Page v. Corvias Group, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:20-CV-336-D

SHANE PAGE, et al., )

Plaintiffs,

V. ORDER

BRAGG COMMUNITIES, LLC, et al.,

Defendants.

This matter is before the court on Plaintiffs’ motion to compel the deposition of John

Picerne. [DE-137]. Defendants oppose the motion. [DE-143]. The motion is ripe and referred

to the undersigned for disposition. [DE-154]. For the reasons stated below, Plaintiffs’ motion is

denied.

I. Background

This case is about the quality and maintenance of privatized military housing at Fort

Bragg, North Carolina. Plaintiffs are military personnel and their families who were living in

military housing for which the corporate Defendants were responsible for the building and

maintenance under a lease with the United States. The court, in ruling on Defendants’ motion to

dismiss, allowed Plaintiffs to proceed on claims for violation of the North Carolina Residential

Rental Agreements Act, N.C. Gen. Stat. §§ 42-38 ef seg. (“RRAA”) against Bragg Communities

and Corvias Management, the North Carolina Unfair and Deceptive Trade Practices Act, N.C.

Gen. Stat. §§ 75-1.1 et seg. (“UDTPA”), negligence, gross negligence, reckless and willful

conduct, nuisance, breach of contract and breach of the implied warranty of good faith and fair

dealing against only Bragg Communities, and the Residential Lead-Based Paint Hazard Reduction

Act of 1992, 42 U.S.C. §§ 4851 et seg. (‘RLPHRA”), and declined to strike Plaintiffs’ class

allegations at the pleading stage. [DE-63].

The court entered a scheduling order, [DE-68], and the parties began discovery, resulting

in the filing of five motions to compel, [DE-89, -91, -93, -95, -97]. The subject of one of those

motions is relevant here, to wit: Plaintiffs wanted John Picerne, founder and Chairman of the

Advisory Board of Corvias Group, LLC, to be an additional custodian included in the search term

based discovery. Pls.’ Mot. [DE-89] at 2. Defendants responded that Picerne is an “apex

custodian,” and Plaintiffs had not made a compelling showing that all of the lower-level designated

custodians are insufficient to capture the necessary information. Defs.’ Resp. [DE-107] at 7-11.

The court determined that Defendants had not sufficiently demonstrated that Picerne was unlikely

to possess information relevant to Plaintiffs’ claims and had not demonstrated that including

Picerne as a custodian would be unduly burdensome or otherwise improper. [DE-126] at 5S.

Plaintiffs now seek to depose Picerne because his “involvement goes directly to the key issues,

including the timing of the corporate knowledge of housing problems at Fort Bragg, the executive

decisions that led to the housing problems and that were made during it, and the timing of company

efforts to upgrade the housing, as well as other relevant subjects.” Pls.’ Mem. [DE-138] at 2-3.

Il. Standard of Review

The general rule regarding the scope of discovery is found in Fed. R. Civ. P. 26(b)(1):

Parties may obtain discovery regarding any nonprivileged matter that is relevant to

any party’s claim or defense and proportional to the needs of the case, considering

the importance of the issues at stake in the action, the amount in controversy, the

parties’ relative access to relevant information, the parties’ resources, the

importance of the discovery in resolving the issues, and whether the burden or

expense of the proposed discovery outweighs its likely benefit. Information within

this scope of discovery need not be admissible in evidence to be discoverable.

“Relevancy under this rule has been broadly construed to encompass any possibility that the

information sought may be relevant to the claim or defense of any party.” Prasad v. Nallapati,

597 F. Supp. 3d 842, 846 (E.D.N.C. 2022) (first quoting Equal Emp’t Opportunity Comm’n v.

Sheffield Fin. LLC, No. 1:06-CV-889, 2007 WL 1726560, at *3 (M.D.N.C. June 13, 2007); then

citing Mainstreet Collection, Inc. v. Kirkland’s, Inc., 270 F.R.D. 238, 240 (E.D.N.C. 2010)

(“During discovery, relevance is broadly construed ‘to encompass any matter that bears on, or that

reasonably could lead to other matter that could bear on, any issue that is or may be in the case.””’)

