United States District Court, N.D. Illinois, Eastern Division
NUCAP INDUSTRIES INC. and NUCAP U.S. INC., Plaintiffs,
ROBERT BOSCH LLC, BOSCH BRAKE COMPONENTS LLC, and ROBERT BOSCH GMBH, Defendants.
MEMORANDUM OPINION AND ORDER
B. Kim, United States Magistrate Judge
the court is Defendants' motion for a protective order
barring the deposition of Volkmar Denner, Chairman of the
Board of Management of Defendant Robert Bosch GmbH
(“Bosch GmbH”). For the following reasons, the
motion is granted without prejudice to Plaintiffs seeking
leave to re-notice Denner's deposition if and when they
can demonstrate a need for it:
facts in this case are set forth in previous orders resolving
the parties' motions for summary judgment and motions to
dismiss, so the court need not repeat them at length here.
See Nucap Indus., Inc. v. Robert Bosch LLC, No. 15
CV 2207, 2017 WL 1197104, at *2-6 (N.D. Ill. Mar. 31, 2017);
see also Nucap Indus., Inc. v. Robert Bosch LLC, No.
15 CV 2207, 2017 WL 3581174, at *1-5 (N.D. Ill. Aug. 18,
2017). Briefly, Plaintiffs sold brake components to
Defendants from 2008 until their business relationship soured
and came to an end in November 2014. See Nucap
Indus., 2017 WL 1197104, at *2-3. The parties have
differing views on what led Bosch GmbH, a German limited
liability company and indirect parent of Robert Bosch, LLC
(“Bosch”) and Bosch Brake Components, LLC
(“Bosch Brake”), to terminate their relationship.
(See R. 961, Pls.' Opp. at 2.) According to Plaintiffs,
Defendants' decision to end the parties' business
dealings in 2014 “is central to the claims,
counterclaims, and defenses in this case[, ]” and
Plaintiffs argue that Denner is likely to have knowledge on
this topic. (Id. at 4.) Defendants contend that
Denner has no relevant and unique personal knowledge relating
to Plaintiffs' claims and that any such information can
be obtained through less burdensome means. (R. 914,
Defs.' Mot. at 1-2; R. 978, Defs.' Reply at 2.)
Rule of Civil Procedure 26(b)(1) allows parties to
“obtain discovery regarding any non-privileged matter
that is relevant to any party's claim or defense, ”
and public policy favors disclosure of relevant materials.
See Patterson v. Avery Dennison Corp., 281 F.3d 676,
681 (7th Cir. 2002). Rule 26(c)(1) also allows district
courts to issue a protective order limiting discovery to
protect a party from oppression, undue burden, or expense for
good cause. Before doing so, the court must consider the
totality of the circumstances and weigh the value of the
material sought against the burden of providing it.
Patterson, 281 F.3d at 681 (citations omitted).
comes to determining who bears the burden of showing good
cause in the case of deposing high-level executives, federal
courts have adopted varying approaches. See Iain D.
Johnston, Apex Witnesses Claim They Are Too Big to
Depose, Litigation, American Bar Association, Vol. 41,
No. 1 (Fall 2014), available at
nessdepose.pdf (“Apex Witnesses”)
(collecting cases). Bosch GmbH asserts that Plaintiffs bear
the burden of showing both that Denner is likely to possess
relevant, unique personal knowledge and that less intrusive
avenues of discovery have been exhausted. (R. 914, Defs.'
Mot. at 3-5.) Meanwhile Plaintiffs argue that Bosch GmbH has
the burden of demonstrating that “extraordinary
circumstances” justify granting a protective order. (R.
961, Pls.' Opp. at 2 (internal quotation marks omitted).)
Both parties seek to apply the “apex doctrine, ”
a framework used by some courts to analyze whether to allow
the depositions of high-ranking senior executives or
officials. See, e.g., Finisar Corp v. Nistica, Inc.,
No. 13-3345, 2015 WL 3988132, at *1 (N.D. Cal. June 30,
2015); Powertech Tech., Inc. v. Tessera, Inc., No.
11-6121, 2013 WL 3884254, at *1 (N.D. Cal. July 26, 2013).
the Seventh Circuit has not formally adopted the apex
doctrine, both parties cite to Patterson in support
of their position. In Patterson, the Seventh Circuit
noted that deposing “a high-ranking executive in a
multinational corporation . . . would have been a quite
costly and burdensome means” for determining whether he
had information bearing on the claims in the case. 281 F.3d
at 681. The Patterson court also observed in that
case that the plaintiff seeking to depose the executive
failed to take advantage of an “inexpensive, convenient
method of discovery, i.e., interrogatories, ” which
casted “serious doubt” over her claim that the
executive had information “that was more than
marginally relevant to her civil action.” Id.
at 682 (citations omitted). After considering these factors
and the relatively small amount in controversy, the
Patterson court affirmed the district court's
decision not to permit the deposition. Id.
to Bosch GmbH, Patterson mandates that Denner, an
“apex employee, ” must be protected from having
to sit for a deposition unless Plaintiffs can first prove he
has unique, non-cumulative, first-hand relevant knowledge
that cannot be obtained by other less intrusive means. (See
R. 914, Defs.' Mot. at 3-4.) But this view misreads
Patterson and contradicts the well-established
principle that the party seeking protection from discovery
bears the burden of presenting “a particular and
specific demonstration of fact” as to the need for that
protection. See Gulf Oil Co. v. Bernard, 452 U.S.
89, 102 n.16 (1981) (citations omitted); see also Hodgdon
v. Northwestern Univ., 245 F.R.D. 337, 341 (N.D. Ill.
