Opinion
05 Civ. 639 (GEL) (KNF).
August 30, 2007
MEMORANDUM AND ORDER
I. BACKGROUND
This is an employment discrimination action. On April 27, 2007, the plaintiff noticed, inter alia, the deposition of Kyota Omori ("Omori"), the defendant's Managing Executive Officer and Chief Executive Officer for the Americas. The defendant objected to Omori's deposition, contending he was neither a decision-maker nor involved substantively in the termination of the plaintiff's employment with the defendant. On May 4, 2007, the parties agreed that the plaintiff would withdraw, without prejudice, the notice of Omori's deposition he had given previously. The plaintiff reserved the right to renew the notice of Omori's deposition should the depositions of other executives of the defendant establish Omori's involvement in the termination of the plaintiff's employment. The defendant reserved the right to object to the renewed notice of Omori's deposition based on relevance or other grounds.
In June 2007, the plaintiff deposed: (1) Mitsuhiro Yamawaki ("Yamawaki"), the head of the defendant's Investment Banking Division for the Americas; (2) Thomas Hasek ("Hasek"), the head of the defendant's Human Resources Department in the Americas; and (3) Beryl Lewis ("Lewis"), the defendant's Human Resources representative, who has responsibility for its Investment Banking Division in the Americas. On June 18, 2007, the plaintiff renewed his notice respecting Omori's deposition. The following day, the defendant objected to the renewed notice of deposition, asserting the depositions of the defendant's personnel, named above, demonstrated that no basis existed for Omori's deposition and advised that Omori would not be produced for a deposition without an order from the Court. On July 3, 2007, the defendant made an application for a protective order, pursuant to Fed.R.Civ.P. 26(c), seeking to: (a) bar the plaintiff from deposing Omori; and (b) recover from the plaintiff the reasonable expenses, including attorney's fees, it incurred in making the instant application. The plaintiff opposed the application.
II. DISCUSSION
The defendant contends deposing Omori, the most senior officer it employs in the United States, imposes an extraordinary burden on the defendant and is a waste of Omori's time. Furthermore: (a) Omori does not have any personal knowledge of any relevant factual information; (b) Omori does not have any unique knowledge thus, his testimony would amount to a duplication of the testimony provided by other executives employed by the defendant, whom the plaintiff has deposed; and (c) the negligible benefit, if any, to be gained by deposing Omori, and the timing of the renewed notice to depose him, show the plaintiff's intent to harass Omori and to disrupt the defendant's business operations.
The plaintiff asserts Omori is "a critical witness in this case" because he was part of the consensus allegedly reached by the defendants' executives in making the decision to terminate the plaintiff's employment. Furthermore, according to the plaintiff, Omori could testify about: (i) the defendant's staff rotation system; (ii) the promises made by the defendant to various United States government authorities not to discriminate, in violation of employment laws; and (iii) other issues pertaining to the defendant's operations in the United States. Moreover, the plaintiff asserts, Omori is not a chief executive officer, but only one of many managing executive officers employed by the defendant and, while the plaintiff did not report to Omori and the Human Resources Department reported to Koichi Sakamoto (" Sakamoto") in Japan, Sakamoto did report to Omori; therefore, deposing Omori is appropriate.
Fed.R.Civ.P. 26(b)(1) provides, in pertinent part, that a party "may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party," and that a court, for good cause, "may order discovery of any matter relevant to the subject matter involved in the action." High-level executives are not immune from discovery. See Six West Retail Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 102 (S.D.N.Y. 2001).
However, a court may limit discovery by making "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). "An order barring a litigant from taking a deposition is most extraordinary relief." Speadmark, Inc. v. Federated Dep't Stores, Inc., 176 F.R.D. 116, 118 (S.D.N.Y. 1997). The party seeking to bar the deposition has the burden of showing "that the proposed deponent has nothing to contribute."Id. In considering whether to shield a corporate executive from discovery demands, a court must consider the likelihood of harassment and the potential disruption of the executive's business. See General Star Indem. Co. v. Platinum Indem. Ltd., 210 F.R.D. 80, 83 (S.D.N.Y. 2002). A corporate official's busy schedule is not a basis for barring otherwise proper discovery. See id. A protective order is warranted unless it can be demonstrated that a senior corporate official has "personal knowledge of relevant facts or some unique knowledge that is relevant to the action." See In re Ski Train Fire, No. MDL 1428, 2006 WL 1328259, at *10 (S.D.N.Y. May 16, 2006). Nevertheless, where other witnesses have the same knowledge as the prospective deponent, a court may prevent a redundant deposition of a high-ranking corporate official. See Consol. Rail Corp. v. Primary Indus. Corp., Nos. 92 Civ. 4927, 92 Civ. 6313, 1993 WL 364471, at *1 (S.D.N.Y. Sept. 10, 1993).
To support its application for a protective order, the defendant submitted, inter alia, Yamawaki's deposition testimony that: (1) at all pertinent times, he reported directly to, and discussed the termination of the plaintiff's employment with, executives located in Japan; (2) he communicated, for approval, his recommendation to terminate the plaintiff's employment to Tetsuya Satou and Mr. Akikusa, the most senior executive in the defendant's investment banking group, in Japan; (3) he did not need Omori's approval to terminate the plaintiff's employment; (4) Omori did not ask to be kept informed about the termination of the plaintiff's employment; (5) he informed Omori about the decision to terminate the plaintiff's employment and that he was awaiting approval from Japan, orally, in Omori's office, in the presence of Hiroshi Sakamoto, head of the defendant's Planning Office; (6) he informed Omori about the termination of the plaintiff's employment via an e-mail message, dated May 12, 2005, because it was his responsibility to inform Omori of any significant events related to the operations Yamawaki supervised; and (7) he informed Omori via an e-mail message, dated May 16, 2005, about the sequence of events after the termination of the plaintiff's employment, although Omori did not request that information.