(quoting Oppenheimer Fund., Inc. v. Sanders, 437 U.S. 340, 351 (1978))). Nevertheless, “[t]he

parties and the court have a collective responsibility to consider the proportionality of all discovery

and consider it in resolving discovery disputes.” Walls v. Ford Motor Co., No. 1:20CV98, 2021

WL 1723154, at *4 (M.D.N.C. Apr. 30, 2021) (citing Fed. R. Civ. P. 26 advisory committee’s

notes, 2015 Amendment (explaining that Rule 26 imposes an “obligation o[n] the parties to

consider the [proportionality] factors in making discovery requests, responses, or objections”)).

“A party may, by oral questions, depose any person, including a party, without leave of

court except as provided in Rule 30(a)(2). The deponent’s attendance may be compelled by

subpoena under Rule 45.” Fed. R. Civ. P. 30(a)(1). However, simply because “requested

information is discoverable under Rule 26[(b)] does not mean that discovery must be had.”

Nicholas v. Wyndham Int'l Inc., 373 F.3d 537, 543 (4th Cir. 2004). Rule 26(b)(2)(C) provides that

a district court must limit “the frequency or extent of discovery otherwise allowed” if it concludes

that “‘(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from

some other source that is more convenient, less burdensome, or less expensive; (ii) the party

seeking discovery has had ample opportunity to obtain the information by discovery in the action;

or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P.

26(b)(2)(C). Additionally, Rule 26(c) provides that “[t]he court may, for good cause, issue an

order to protect a party or person from annoyance, embarrassment, oppression, or undue burden

or expense.” Fed. R. Civ. P. 26(c)(1); McDougal-Wilson v. Goodyear Tire & Rubber Co., 232

F.R.D. 246, 249 (E.D.N.C. 2005) (“Discovery is not limitless,” and “[t]he court has the discretion

to protect a party from ‘oppression’ or ‘undue burden or expense.””) (quoting Fed. R. Civ. P.

26(c)). The party seeking protection from responding to discovery must make a particularized

showing of why discovery should be denied, and conclusory or generalized statements fail to

satisfy this burden as a matter of law. See Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc.,

334 F.3d 390, 402-03 (4th Cir. 2003); Jones v. Circle K Stores, Inc., 185 F.R.D. 223, 224

(M.D.N.C. 1999) (“Rule 26(c)’s requirement of a showing of ‘good cause’ to support the issuance

of protective order indicates that ‘[t]he burden is upon the movant to show the necessity of its

issuance, which contemplates a particular and specific demonstration of fact as distinguished from

stereotyped and conclusory statements.’”) (citation omitted).

Ill. Discussion

Plaintiffs contend Picerne has unique and special knowledge of the issues in this case based

on (1) his testimony before Congress regarding military housing issues during which he offered

an apology and stated Corvias was making efforts to fix problems, and (2) two documents

produced in discovery indicating (1) Picerne corresponded and interacted with high-ranking Army

officials about military housing problems and (ii) Picerne corresponded with Corvias personnel

about a specific Fort Bragg neighborhood. Pls.’ Mem. [DE-138] at 6-9. Defendants counter that

Picerne, who is not a party to this action, had no role in the day-to-day operations at Fort Bragg

and no unique or special knowledge regarding the claims, the information sought from Picerne is

duplicative of information possessed by individuals who have been or will be deposed, and

Picerne’s deposition is disproportional to the needs of the case. Defs.’ Resp. [DE-143] at 3-10.