2007) (“[Rule 26] puts the burden on the party seeking
the protective order to show some plainly adequate reason for
its issuance.”); Johnson v. Jung, 242 F.R.D.
481, 483 (N.D. Ill. 2007) (“The burden to show good
cause is on the party seeking the protective order.”
(citation omitted)). Rather than shifting the burden to the
party seeking discovery, Patterson merely
acknowledged that when weighing the value of the material
sought against the burden of providing it, courts may
consider an employee's “apex” position and
whether less burdensome alternatives are available. See
Patterson, 281 F.3d at 681-82. As such, rather than
establishing hard and fast requirements, Patterson
confirmed the idea that a court should be sensitive to the
risk of abuse where an executive has no real information, and
as with any other protective order, “should look for
guidance to a balance of the likelihood of oppression or
harassment compared to the value of the inquiry in generating
important information.” See Dyson, Inc. v.
Sharkninja Operating LLC, No. 14 CV 779, 2016 WL
1613489, at *1 (N.D. Ill. April 22, 2016) (citation omitted).
this in mind, the court considers the specific reasons Bosch
GmbH provides for why there is good cause for a protective
order. First, according to Bosch GmbH, Denner had no
involvement in the actions giving rise to Plaintiffs'
claims. (R. 914, Defs.' Mot. at 1.) Bosch GmbH further
contends that less burdensome avenues, such as issuing
written discovery and deposing other witnesses, are available
to Plaintiffs for obtaining the information they seek from
Denner. (Id. at 9-13.) Finally, Bosch GmbH argues
that sitting for a deposition would be unduly burdensome and
would significantly disrupt Denner's company obligations.
(Id. at 13.) The court addresses each of these
reasons in turn.
Denner's Lack of Involvement
court finds Bosch GmbH's evidence that Denner was not
involved in the events at issue persuasive. First, Bosch GmbH
asserts, and Plaintiffs do not dispute, that Denner “is
not identified as an author, sender or recipient of even a
single pre-litigation document . . . of the nearly 3 million
pages of documents exchanged thus far[.]” (R. 914,
Defs.' Mot. at 1.) Plaintiffs also do not dispute that no
other witnesses have suggested that Denner was involved with,
or has knowledge regarding, the central issues in the case.
To support its argument, Bosch GmbH attaches deposition
transcript excerpts from key employees of Defendants Bosch
and Bosch Brake who testified to their lack of contact with
Denner. (Id., Exs. E & F.) Bosch GmbH also
includes affidavits from Lutz Marschall, President of Bosch
Brake, and Eckhard Lichtenthaler, Senior Vice President of
the Automotive Aftermarket Brake Components
(“AA-BC”) business unit of Bosch GmbH, attesting
to the fact that Denner was not involved in decisions
regarding Defendants' business relationship with
Plaintiffs, and that they had no conversations with Denner
prior to the lawsuit about that relationship or
Defendants' efforts to purchase brake components from
another group of companies. (See id., Exs. I & J.) Rather
than making “stereotyped and conclusory
statements” regarding Denner's limited involvement,
Bosch GmbH has provided specific support for its assertion
that Denner does not have relevant information.
attempt to counter Bosch GmbH's showing by citing to an
email from Marschall regarding the parties' deteriorating
relationship, a letter from Lichtenthaler with Denner's
name in the footer, Denner's online bio, a press release
issued after this suit was filed, and Defendants'
counterclaims alleging that Plaintiffs ceased product
shipments “without justification” and “in
order to cause Bosch financial and reputational
distress.” (R. 961, Pls.' Opp. at 5-6.) However,
the court is unconvinced that this evidence shows Denner has
more than a remote relationship to the claims in this case.
As an initial matter, it is unclear why Defendants'
reasoning for ending their business relationship with
Plaintiffs is “central to the claims, counterclaims,
and defenses in this case” as Plaintiffs allege. (See
R. 961, Pls.' Opp. at 4.) The court recently held that at
this stage in the proceedings, information regarding the
safety of certain brake components and their alleged role in
the dissolution of contractual relations between the parties
is irrelevant. (See R. 951.) But even if the court ultimately
determines that such information is in fact relevant as
Plaintiffs urge in their objection to the court's order,
(R. 956), the evidence Plaintiffs rely on does little to show
that Denner has that information. Plaintiffs cite an email
from Marschall to Ray Arbesman, Chairman and Owner of Nucap
Industries, stating that the parties' endangered
relationship was a topic that “ha[d] reached board
level in Germany.” (R. 961, Pls.' Opp. at 5.)
However, this vague language does not implicate Denner's
direct involvement in the matter, nor does it identify which
board Marschall is referring to and what is meant by
“reached.” (See R. 978, Defs.' Reply at 8.)
Denner's name appearing in the company stationery's
footer and “Corporate Strategy” being listed as
one of his responsibilities on Defendants' web site,
Plaintiffs are grasping at straws. This is unlike other cases
where the executive is portrayed in marketing materials as
being “uniquely ‘hands-on, '” see
In re Pradaxa (Dabigatran Etexilate) Prods. Liab.
Litig., MDL No. 2385, 2014 WL 257566, at *2 (S.D. Ill.
Jan. 23, 2014), or where evidence shows the executive had a
substantial role in the specific decisions at issue, see
id.; Jung, 242 F.R.D. at 485. Here, the mere
appearance of Denner's name in a letterhead (alongside
several other names, presumably board members) and the
generic description of his role as board chairman of a large
corporation are insufficient to justify taking his
deposition. See Bombardier Recreational Prods., Inc. v.
Arctic Cat, Inc., No. 12-CV-2706 ...