Opinion
CIVIL ACTION Case No. 01-2009-KHV
May 2, 2002
MEMORANDUM AND ORDER
Pending before the Court is Defendant PepsiCo, Inc.'s Motion for Protective Order to Preclude Two Noticed Depositions (doc. 223). PepsiCo, Inc. (PepsiCo) requests the Court issue a protective order precluding the depositions of two of its senior-level executives, Indra Nooyi and Roger Enrico. For the reasons stated below, PepsiCo's Motion for Protective Order is denied.
I. Relevant Background Information
Prior to the discovery deadline, Plaintiff served notices of deposition on Indra Nooyi and Roger Enrico for their depositions to be taken on March 27 and 28, 2002 in Purchase, New York. Indra Nooyi is the President, Chief Financial Officer, and a member of the Board of Directors of PepsiCo. In 1998, she was Senior Vice President of corporate strategy and development. Roger Enrico is the former Chairman and current Vice Chairman of the Board of Directors of PepsiCo.
Both Ms. Nooyi and Mr. Enrico were deposed in similar litigation in Ohio and Illinois. PepsiCo, Inc. v. Central Investment Corp., No. c-1-98-389 (S.D.Ohio); PepsiCo, Inc. v. Marion Pepsi-Cola Bottling Co., No. 00-229-DRH (S.D.Ill.). Their depositions in the Marion case were videotaped.
II. Standard for Ruling on a Motion for Protective Order
Federal Rule of Civil Procedure 26(c) provides that a court, upon a showing of good cause, "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The party seeking a protective order has the burden to show good cause for it. Reed v. Bennett, 193 F.R.D. 689, 691 (D.Kan. 2000). To establish good cause, that party must make "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981). The decision to enter a protective order is within the court's discretion. Thomas v. International Bus. Machs., 48 F.3d 478, 482 (10th Cir. 1995).
A party may request a protective order to completely preclude inquiry into matters that are outside the scope of appropriate discovery. Cotracom Commodity Trading Co. v. Seaboard Corp., No. 97-2391-GTV, 2000 WL 796142, *2 (D.Kan. June 14, 2000). Courts, however, disfavor barring a deposition. Id. Absent extraordinary circumstances, courts rarely grant a protective order that totally prohibits a deposition. Id.
Discussion
PepsiCo advances several arguments in support of its request for a protective order precluding Plaintiff from deposing two of its senior-level executives, Ms. Nooyi and Mr. Enrico. First, PepsiCo contends that both Ms. Nooyi and Mr. Enrico have signed Declarations that state they have no personal knowledge of the facts or issues in this case. It next argues that Plaintiff has already deposed top officials, as well as lower-level employees of PepsiCo with personal knowledge of the division's strategies and its decisions regarding Plaintiff. Permitting Plaintiff to depose these executives would also be cumulative in that Ms. Nooyi and Mr. Enrico have already been deposed on the same subject in similar litigation in Ohio and Illinois. In addition, PepsiCo claims that Plaintiff's insistence on deposing the executives is in retaliation for an unsuccessful mediation.
Plaintiff opposes the motion contending that PepsiCo has not demonstrated good cause to preclude the depositions. It argues that it should be permitted the opportunity to depose Ms. Nooyi and Mr. Enrico's because of their key positions and involvement in PepsiCo's strategic consolidation plan known as Project Broncos. Further, it should not be restricted to the questions and style of examination used by another attorney in other litigation about matters primarily devoted to other issues.
According to Plaintiff, Project Broncos is a bottler consolidation strategy document used by PepsiCo strategic planners in 1998, which describes PepsiCo's plan to arrive at an anchor bottling strategy, to document the need for alignment, and to create a less favorable contractual relationship with the bottling system.
The Court agrees. Plaintiff is entitled to depose Ms. Nooyi and Mr. Enrico. Plaintiff does not have the burden to justify his decision to depose Ms. Nooyi and Mr. Enrico. Rather, PepsiCo has the burden to show that good cause exists to prevent the deposition from going forward in order to "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). The Court finds that PepsiCo has not met this burden. PepsiCo has not demonstrated how either it or Ms. Nooyi and Mr. Enrico will be annoyed, embarrassed, oppressed, or subjected to undue burden or expense if Plaintiff is allowed to depose Ms. Nooyi and Mr. Enrico. In addition, the Court finds this case distinguishable from Thomas, 48 F.3d 478, Gazaway v. Makita U.S.A., Inc., No. 97-2287-JWL, 1998 WL 219771 (D.Kan. Apr. 16, 1998), and Cotracom, 2000 WL 796142, upon which PepsiCo relies. In Thomas, an employment discrimination case, the Tenth Circuit held that the district court did not abuse its discretion in granting a protective order to prevent the deposition of a the corporate defendant's chairman. Thomas, 48 F.3d at 483-84. In so ruling, the Tenth Circuit relied upon, inter alia, the chairman's lack of knowledge about the plaintiff and her work performance. Id. at 483. In addition, the defendant demonstrated that the deposition would impose "severe hardship" on the chairman. Id.
Similarly, in Gazaway, another employment discrimination case, Magistrate Judge Rushfelt concluded that the defendant was entitled to a protective order to prevent the deposition of its former president. Gazaway, 1998 WL 219771 at *3. There, the defendant demonstrated that it would be "unduly burdensome and expensive" to produce the witness for his deposition in Kansas City, rather than Japan, where he resided. Id. The defendant also established that the witness had no personal knowledge as to the plaintiff or the criteria used to implement the reduction in force at issue. Id. In addition, Judge Rushfelt held that Plaintiff's deposition notice violated the rule that the deposition of a corporate defendant or its officers should take place at its principal place of business. Id. Significantly, Judge Rushfelt ruled that in the event the deponent were to return to the United States, where the deposition would not be burdensome, Plaintiff could depose him. Gazaway, 1998 WL 219771 at *3.
In Cotracom, Magistrate Judge Rushfelt ruled that extraordinary circumstances justified precluding the depositions of two outside members of the board of directors and the general manager of plaintiff corporation. Cotracom, 2000 WL 796142 at *1. The court noted that all three were foreign witnesses who would have to travel to the United States to be deposed and several months had elapsed since discovery closed. Id. The Court held that, in light of these facts, it was unreasonable to permit international depositions of individuals who professed no knowledge of the limited matters subject to discovery. Id. at 3.
In contrast, in this case, the Court determines that Ms. Nooyi and Mr. Enrico possess knowledge regarding PepsiCo's Project Broncos. The Court also finds that this knowledge is unique and appears significant to some of Plaintiff's claims in this case. The fact that their depositions have already been taken in similar litigation is not persuasive. Counsel for Plaintiff should not be restricted to the questions and style of examination used by a different attorney in another case. Further, there is no issue in this case about the deposition being taken in an improper or burdensome location, the deposition resulting in a "severe hardship" or "undue burden" to deponents or PepsiCo or the deposition being noticed after the discovery deadline. Finally, the Court finds that there is no evidence, other than perhaps timing, that the depositions are retaliatory for an unsuccessful mediation.
In sum, the Court does not find that PepsiCo is entitled to a protective order on the basis that Ms. Nooyi and Mr. Enrico are senior-level executives who lack knowledge and have been previously deposed in other litigation.
IT IS THEREFORE ORDERED that Defendant PepsiCo's Motion for Protective Order to Preclude Two Noticed Depositions (doc. 223) is denied.
IT IS SO ORDERED.