Baine v. General Motors Corp.

141 F.R.D. 332, 1991 U.S. Dist. LEXIS 19437, 1991 WL 322984
District Court, M.D. Alabama·Decided December 3, 1991·No. Civ. A. No. 91-T-184-S·Published·Cited by 26 cases

Opinion

ORDER

CARROLL, United States Magistrate Judge.

The defendant, General Motors Corporation, has moved for a protective order to quash the deposition notice of Edward H. Mertz, a vice president of the corporation. Mr. Mertz had, in 1976, written a memorandum distributed to 18 General Motors employees that described his observations of the performance of a 1978 prototype vehicle’s restraint system. These observations were based on his experience of having driven the car for several days. Plaintiffs’ counsel is interested in the subject matter of that memorandum, contending for its relevance to the instant suit in which it is alleged that the restraint system failed and thereby contributed to pain and death of plaintiffs’ decedent, who was wearing a seatbelt which had the allegedly defective “comfort feature” at the time of the rear-end collision. Defendant argues by motion to quash filed September 12, 1991 that deposing Mr. Mertz would be burdensome, inconvenient, duplicative, and premature. Plaintiffs have similarly given notice that they would depose each of the 18 recipients of the Mertz memorandum. Defendants argue that this, too, would be burdensome, inconvenient, and duplicative. An evidentiary hearing on several pending discovery motions was held September 19, 1991, and [334]*334the parties presented some very brief argument for the court on the issues related to depositions. Since this essentially recapitulated the arguments in the parties’ briefs, the court feels comfortable ruling on the deposition issues at this time and apart from the other discovery issues.

Deposing Mr. Mertz

Mr. Mertz is currently a vice president at General Motors. He is the top executive of the Buick Division. At the time the memorandum was prepared, Mr. Mertz was daily involved in General Motors’ engineering activities. Defendant has vigorously opposed plaintiffs’ efforts to depose Mr. Mertz. As alternatives to this deposition, defendant has offered that the plaintiffs depose instead Mr. Robert Sinke, who was a distributee of that memorandum and who heads the company’s engineering analysis section. Relatedly, defendant has also suggested that plaintiff depose fewer than the total of 18 distributees of the Mertz memorandum and then decide whether deposing Mr. Mertz is still necessary. Finally, defendant points out that plaintiffs have yet to take the corporate deposition and should at least wait to see what that generates before demanding Mertz’s deposition.

The court prefaces its analysis of the issue now before it by noting that the trial court has broad discretion in controlling the timing of discovery. Scroggins v. Air Cargo, Inc., 534 F.2d 1124 (5th Cir. 1976). Additionally, the Federal Rules by their plain terms allow the court to limit discovery so as to avoid cumulation, duplication, harassment, expense and burdensomeness. See Fed.R.Civ.P. 26(b)(1). The discretion to limit discovery extends to imposing restrictions where the discovery sought “is obtainable from some other source that is more convenient, less burdensome, or less expensive.” Fed.R.Civ.P. 26(b)(1). The court may issue a protective order responsive to the legal issues raised by the parties where it has been demonstrated to the court’s satisfaction that such an order would be appropriate. Fed. R.Civ.P. 26(c).

The legal authority is fairly unequivocal in circumstances such as these, and several cases bear a striking similarity to this one. For example, in Mulvey v. Chrysler Corp., 106 F.R.D. 364 (D.R.I.1985), plaintiffs in a products liability suit sought to depose Lee Iacocca, Chrysler’s chairman, asserting that the deposition would help them to explore the factual basis of certain inculpatory statements he made in his autobiography. The court invoked Rule 26 as to convenience and burdensomeness. 106 F.R.D. at 366. It noted that Mr. Iacocca was “a singularly unique and important individual who [could] be easily subjected to unwarranted harassment and abuse.” Id. The Mulvey court ordered that interrogatories be propounded instead, without prejudice to the plaintiffs’ ability to depose Mr. Iacocca later if still warranted. Id.