The defendant also submitted Hasek's deposition testimony that a request for the termination of the plaintiff's employment was submitted to him directly by Yamawaki. Additionally, the defendant submitted copies of e-mail messages Yamawaki sent to executive-level officials in Japan concerning the termination of the plaintiff's employment, to demonstrate that Omori was not the recipient of those communications and that he was not involved in the decision-making process that culminated in the plaintiff's dismissal from the defendant's employ.
Omori submitted an affidavit in support of the instant application. In it, he stated that the securitization group, for which the plaintiff worked, did not report to him and that his approval to terminate the plaintiff's employment was neither required nor sought by anyone. Furthermore, Omori stated he: (i) was not involved in any discussions related to the termination of the plaintiff's employment before or after the termination; and (ii) learned about the circumstances of the plaintiff's employment termination from the defendant's in-house counsel. In addition, Omari noted, in his affidavit, that the extent of his "personal knowledge," about the circumstances of the termination of the plaintiff's employment, is what he learned from the defendant's in-house counsel.
In his opposition to the defendant's application for a protective order, the plaintiff submitted, inter alia, a copy of his rebuttal to the defendant's position statement before the United States Equal Employment Opportunity Commission ("EEOC"), in which he asserted that, at the time of his termination, Hasek advised him that "the consensus for his dismissal" was reached by the managers in the United States, including Omori. The plaintiff also submitted his deposition testimony, describing a 2004 Christmas party conversation he had with Omori, during which they "were talking about people's ages and how it felt to be older and that he wasn't the oldest person in the bank" and that the plaintiff was a year or two older than Omori. The plaintiff stated that he did not take offense at that time but that "after [he] was fired and now [he takes] offense at every age related comment that the bank made to me." The plaintiff also testified that Hasek showed him a certain picture and said "didn't you notice that everybody in that picture was Asian? Like they should be something different if he's going to Tokyo." The plaintiff testified further that "Hasek told me that this has been decided by the senior general managers in New York, the group of general managers in New York and by Mr. Omori and it's gone to Tokyo and there is no appeal." The plaintiff recalled that Yamawaki was present at the time Hasek made these statements and "he mentioned the names Mr. Sakamoto, Mr. Omori . . . and Mr. Kiho." Additionally, the plaintiff submitted deposition testimony given by James W. Rhodes ("Rhodes"), a former employee of the defendant, that he did not know, but he assumed Omori may have been involved in the decision to terminate Rhodes' employment with the defendant.
The Court notes the plaintiff's failure to comply with the Court's Individual Rules of Practice. The plaintiff's "memorandum of law" in opposition to the defendant's application is 18 pages long, but contains no table of contents. Moreover, the plaintiff's "memorandum of law" lacks any citation to caselaw.
The Court finds that the defendant has submitted evidence sufficient to establish that Omori has neither personal knowledge of relevant facts nor unique knowledge about the termination of the plaintiff's employment. The Court finds further that plaintiff failed to rebut the defendant's contentions by failing to: (i) address the extensive caselaw cited by the defendant, that supports barring the deposition of a senior corporate executive where the party seeking the deposition fails to make a showing that the executive has either personal knowledge of relevant facts or some unique knowledge that is relevant to the action; (ii) make citation to any authority supporting his arguments; and (iii) provide evidence that Omori has either personal knowledge of relevant facts or unique knowledge relevant to this action. The plaintiff also failed to submit any evidence to show that Omori is not a chief executive officer.
Furthermore, the plaintiff's allegation, in his rebuttal statement to the EEOC, that Hasek advised him that the dismissal consensus was achieved with input from Omori, is not competent evidence that can rebut the defendant's evidence of Omari's lack of personal knowledge about the decision to terminate the plaintiff's employment. The plaintiff's deposition testimony, that Hasek told him "this has been decided by the senior general managers in New York, the group of general managers in New York and by Mr. Omori," is vague. It is not clear, from the one page deposition transcript excerpt before the Court, where this text appears, what relation, if any, this testimony has to the testimony immediately preceding it, in which Hasek said "didn't you notice that everybody in that picture was Asian? Like they should be something different if he's going to Tokyo," or what the context was within which the reference to Omori was made.
Similarly, a conversation the plaintiff had with Omori, during the 2004 Christmas party, about the age of the defendant's employees, does not demonstrate Omori has personal knowledge of facts relevant to or unique knowledge about the termination of the plaintiff's employment. Moreover, Rhodes' deposition testimony, that he assumed Omori might have been involved in the termination of his own employment, is irrelevant to the plaintiff's allegation that Omori was part of the group that reached consensus regarding the termination of the plaintiff's employment.
III. CONCLUSION
The defendant has satisfied its burden of showing that Omori has neither personal knowledge of relevant facts nor unique knowledge with respect to the termination of the plaintiff's employment. Therefore, the defendant's application for a protective order, made pursuant to Fed.R.Civ.P. 26(c), is granted.The defendant is directed to serve and file, on or before September 7, 2007, competent evidence establishing the reasonable expenses, including attorney's fees, it incurred in making the instant application. Any objection to the reasonableness of the defendant's expenses, including attorney's fees, shall be served and filed, by the plaintiff, on or before September 14, 2007. Any reply shall be served and filed on or before September 21, 2007.
SO ORDERED: