None of this is news to Eligo, which designated Mr. Goldstein as an ESI custodian. ECF No. 75- 1 at 1. Eligo states that Goldstein was CEO from May 2012 to October 2017 but omits that he was also CEO from March 2023 to May 2024. Id. In his lengthy tenure as Eligo’s chief executive, Goldstein “may have the last word” on why Eligo made certain decisions and as “the ultimate authority,” and his “views as to why [Eligo made decisions] may be of far greater probative value on the issue of intent and motive than the views of the lower-level executives.” Travelers Rental Co. v. Ford Motor Co. , 116 F.R.D. 140, 146 (D. Mass. 1987). Indeed, it is common for courts in this District allow “depositions of high ranking corporate executives where questions have been raised regarding corporate policies.” Gen. Star Indem. Co. , 210 F.R.D. at 84 (citing Travelers Rental Co. , 116 F.R.D. at 146). The foregoing demonstrates that Friedgan and Goldstein have first- hand, unique knowledge that is relevant to this action and that these depositions are proportional to the needs of this consumer protection class action. The “Apex Doctrine” is No Bar to These Two Depositions : Although Eligo makes various apex arguments, each boils down to Eligo’s claim that Friedgan and Goldstein lack unique, relevant knowledge. ECF No. 208 at 2. This alone is insufficient to bar their depositions. See Scott , 306 F.R.D. at 120 (“[T]he mere fact that the executive has a busy schedule or claims no unique knowledge of relevant facts is simply not a basis for foreclosing otherwise proper discovery.”). Moreover, discovery paints a different picture. Eligo’s 30(b)(6) witness testified that “a very small group of people” does all of the work for Eligo nationally. ECF No. 112-4 at 41:18–21; see also Ex. H, May 9, 2024 Hr’g Tr. at 8:14–15 (Eligo’s lawyers claiming “Eligo is a small company”). As Friedgan and Goldstein have important, unique knowledge, their depositions should proceed over any apex concerns. See Six West Retail Acquisition v. Sony Theatre Mgmt. Corp. , 203 F.R.D. 98, 102–04 (S.D.N.Y. 2001) (allowing deposition of Sony’s CEO in a “narrow dispute. . .about the proper management of the plaintiff’s three theatres located in Manhattan” because Sony Corporation’s CEO was “well informed” about the facts at issue in the litigation, “fielded several reports from senior members of Sony’s management team” on relevant issues, “took part in [relevant] discussions,” and was present during a relevant board meeting where minutes were “succinct and offer no additional details”); see also id. at 103 (ruling that “the plaintiff should be permitted to question [Sony’s CEO] about his own understanding of [the underlying facts] and the role he played in the board’s discussion.”). Eligo is certainly no Sony and Plaintiffs have adduced ample proof that Messrs. Friedgan and Goldstein have relevant, unique information. Eligo’s claims of “harassment” likewise ring hollow. This consumer protection action involves tens of thousands of Eligo’s New York customers who were harmed by the challenged conduct, from which Eligo derived tens of millions of dollars in revenue. [1] This action is thus “not an inconsequential case in which a chief executive’s deposition is sought merely to harass or to force settlement.” Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, Pa. , No. 90 Civ. 7811, 1993 WL 34678, at *2 (S.D.N.Y. Feb. 4, 1993); see also Chevron Corp. v. Donziger , No. 11 Civ. 691, 2013 WL 1896932, at *1 (S.D.N.Y. May 7, 2013) (denying apex motion where case is “far from [] trivial [and [e]nough is at stake to justify the deposition of an apex witness”). Thank you for the Court’s attention to this matter.
Respectfully submitted, /s/ Ethan D. Roman Ethan D. Roman
cc: All Counsel of Record
NOTES
[1] According to the Energy Information Agency, Eligo had more than 11,000 customers and derived over $13 million in revenue in New York in 2023 alone. See Table 12, https://www.eia.gov/electricity/sales_revenue_price/.