United States District Court, E.D. Wisconsin
MIGUEL MURILLO, MICHAEL BAEHMAN, and BONNIE BAEHMAN Plaintiffs,
KOHL'S CORPORATION and KOHL'S DEPARTMENT STORES, INC., Defendants.
Stadtmueller U.S. District Judge
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
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).
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).
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).
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).
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).
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).
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 ...