Shelton principles for attorney depositions, evaluating whether the executives/attorney had unique knowledge and whether less intrusive means were exhausted.
- Court granted Sun’s motion, barring depositions of Leder, Krouse, and Couch without prejudice, permitting renewal if Twin City first shows (after other discovery) the witnesses possess unique, essential knowledge unobtainable by less burdensome means.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether apex depositions of Leder and Krouse should be allowed | Leder/Krouse lack unique, firsthand knowledge; other witnesses (e.g., Clare) available; Twin City must use less intrusive means first | Leder/Krouse had direct, personal involvement in settlement negotiations and allocation; their memory can be refreshed and must be tested by deposition | Denied: Twin City failed to show unique, non‑repetitive firsthand knowledge or that less intrusive means were exhausted; depositions barred for now |
| Whether deposition of Sun’s general counsel Couch should be allowed | Couch not uniquely knowledgeable; many questions would implicate privilege/work product; Shelton protections apply | Couch provided substantive edits/instructions and negotiated matters; deposition is permissible and not categorically barred | Denied: Twin City did not show deposition was the only practical means, and risk of invading privilege/work product remained |
| Burden of proof/sequence of discovery for apex witnesses | Twin City must depose 30(b)(6) and lower‑level witnesses first and use written discovery before apex depositions | No exhaustion requirement; executives with firsthand knowledge may be deposed without exhausting other depositions | Court required Twin City to pursue less intrusive discovery first; exhaustion (or at least attempts) is needed before compelling apex depositions |
| Standard for deposing opposing counsel | Shelton test requires no other means, relevance, and necessity; Sun contends Twin City hasn’t met it | Twin City says Shelton protects only true attorney‑client privilege contexts and written discovery is insufficient | Court applied the Shelton/West Peninsular framework and found Twin City failed to show Couch’s deposition is necessary and non‑privileged |
Key Cases Cited
- Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir.) (framework limiting depositions of opposing counsel to situations where no other means exist and testimony is essential)
- West Peninsular Title Co. v. Palm Beach County, 132 F.R.D. 301 (S.D. Fla. 1990) (recognizing depositions of attorneys are disfavored and requiring showing that deposition is the only practical means)
- Travelers Rental Co., Inc. v. Ford Motor Co., 116 F.R.D. 140 (D. Mass. 1987) (illustrative authority requiring prior use of less intrusive discovery before compelling high‑level depositions)