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Murillo v. Kohl's Corp.

United States District Court, E.D. Wisconsin

October 18, 2016



          J.P. Stadtmueller U.S. District Judge

         On September 1, 2016, pursuant to Federal Rule of Civil Procedure 26(c) and Civil Local Rule 7, the defendants filed a motion for a protective order that would preclude the deposition of Michelle Gass. (Docket #49). Ms. Gass is Kohl's Chief Merchandising and Customer Officer, with only Kohl's Chief Executive Officer, Kevin Mansell, holding a higher position within the company. (Docket #50 at 2). In response, the plaintiffs argue that the defendants have failed to satisfy their burden to establish “good cause” in support of such a protective order. (See generally Docket #72). The defendants' motion is now fully briefed and ripe for adjudication. (Docket #50, #72, #76). For the reasons stated herein, the Court concludes that a protective order is warranted and will, therefore, grant the motion.

         1. BACKGROUND

         On February 18, 2016, the plaintiffs filed a complaint challenging the defendants' purportedly false and misleading marketing practices. (See Docket #1; see also Docket #14 (first amended complaint)). Specifically, the plaintiffs allege that the defendants have engaged in a pervasive, nationwide scheme by which they misrepresent the existence, nature, and amount of price discounts applied to “original” or “regular” item prices. (Docket #14 ¶¶ 1-9, 25-29). By fabricating or inflating their “original” prices, the plaintiffs claim the defendants' “sales” or “discounts” create the false impression that consumers are getting a better deal than what they actually are. (Docket #14 ¶¶ 1-9, 25-29). The plaintiffs also claim that the defendants falsely convey to consumers the impression that their “original” prices are significantly lower than those regularly charged for those products by other retailers. (Docket #14 ¶ 27). As a result of these purportedly deceptive practices, the plaintiffs claim to have purchased merchandise, or paid more for merchandise, than they would have absent deceptive price comparisons. (Docket #14 ¶ 26).

         According to the parties' briefs, the plaintiffs have deposed six witnesses during the discovery phase of this litigation. (Docket #50 at 1). These deponents include two 30(b)(6) witnesses, two senior buyers, a senior vice president, and a pricing compliance analyst, each of whom have testified how regular and sale prices are set at the defendants' stores. (Docket #50 at 1). In addition, the plaintiffs recently noticed the video-taped deposition of Kohl's Chief Merchandising and Customer Officer, Mr. Gass. (Docket #50 at 1).

         On the one hand, the defendants argue that, pursuant to Federal Rule of Civil Procedure Rule 26, courts have repeatedly recognized that senior corporate executives-often called “apex” witnesses-are particularly vulnerable to harassing and disruptive discovery requests designed to place undue pressure on corporate defendants. (See generally Docket #50, #76). For this reason, the defendants encourage the Court to restrict the plaintiffs' ability to depose Ms. Gass because the plaintiffs have failed to establish that: (1) Ms. Gass has “unique or specialized knowledge” necessary to the resolution of the case; and (2) the plaintiffs have exhausted alternative, less burdensome avenues for obtaining the information that is now being sought from her. (Docket #50 at 2-3). With regard to the latter point, the defendants argue that all of the witnesses that have been deposed in this case have consistently testified that the pricing decisions at the heart of this action are made by individual buyers based on competitive market factors and are not directed by upper level executives like Ms. Gass. (Docket #50 at 4). Thus, because: (1) the defendants have not mentioned or identified Ms. Gass in any pleadings, filings, or discovery responses; (2) her name does not appear in any document produced in this case; and (3) the defendants do not intend to call her as a witness at trial or offer her declaration in support of any key motions in this matter, the defendants argue that a protective order should issue. (Docket #50 at 5).

         The plaintiffs, on the other hand, argue that Ms. Gass, by virtue of her role within the company, is knowledgeable regarding a number of issues relevant to this lawsuit. (Docket #76 at 2, 5-6, 8). Though the plaintiffs have not articulated these issues in a consistent manner, at bottom, it appears that they are arguing that Ms. Gass is generally knowledgeable about the defendants':

• labeling, advertising, and marketing practices; and
• policies with respect to pricing-namely, financial plans, margins, markups.

(Docket #72 at 2, 5-6). Moreover, the plaintiffs claim that none of the other deponents in this case, nor any of the discovery that they obtained, have shed sufficient light on these topics. (Docket #72 at 6).

         The Court concludes that Ms. Gass's deposition would be unduly burdensome and disproportionate to the needs of this case given: (1) Ms. Gass's lack of personal knowledge with regard to the pricing decisions made by buyers; (2) the lack of evidence tending to suggest that Ms. Gass is responsible for, or involved in, directing a set of uniform policies that affect the defendants' pricing decisions; (3) the number of opportunities that the plaintiffs have had to depose the defendants' employees, all of whom have possessed relevant and responsive knowledge regarding the topics in question; and (4) other discovery that has already occurred in this case. Accordingly, the Court will grant the defendants' motion for a protective order. (Docket #49).

         2. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party….” Fed.R.Civ.P. 26(b)(1). “Although there is a strong public policy in favor of disclosure of relevant materials, Rule 26(b)(2) of the Federal Rules of Civil Procedure empowers district courts to limit the scope of discovery if ‘the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.'” Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (quoting Fed.R.Civ.P. 26(b)(2)). Though district courts have “broad discretion” over discovery matters, they “should consider ‘the totality of the circumstances, weighing the value of the material sought against the burden of providing it, ' and taking into account society's interest in furthering ‘the truthseeking function' in the particular case before the court.” Id. (internal citations omitted).

         The federal rules authorize the entry of an order protecting a party against discovery only when good cause is shown. Fed.R.Civ.P. 26(c). Under Rule 26(c), “good cause” exists when justice requires the protection of a “party or a person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). The party seeking a protective order bears the burden of making this “good cause” showing. See Milwaukee Elec. Tool Corp. v. Chevron N.A., Inc., No. 14-CV-1289-JPS, 2015 WL 4393896, at *5 (E.D. Wis. July 16, 2015). In ...

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