Other cases focus on the personal knowledge of the witness whose deposition is sought. For example, in Community Federal Sav. & Loan Ass’n v. FHLBB, 96 F.R.D. 619 (D.D.C.1983), a case in which plaintiffs sought deposition testimony of several high-level agency administrators, the court held that when a party seeks to depose high-level decisionmakers who are removed from the daily subjects of the litigation, the party must first demonstrate that the would-be deponent has “unique personal knowledge” of the matter in issue. 96 F.R.D. at 621-622. Moreover, the court held that the unique personal knowledge must be truly unique—the deposition would not be allowed where the information could be had through interrogatories, deposition of a designated spokesperson, or deposition testimony of other persons. Id. Similarly, in M.A. Porazzi Co. v. The Mormaclark, 16 F.R.D. 383 (S.D.N.Y.1951), the moving party sought to depose a shipping company’s vice president who had no personal knowledge of the shipment at issue. The court directed that subordinates with equal or greater knowledge first be deposed and held that the president could not be deposed if he could contribute nothing new to the information provided by the alternative deponents. Still another federal court has held that where the proposed deponent was, among other things, lacking personal [335]*335knowledge of the subject matter of the lawsuit, the discovering party must first propound interrogatories and then should these prove insufficient, the party could request to take the deposition without prejudice to its request. Colonial Capital Co. v. General Motors, 29 F.R.D. 514 (D.Conn. 1961). See also Skookum Co. v. Sutherlin Mach. Works, Inc., 33 F.R.D. 19 (D.Ore. 1963).

Contrary authority can be readily distinguished on the facts. Wal-Mart Stores, Inc. v. Street, 754 S.W.2d 153 (Tex.1988) (per curiam), arguably supports plaintiffs’ contention that the deposition of Mr. Mertz should be allowed. In that slip-and-fall case, a Texas state court allowed the plaintiff to depose Sam Walton, who had been president of Wal-Mart at the time of the accident but who was chairman at the time that the notice to depose was given. The appellate court affirmed. This case can be readily distinguished from our own, however, not only because it is without precedential value in a case in which Texas law need not control, but also because the entire case was resolved based on a construction of a Texas discovery rule involving the determination of who is an “agent or employ subject to the control of a party.” 754 S.W.2d at 154. The other case that arguably supports plaintiffs’ argument is Travelers Rental Co. v. Ford Motor Co., 116 F.R.D. 140 (D.Mass.1987). In that antitrust case, the court allowed plaintiffs to depose four high-ranking Ford officers after five middle managers had been deposed already.

Free access — add to your briefcase to read the full text and ask questions with AI

Baine v. General Motors Corp., 141 F.R.D. 332, 1991 U.S. Dist. LEXIS 19437, 1991 WL 322984 (M.D. Ala. 1991).

141 F.R.D. 332 (Baine v. General Motors Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Mitchell v. Conrad
W.D. Kentucky, 2023
Guidehouse LLP v. Shah
S.D. New York, 2020
Bradshaw v. Maiden
2017 NCBC 29 (North Carolina Business Court, 2017)
Amazon
2014 T.C. Memo. 245 (U.S. Tax Court, 2014)
STATE EX REL. MASSACHUSETTS MUT. LIFE INS. v. Sanders
724 S.E.2d 353 (West Virginia Supreme Court, 2012)
State ex rel. Massachusetts Mutual Life Insurance v. Sanders
724 S.E.2d 353 (West Virginia Supreme Court, 2012)
Ex Parte Community Health Systems, 1100523 (Ala. 5-6-2011)
72 So. 3d 595 (Supreme Court of Alabama, 2011)
City of Irondale v. Affinity Hospital, LLC
72 So. 3d 595 (Supreme Court of Alabama, 2011)
Thomas v. Cate
715 F. Supp. 2d 1012 (E.D. California, 2010)
Minter v. Wells Fargo Bank, N.A.
258 F.R.D. 118 (D. Maryland, 2009)
Reif v. CNA
248 F.R.D. 448 (E.D. Pennsylvania, 2008)
Bogan v. City of Boston
489 F.3d 417 (First Circuit, 2007)
Ahrens v. Ford Motor Company
340 F.3d 1142 (Tenth Circuit, 2003)
Evans v. Allstate Insurance
216 F.R.D. 515 (N.D. Oklahoma, 2003)