Case Name: Stephen Weekly v. Sima Hariran, et al.
Case No.: 17CV308326 (lead case)

These consolidated actions arise out of an April 17, 2015 incident in which a motor vehicle driven by Defendant Sima Hariran struck and injured Plaintiff Stephen Weekly (and others) as he was exiting a Trader Joe’s store located at 22310 Homestead Road, Los Altos, California. Several of the defendants in these consolidated actions have made cross-claims against other defendants. Defendants Sima Hariran and Abdolaziz Arjomand (collectively “Defendants” for purposes of this motion) have filed a cross-complaint against Defendant Trader Joe’s (“Trader Joe’s”) and Trader Joe’s has filed a cross-complaint against Defendants.

Currently before the Court is Trader Joe’s motion for protective order, brought pursuant to Code of Civil Procedure (“CCP”) §§2017.020(a) and 2025.420(b), seeking an order blocking Defendants from taking the deposition of Trader Joe’s employee Fonda Burke (“Burke”). Ms. Burke is Trader Joe’s Director of Risk Management, a position Trader Joe’s claims is “akin to a claims adjuster and liaison between Trader Joe’s and regional defense counsel,” and also claims is an “apex” deponent position, a term usually reserved for very high-level corporate positions such as a CEO or CFO. (See Trader Joe’s Notice of Motion at p. 1:26-2:8.)

Defendants served Trader Joe’s with a notice of deposition on June 26, 2019, scheduling Ms. Burke’s deposition for July 26, 2019 in Burbank, California. In response Trader Joe’s submitted an objection to the deposition notice on July 8, 2019. Trader Joe’s objected on only three grounds: that Ms. Burke and counsel were unavailable for the scheduled date; that Ms. Burke “has no relevancy to the instant case,” and that her deposition “is barred by the Apex Doctrine, as she is a high-level member of management within the company,” citing Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1287 (“Liberty Mutual”). (See Plaintiff’s exhibits A & B.)

Motion for Protective Order
CCP §2017.020 allows a party to move for a protective order to limit the scope of discovery when the burden, expense or intrusiveness of the discovery sought has been demonstrated to clearly outweigh the likelihood the information sought will lead to the discovery of admissible evidence. CCP §2025.420 provides that “[b]efore, during, or after any deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (CCP §2025.420(a).) “The Court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden or expense.” (CCP §2025.420(b).) CCP §§2025.420(b) and 2031.060 provide nonexclusive lists of permissible directions that may be included in a protective order, such as that certain matters not be inquired into at a deposition, or that the scope of the examination be limited to certain matters. (CCP §2025.420(b)(9-10).)

The issuance and formulation of protective orders are largely discretionary. (Raymond Handling Concepts Corp. v. Super. Ct. (1995) 39 Cal.App.4th 584, 588.) The moving party bears the burden to show good cause for whatever order is sought. (Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 318 [burden not met by “entirely conclusory” declaration that “lacked any factual specificity”].) Here, Trader Joe’s does not seek an order establishing certain directions or limiting the deposition to certain matters, it seeks an order barring any deposition of Ms. Burke from taking place.

As an initial matter Trader Joe’s has not established that Ms. Burke is a high-level officer occupying a position at the “apex” (i.e., highest point) of its corporate hierarchy in the manner meant in Liberty Mutual (concerning the deposition of a president and CEO of a company). While the “apex” designation can apply to officers other than CEO, it denotes something more than an executive level position. The current motion does little more than assert, without supporting evidence, that Ms. Burke is a “high-level corporate official,” who should be “considered an ‘apex’ deponent.” (See Memo. of Points and Authorities at p. 3:21-27.) Notably, in her own declaration submitted with the motion (as exhibit A to the declaration of Trader Joe Counsel Heather Bean) Ms. Burke herself does not claim or state that her position (Director of Risk Management) is in any way considered to be “apex” level within Trader Joe’s.

Trader Joe’s argument that “Ms. Burke’s position is akin to a claims adjuster and liaison between Trader Joe’s and regional defense counsel,” (Bean Decl. at ¶3) is also unpersuasive as support for a protective order barring any deposition of Ms. Burke from taking place. Any corporate entity represented by outside counsel in litigation must necessarily communicate with its counsel through some natural person, that fact alone does not make such a person a part of the legal team representing the corporate entity or the equivalent of an insurance claims adjuster. Trader Joe’s offers no real evidence in support of this argument apart from conclusory statements in the declaration from counsel comparing Ms. Burke to an insurance claims adjuster. Ms. Burke’s own declaration does not, apart from stating that she acts as a liaison with “regional defense counsel,” provide support for the argument that she is somehow serves on the legal team defending the case.

The other assertion made in Trader Joe’s objection to the deposition notice (but not argued in the present motion) that Ms. Burke “has no relevancy” to this case would also not support a protective order barring any deposition from taking place. Discovery is allowed for any matters that are not privileged and relevant to the subject matter, and a matter is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence. (CCP §2017.010.) The “relevant to the subject matter” and “reasonably calculated to lead to the discovery of admissible evidence” are applied liberally in favor of discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.) For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) “Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Id., citing Davies v. Superior Court (1984) 36 Cal.3d 291, 301.)

As Trader Joe’s “Director of Risk Management” and the individual authorized to verify Trader Joe’s discovery responses on behalf of the corporation in this litigation, Ms. Burke’s deposition testimony may reasonably lead to the discovery of admissible evidence. As Defendants point out in their opposition (and as the Court recalls from the recent June 25, 2019 motion to compel) Ms. Burke verified Trader Joe’s further responses to requests for production of documents propounded by Defendants, some of which were unilaterally rewritten by Trader Joe’s to only apply “to the subject store,” and which stated—after Trader Joe’s counsel had told Defendants for weeks that “voluminous” potentially responsive documents were being reviewed—that Trader Joe’s was not in possession of any responsive documents and did not believe that they ever existed.

Trader Joe’s motion for protective order is DENIED for failure to show good cause for the requested protective order barring Fonda Burke’s deposition from taking place. As no monetary sanctions were requested by either side, none are awarded.