Ever.Ag, LLC v. Milk Moovement, Inc. ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 EVER.AG, LLC, No. 2:21-cv-02233 WBS AC 11 Plaintiff, 12 v. ORDER 13 MILK MOOVEMENT, INC., a/k/a Milk Moovement, LLC, a foreign corporation, 14 Defendant. 15 16 17 The parties appeared before the court on May 24, 2023 for a discovery conference. ECF 18 No. 338. This case has been before the court numerous times throughout the course of discovery 19 and the parties are aware of the history and status of the case; it will not be repeated here. At the 20 most recent discovery conference, the court reserved a ruling on the single issue of whether Scott 21 Sexton, CEO of Ever.Ag, LLC (formerly Dairy, LLC) is an appropriate deponent and custodian 22 document production. 23 This issue has been before the court before. Plaintiff has consistently argued that Mr. 24 Sexton is exempt from discovery under the “apex doctrine” which holds that the “deposition of a 25 high-level official or executive, often referred to as an ‘apex’ deposition, may be precluded by the 26 Court under Rule 26(c) where the discovery sought ‘can be obtained from some other source that 27 is more convenient, less burdensome, or less expensive.’” Est. of Levingston v. County of Kern, 28 320 F.R.D. 520, 525 (E.D. Cal. 2017) (quoting Apple Inc. v. Samsung Electronics Co., Ltd., 282 1 || F.R.D. 259, 263 (N.D. Cal. 2012)). First, the party objecting to a deposition must demonstrate 2 || the proposed deponent “is sufficiently ‘high-ranking’ to invoke the deposition privilege.” 3 || Thomas v. Cate, 715 F.Supp.2d 1012, 1049 (E.D. Cal. 2010) (citing United States v. Sensient 4 | Colors, Inc., 649 F.Supp.2d 309, 320 (D. N.J. 2009)). Upon this showing, the Court then should 5 || consider: “(1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts 6 || at issue in the case and (2) whether the party seeking the deposition has exhausted other less 7 || intrusive discovery methods.” Apple, Inc., 282 F.R.D. at 263; see also Coleman v. 8 | Schwarzenegger, 2008 WL 4300437 at *2 (E.D. Cal. Sept. 15, 2008) (“The extraordinary 9 || circumstances test may be met where high-ranking officials ‘have direct personal factual 10 | information pertaining to material issues in an action,’ and ‘the information to be gained 1s not 11 || available through any other sources.’” [citations omitted] ). 12 On January 31, 2023, the undersigned issued an order declining to add Mr. Sexton to the 13 || list of deponents and custodians because the argument presented at the time did not persuade the 14 | court that Mr. Sexton was anything more than an apex executive. ECF No. 226. Since that time, 15 || evidence has been presented that indicates Mr. Sexton’s direct involvement with the matters at 16 || issue in this case have been more extensive, and included more direct involvement, than 17 || previously believed. ECF Nos. 332 at 4-6, 333. Additionally, the recent order allowing 18 | defendants’ antitrust counterclaims to proceed significantly expands the scope of this case and the 19 | likelihood that Mr. Sexton has relevant, unique knowledge. ECF No. 327. While Mr. Sexton 20 || remains sufficiently high-ranking to support invocation of apex doctrine, the court can no longer 21 || conclude that Mr. Sexton’s involvement is too remote, duplicative, or disinterested to warrant his 22 || inclusion in the discovery process. It is apparent at this juncture that Mr. Sexton has unique first- 23 || hand, non-repetitive knowledge and that he is an appropriate custodian and deponent. Discovery 24 || may proceed in accordance with the Local and Federal Rules. 25 IT IS SO ORDERED. 26 || DATED: June 2, 2023 Aterr— Sa , 27 ALLISON CLAIRE 98 UNITED STATES MAGISTRATE JUDGE