“Heads of government agencies in particular ‘are not normally subject to 27 deposition’ absent extraordinary circumstances”
How later courts described this case
- “Heads of government agencies in particular ‘are not normally subject to 27 deposition’ absent extraordinary circumstances”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 KIM LYNCH, Case No. 21-cv-02932-EMC
8 Plaintiff,
ORDER RE DISCOVERY DISPUTE
9 v.
Docket No. 28
10 CITY & COUNTY OF SAN FRANCISCO,
11 Defendant.
12
13
14 The parties filed a letter raising to the Court three disputes with regards to discovery: (1)
15 Plaintiff’s request to depose Grant Colfax, Director of the San Francisco Department of Public
16 Health; (2) Plaintiff’s request for disclosure of contact information and to depose Michael Brown,
17 former employee for the City and County of San Francisco; and (3) Plaintiff’s request to extend
18 the fact discovery deadline, which expired on August 18, 2022, by two to four weeks. See Docket
19 No. 28 (“Letter Br.”). For the following reasons, the Court DENIES Plaintiffs’ requests on each
20 of the three issues.
21 1. Deposition of Grant Colfax: There is no dispute that Grant Colfax is the Director
22 of San Francisco’s Department of Public Health, a city department with over 8,000
23 employees. Letter Br. at 1. Given Mr. Colfax’s high rank within a government
24 agency, Defendant argues that the apex doctrine applies in order for Plaintiff to take
25 Mr. Colfax’s deposition. Id. at 3; Green v. Baca, 226 F.R.D. 624, 648 (C.D. Cal.
26 2005) (“Heads of government agencies in particular ‘are not normally subject to
27 deposition’ absent extraordinary circumstances”) (quoting Kyle Eng. Co. v. Kleppe,
1 of this doctrine to her request to depose Mr. Colfax.
2 “In determining whether to allow an apex deposition, courts consider (1) whether the
3 deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2)
4 whether the party seeking the deposition has exhausted other less intrusive discovery methods.”
5 K.C.R. v. Cnty. of Los Angeles, No. CV 13-3806 PSG SSX, 2014 WL 3434257, at *3 (C.D. Cal.
6 July 11, 2014) (citation omitted); see also Coleman v. Schwarzenegger, 2008 WL 4300437 at *2
7 (E.D. Cal. Sept.15, 2008) (“The extraordinary circumstances test may be met where high-ranking
8 officials ‘have direct personal factual information pertaining to material issues in an action,’ and
9 ‘the information to be gained is not available through any other sources[.]’”).
10 Here, even assuming Plaintiff has made a showing on the first prong, Plaintiff has not
11 shown that she has even attempted to “exhaust[] other less intrusive discovery methods.” Id.
12 Indeed, Plaintiff concedes that she did not propound any interrogatories or otherwise seek
13 information from Mr. Colfax, and, instead, summarily asserts that “there was no need for more
14 discovery and instead deposition [of Mr. Colfax] is the next logical step.” Letter Br. at 2.
15 Plaintiff, thus, has not carried her burden to show that “she exhausted other less intrusive
16 discovery methods,” and, thus, has not satisfied the standard to an apex deposition of Mr. Colfax.
17 Plaintiff’s request for Court order to depose Mr. Colfax is DENIED.
18 2. Deposition of Michael Brown: Plaintiff states that she was informed by Defendant
19 that Mr. Brown retired from his employment with Defendant. Plaintiff asserts that
20 “Defendant has not disclosed contact information [for] Mr. Brown,” Letter Br. at 1,
21 but Plaintiff does not contest Defendant’s representation that, “At no point did
22 Plaintiff’s counsel request Mr. Brown’s last known contact information,” Letter Br.
23 at 4. Plaintiff, furthermore, does not contest Defendant’s representations that
24 Defendant immediately informed Plaintiff that Mr. Brown retired from City service
25 after receiving Plaintiff’s deposition request on July 13, 2022, and that Defendant
26 reiterated this fact to Plaintiff’s counsel on August 16, 2022. Id. Plaintiff cites no
27 authority for the proposition that Defendant has “breached [its] obligations of
1 Plaintiff—reveal the contact information of a former employee. Letter Br. at 1.
2 Accordingly, the Court finds no basis to order Defendant to provide a supplemental
3 disclosure with Mr. Brown’s last known contact information. The record does not
4 indicate that Plaintiff’s failure to subpoena Mr. Brown for deposition in advance of
5 the discovery cutoff deadline was caused by Defendant. Thus, Plaintiff’s request
6 with regards to Mr. Brown is DENIED.
7 3. Extension of Fact Discovery: The deadline for fact discovery expired on August
8 18, 2022, the same date that the parties filed the instant dispute letter. Plaintiff
9 requests a 2-4 week extension of the cut-off date for fact discovery so that she can
10 depose Mr. Colfax and Mr. Brown. However, because the Court denies Plaintiff’s
11 requests as to those individuals, there is no need to extend the discovery deadline.
12 Thus, Plaintiff’s request for extension is DENIED.
13 This order disposes of Docket No. 28.
14
15 IT IS SO ORDERED.
16
17 Dated: August 19, 2022
18
19 ______________________________________
EDWARD M. CHEN
20 United States District Judge
21
22
23
24
25
26
27