As an initial matter, the court is not convinced that the apex doctrine has been adopted in

the Fourth Circuit or that it is necessary to the resolution of this matter. See Page v. Bragg

Communities, LLC, No. 5:20-CV-336-D, 2022 WL 17724407, at *3 (E.D.N.C. Dec. 15, 2022);

Duke Energy Carolinas, LLC v. NTE Caroinas II, LLC, No. 3:19-CV-00515-KDB-DSC, 2021 WL

5826786, at *3 (W.D.N.C. Dec. 8, 2021). Utilizing the standard set forth in Fed. R. Civ. P. 26(b),

Defendants, the party opposing the deposition, have sufficiently demonstrated that Picerne is

unlikely to possess information relevant to Plaintiffs’ claims that is not available from other less

burdensome sources and that deposing Picerne would be disproportionate to the needs of the case.

The court previously allowed Plaintiffs to obtain documentary discovery from Picerne

based on his public statements, including in congressional testimony, specific to Fort Bragg and

the types of issues raised in Plaintiffs’ claims. [DE-126] at 6. However, the documents produced

did not bear out that Picerne had specific knowledge about the events at issue or that his deposition

would add anything in light of the other corporate officers who have already been deposed.

Plaintiffs cite his public statements and two documents in support of deposing Picerne. However,

the cited materials demonstrate Picerne’s knowledge of the issues was general at best.

First, Picerne’s public statements were general and not specific to the issue in this case,

and Heath Burleson, who also testified before Congress and was assigned to Fort Bragg, was

deposed by Plaintiffs. Second, with respect to the email from General Perma to Picerne regarding

displaced families, Picerne forwarded the email to Tim Toohey, Janet Colantuono, and Heath

Burleson and stated, “Please share any thoughts so I may respond to his WO question properly.”

Ex. 8 [DE-138-8] at 2. This demonstrates that Picerne did not have personal knowledge regarding

the housing issues but rather relied on others in the organization to provide the necessary

information to respond to General Perma’s questions, and Plaintiffs deposed Toohey and Burleson.

Third, the internal email to Picerne regarding staffing to address housing issues likewise

demonstrates his lack of personal knowledge. Picerne responds by generally indicating his

concern and stating he will “let you know as soon as I have some answers!” Ex. 9 [DE-138-9] at

2. Again, Picerne’s response indicates he relied on others in his organization with knowledge of

these issues and was not himself involved at a level that would justify his deposition.

Picerne also provided a declaration, under penalty of perjury, that he was not involved in

the day-to-day operations at the military installations, including Fort Bragg, and that he possesses

no information that Burleson or Toohey would not possess. [DE-143-1]. Picerne stated he has

roles in other business ventures, charitable organizations, and philanthropic causes that take up a

tremendous amount of time. Jd. at 5. Picerne does not reside in North Carolina, is not a party to

this case, and does not have personal knowledge regarding the claims at issue that is not available

from other corporate officials. See Trustees of Purdue Univ. v. Wolfspeed, Inc., No. 1:21CV840,

2023 WL 4564558, at *4 (M.D.N.C. July 17, 2023) (“Where a plaintiff has already conducted

depositions of a defendant’s corporate representatives on certain topics, permitting a subsequent

deposition of the defendant’s CEO on the same or similar topics ‘would be unreasonably

cumulative or duplicative.’”) (citing E.E.0.C. v. Freeman, No. 09-CV-2573, 2012 WL 2370122,

at *2 (D. Md. June 21, 2012) (granting protective order to preclude deposition of defendant CEO

without consideration of Apex Doctrine)). Deposing Picerne is disproportional to the needs of the

case, where the factors of the parties’ relative access to relevant information, the importance of the

discovery in resolving the issues, and whether the burden or expense of the proposed discovery

outweighs its likely benefit, weigh against allowing the deposition. Accordingly, the motion to

compel is denied.

IV. Conclusion

For the foregoing reasons, Plaintiffs’ motion to compel, [DE-137], is denied.

So ordered, the 22nd day of August 2023.

B. vt Jr.

United States Magistrate Judge