eae a Week DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK —_—_—_— eX DATE FILED:_ 6/7/2024 EMILY MORRISON, Plaintiff, OPINION AND ORDER REGARDING DEPOSITIONS -against- 21-CV-1859 (SHS) (KHP) SCOTIA CAPITAL (USA) INC., Defendant. +--+ ----X KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
The parties in this case have raised multiple issues concerning anticipated depositions and requested a conference to resolve the issues. The Court has reviewed the parties’ submissions and finds that no conference is needed and that it can resolve the issues based on the parties’ submissions.
The two major issues are Plaintiff’s objection to Defendant’s request to take 14 hours of Plaintiff’s deposition and Defendant’s objection to Plaintiff’s deposition notice for the deposition of the former Chief Executive Officer of its parent company, Brian Porter. These issues have been raised in letter motions. (Dkt Nos. 96, 101, 102.) Additionally, Plaintiff seeks court-ordered deposition dates on the ground that Defendant had not yet confirmed dates she noticed for eight depositions to take place during the month of July. Each issue is addressed below.
1. Length of Plaintiff’s Deposition
Federal Rule of Civil Procedure sets a presumptive limit of seven hours for depositions. Fed. R. Civ. P. 30(d)(1). “The court must allow additional time consistent with Rule 26(b)(1) and
(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examina�on.” Id. The Rule also provides for sanc�ons on any person who delays or frustrates the deposi�on. Fed. R. Civ. P. 30(d)(2).
Defendant cites several reasons for why it cannot take Plain�ff’s deposi�on in 7 hours, including the length of the complaint, the length of Plain�ff’s employment period and �me span of claims, its lack of familiarity with certain facts, and Plain�ff’s interrogatory responses. While these factors very well might necessitate addi�onal hours, it is possible that Defendant could
sufficiently probe Plain�ff regarding her claims in 7 hours and probably in less than 14 hours. Accordingly, the Court finds that the request to depose Plain�ff for 14 hours is premature. The Court assumes Defendant will carefully consider its ques�ons and be strategic and non- redundant in ques�oning, that Plain�ff will answer ques�ons directly and succinctly, that counsel will comply with their obliga�ons during deposi�ons and not engage in any long
colloquies, and that no improper objec�ons to deposi�on ques�ons will be made. If it turns out that Defendant is not able to complete the deposi�on within seven hours, the Court expects Plain�ff to cooperate in agreeing to addi�onal �me. Indeed, the Advisory Commitee Notes to Rule 30 expressly state that “[i]t is expected that in most instances the par�es and the witness will make reasonable accommoda�ons” for addi�onal deposi�on �me if warranted “to avoid the need for resort to the court.” 2000 Advisory Commitee Notes to Rule 30(d). They also
expressly note that deposi�ons that ”cover events occurring over a long period of �me,” such as in this case, may require more than 7 hours. Id. If the par�es cannot agree on addi�onal �me, then Defendant may apply to con�nue the deposi�on so it may complete the deposi�on. The Court trusts this will not be necessary. Indeed, if the Court finds that Plain�ff is unreasonable in refusing to allow addi�onal �me or unreasonably delays or frustrates the deposi�on, she will be subject to sanc�ons, including fees incurred in having to apply to the Court for addi�onal �me. Accordingly, the Defendant’s mo�on to extend the deposi�on �me is denied without prejudice.
2. Deposition of Brian Porter Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery and requires that
even relevant discovery be propor�onal to the needs of the case. Fed. R. Civ. P. 26(b)(1). The Rules also provide for issuance of a protec�ve order to protect a party from, among other things, unreasonably cumula�ve or burdensome discovery. Fed. R. Civ. P. 26(b)(2)(C)(i). As a general rule, courts o�en require par�es to depose lower-level execu�ves before seeking or taking deposi�ons of high-level execu�ves who are o�en far removed from the per�nent facts. That is, the so-called apex doctrine supplies “an addi�onal layer of protec�on for senior
corporate execu�ves subject to deposi�ons.” Iowa Pub. Emps.' Ret. Sys. v. Merrill Lynch, Pierce, Fenner & Smith Inc., No. 17 Civ. 6221, 2020 WL 6273396, at *1 (S.D.N.Y. Aug. 28, 2020) (quo�ng Scott v. Chipotle Mexican Grill Inc., 306 F.R.D. 120, 122 (S.D.N.Y. 2015)). Absent a showing that the execu�ve “has unique evidence, personal knowledge of the claims at issue,” and “other witnesses incapable of providing tes�mony about the conduct alleged,” the execu�ve is
safeguarded from being deposed. Id. See also Harapeti v. CBS Television Stations Inc., 21 Misc. 680, 2021 WL 3932424 (S.D.N.Y. Sept. 2, 2021) (collec�ng cases). Plain�ff seeks to depose Brian Porter, the former Chief Execu�ve Officer of the Bank of Nova Sco�a, the parent company of Plain�ff’s former employing en�ty, defendant Sco�a Capital (USA) Inc. (“SCUSA”). Porter was CEO from November 1, 2013 to January 31, 2023. Prior to that, he served as the Bank’s Chief Risk Officer. Porter did not supervise Plain�ff and did not supervise the New Orleans office opera�ons—the office in which Plain�ff was employed. The Bank sponsored a Sco�abank Photography Award during a period of �me—an award that recognized outstanding contemporary photographers. The Bank also sponsored produc�on of a
book of photos from these photographers. Porter signed short leters sta�ng in sum and substance that the Bank was pleased to recognize the talented photographers and support Canadian ar�sts, culture and heritage and congratula�ng the winner of the award. Porter submited a declara�on sta�ng that he was not involved in the selec�on of content included in the award book, the selec�on of the winner or the selec�on of clients who were given a copy of
the award book. He also atested that although he was aware that his signature appeared on the congratulatory leter, his support staff processed leters and put his signature stamp on the leter. He also atested that although he traveled two or three �mes to the Bank’s New Orleans office over his tenure and gave welcoming remarks to clients atending a conference there, he does not recall mee�ng Plain�ff while visi�ng the New Orleans office or knowing anything about her while she was employed, as the individuals who supervised her were several levels
below him in the organiza�on. For her part, Plain�ff says that she did meet Porter when he visited and that he met principally with male employees and not female employees of the office. She contends that Porter’s deposi�on tes�mony about his limited interac�ons with her and other women is
relevant to her allega�on that the Bank treated women differently. She also states that Porter has knowledge about the closure of the New Orleans office and certain policies of the Bank.
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eae a Week DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK —_—_—_— eX DATE FILED:_ 6/7/2024 EMILY MORRISON, Plaintiff, OPINION AND ORDER REGARDING DEPOSITIONS -against- 21-CV-1859 (SHS) (KHP) SCOTIA CAPITAL (USA) INC., Defendant. +--+ ----X KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
The parties in this case have raised multiple issues concerning anticipated depositions and requested a conference to resolve the issues. The Court has reviewed the parties’ submissions and finds that no conference is needed and that it can resolve the issues based on the parties’ submissions.
The two major issues are Plaintiff’s objection to Defendant’s request to take 14 hours of Plaintiff’s deposition and Defendant’s objection to Plaintiff’s deposition notice for the deposition of the former Chief Executive Officer of its parent company, Brian Porter. These issues have been raised in letter motions. (Dkt Nos. 96, 101, 102.) Additionally, Plaintiff seeks court-ordered deposition dates on the ground that Defendant had not yet confirmed dates she noticed for eight depositions to take place during the month of July. Each issue is addressed below.
1. Length of Plaintiff’s Deposition
Federal Rule of Civil Procedure sets a presumptive limit of seven hours for depositions. Fed. R. Civ. P. 30(d)(1). “The court must allow additional time consistent with Rule 26(b)(1) and
(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examina�on.” Id. The Rule also provides for sanc�ons on any person who delays or frustrates the deposi�on. Fed. R. Civ. P. 30(d)(2).
Defendant cites several reasons for why it cannot take Plain�ff’s deposi�on in 7 hours, including the length of the complaint, the length of Plain�ff’s employment period and �me span of claims, its lack of familiarity with certain facts, and Plain�ff’s interrogatory responses. While these factors very well might necessitate addi�onal hours, it is possible that Defendant could
sufficiently probe Plain�ff regarding her claims in 7 hours and probably in less than 14 hours. Accordingly, the Court finds that the request to depose Plain�ff for 14 hours is premature. The Court assumes Defendant will carefully consider its ques�ons and be strategic and non- redundant in ques�oning, that Plain�ff will answer ques�ons directly and succinctly, that counsel will comply with their obliga�ons during deposi�ons and not engage in any long
colloquies, and that no improper objec�ons to deposi�on ques�ons will be made. If it turns out that Defendant is not able to complete the deposi�on within seven hours, the Court expects Plain�ff to cooperate in agreeing to addi�onal �me. Indeed, the Advisory Commitee Notes to Rule 30 expressly state that “[i]t is expected that in most instances the par�es and the witness will make reasonable accommoda�ons” for addi�onal deposi�on �me if warranted “to avoid the need for resort to the court.” 2000 Advisory Commitee Notes to Rule 30(d). They also
expressly note that deposi�ons that ”cover events occurring over a long period of �me,” such as in this case, may require more than 7 hours. Id. If the par�es cannot agree on addi�onal �me, then Defendant may apply to con�nue the deposi�on so it may complete the deposi�on. The Court trusts this will not be necessary. Indeed, if the Court finds that Plain�ff is unreasonable in refusing to allow addi�onal �me or unreasonably delays or frustrates the deposi�on, she will be subject to sanc�ons, including fees incurred in having to apply to the Court for addi�onal �me. Accordingly, the Defendant’s mo�on to extend the deposi�on �me is denied without prejudice.
2. Deposition of Brian Porter Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery and requires that
even relevant discovery be propor�onal to the needs of the case. Fed. R. Civ. P. 26(b)(1). The Rules also provide for issuance of a protec�ve order to protect a party from, among other things, unreasonably cumula�ve or burdensome discovery. Fed. R. Civ. P. 26(b)(2)(C)(i). As a general rule, courts o�en require par�es to depose lower-level execu�ves before seeking or taking deposi�ons of high-level execu�ves who are o�en far removed from the per�nent facts. That is, the so-called apex doctrine supplies “an addi�onal layer of protec�on for senior
corporate execu�ves subject to deposi�ons.” Iowa Pub. Emps.' Ret. Sys. v. Merrill Lynch, Pierce, Fenner & Smith Inc., No. 17 Civ. 6221, 2020 WL 6273396, at *1 (S.D.N.Y. Aug. 28, 2020) (quo�ng Scott v. Chipotle Mexican Grill Inc., 306 F.R.D. 120, 122 (S.D.N.Y. 2015)). Absent a showing that the execu�ve “has unique evidence, personal knowledge of the claims at issue,” and “other witnesses incapable of providing tes�mony about the conduct alleged,” the execu�ve is
safeguarded from being deposed. Id. See also Harapeti v. CBS Television Stations Inc., 21 Misc. 680, 2021 WL 3932424 (S.D.N.Y. Sept. 2, 2021) (collec�ng cases). Plain�ff seeks to depose Brian Porter, the former Chief Execu�ve Officer of the Bank of Nova Sco�a, the parent company of Plain�ff’s former employing en�ty, defendant Sco�a Capital (USA) Inc. (“SCUSA”). Porter was CEO from November 1, 2013 to January 31, 2023. Prior to that, he served as the Bank’s Chief Risk Officer. Porter did not supervise Plain�ff and did not supervise the New Orleans office opera�ons—the office in which Plain�ff was employed. The Bank sponsored a Sco�abank Photography Award during a period of �me—an award that recognized outstanding contemporary photographers. The Bank also sponsored produc�on of a
book of photos from these photographers. Porter signed short leters sta�ng in sum and substance that the Bank was pleased to recognize the talented photographers and support Canadian ar�sts, culture and heritage and congratula�ng the winner of the award. Porter submited a declara�on sta�ng that he was not involved in the selec�on of content included in the award book, the selec�on of the winner or the selec�on of clients who were given a copy of
the award book. He also atested that although he was aware that his signature appeared on the congratulatory leter, his support staff processed leters and put his signature stamp on the leter. He also atested that although he traveled two or three �mes to the Bank’s New Orleans office over his tenure and gave welcoming remarks to clients atending a conference there, he does not recall mee�ng Plain�ff while visi�ng the New Orleans office or knowing anything about her while she was employed, as the individuals who supervised her were several levels
below him in the organiza�on. For her part, Plain�ff says that she did meet Porter when he visited and that he met principally with male employees and not female employees of the office. She contends that Porter’s deposi�on tes�mony about his limited interac�ons with her and other women is
relevant to her allega�on that the Bank treated women differently. She also states that Porter has knowledge about the closure of the New Orleans office and certain policies of the Bank. However, Plain�ff is also deposing eight other individuals who have far more knowledge of topics relevant to this case and that is redundant of informa�on that Porter has. These include: Jake Lawrence (Group Head and CEO, Global Banking and Markets, New York) who reported to Mr. Porter, James Snyder (Former Director, U.S. Equity Sales and Plain�ff’s comparator), Jim Morris (Global Co-Head of Equity Sales and Trading, and responsible for overseeing the New
Orleans office), John McGuire (Former MD, Head of U.S. Equity Sales and Trading, New York; Jim Morris reported to him), Paul Pursley (Former Managing Director and Head of the Howard Weil Division of SCUSA), Pryn Haskins (Global Head of Equi�es, Global Banking and Markets and decision maker for the reduc�on in force), Anna Maria Yaroshuk (Former Senior Manager, Employee Rela�ons), and a 30(b)(6) witness(es).
When considering all the factors set forth in Rule 26(b)(1), Porter’s deposi�on is not propor�onal to the needs of the case given his limited knowledge of Plain�ff and the informa�on that can be obtained from the other individuals to be deposed. The deposi�on is unnecessarily cumula�ve and burdensome, especially considering that Porter is no longer a current employee of the Bank. Moreover, the apex doctrine applies here because Porter’s affidavit makes clear he does not have unique personal knowledge germane to this case and
because other witnesses can provide the same informa�on Plain�ff seeks. Accordingly, Defendant’s mo�on is granted. 3. Deposition Schedule Finally, Plain�ff has asked for the Court to set deposi�on dates. The Court does not believe that is necessary. It appears that Defendant agrees to the deposi�ons (other than of Porter) and is working to facilitate dates. The Court requests a leter within seven days of this
Opinion and Order providing the Court with the mutually-confirmed dates for the eight deposi�ons Plain�ff seeks. CONCLUSION
Going forward, the parties are encouraged to meet and confer to attempt to resolve issues such as the ones addressed herein, which should not require Court involvement considering the considerable experience of counsel for both sides. The Court is respectfully requested to terminate the motions at Dkt. Nos. 96, 101 and 102. A case management conference is set for June 27, 2024 at 11:00 a.m.
SO ORDERED. June 7, 2024 New York, New York Katha Hf (4. ker Katharine H. Parker United States Magistrate Judge