United States District Court, W.D. Pennsylvania
Barry Fischer United States District Judge.
before the Court is Plaintiff's Motion to Compel the
Discovery Deposition of Alan McKim, (Docket No. );
Defendant Clean Harbors, Inc.'s response in opposition,
(Docket No. ); Plaintiff's reply, (Docket No.
); and Clean Harbors, Inc.'s sur-reply, (Docket No.
). After careful consideration of the parties'
submissions, and for the following reasons, Plaintiff's
Motion to Compel the Discovery Deposition of Alan McKim,
(Docket No. ), is GRANTED.
initial matter, the Court notes that it has previously set
forth the relevant facts and procedural background of this
case in its prior Order denying Defendants' Motion for a
Protective Order. (See Docket No. 122 at 1-2). The
Court also provided an extensive overview of the amendment of
Federal Rule of Civil Procedure 26, which governs discovery
and now includes a discussion of proportionality.
(Id. at 3-5). After considering the parties'
arguments against the facts of this case, the Court concluded
that Plaintiff's request to depose McKim satisfied Rule
26(b)(1) and that Defendants had failed to demonstrate good
cause warranting a protective order. (Id. at 6). In
so holding, the Court explained:
With respect to Rule 26(b)(1), the issues at stake are
certainly of importance to Plaintiff, who sustained severe
injuries as a result of the described explosion.
Plaintiff's injuries as described are more than
significant and are long-lasting. The Court presumes that
Plaintiff has also incurred hefty medical bills and other
losses. Defendants are relatively large companies, have
greater resources, and greater access to the information
pertaining to both the claims and defenses.
Further, the depositions of McKim and [Anthony] Celluci are
important in resolving the issues pertaining to both
jurisdiction and potential liability, and the likely benefit
of such proposed discovery outweighs its burden or expense.
To this end, McKim's and Celluci's names appear
repeatedly on issues of safety in the documents provided to
(Id. at 6 (footnote omitted)). The Court also noted
that “Plaintiff has stated that he will travel to
Boston, Massachusetts, where both McKim and Celluci are
located, to conduct the depositions.” (Id. at
7). The Court suggested that “the depositions be
scheduled at the same time that is convenient for McKim and
Celluci, and that they be narrowly focused.”
(Id. at 8).
Clean Harbors, Inc. filed its response in opposition to the
instant motion, the Court ordered Plaintiff to produce a hard
copy of the deposition of Chip Duffie. (Docket No. 127).
Having reviewed same, along with the other documents that
parties have filed in support of their respective positions,
the Court will compel McKim's deposition. As the Court
has previously stated, McKim's name repeatedly appears on
issues of safety in the documents that the parties have
provided. (See Docket No. 122 at 6). Duffie's
deposition and the exhibits to same further confirm that
McKim's deposition is important “in resolving the
issues pertaining to both jurisdiction and potential
liability, and the likely benefit of such proposed discovery
outweighs its burden or expense.” (Id.).
Specifically, Duffie's deposition makes clear that McKim
was the only signatory of Clean Harbors, Inc.'s corporate
health, safety, and environmental commitment policies, and he
had the authority to ensure that they were in place. McKim
initiated the safety steering committee and ordered broader,
more intense, longer, and more focused training on safety. He
recommended that a formalized board be established to
summarize incidents and bring them to the safety steering
committee for review and approval, and he ordered that all
safety systems of record by on one system. Following
Plaintiff's accident, McKim requested that gas-fired
heaters not be used, and he suggested a ban on space heaters.
extent that Clean Harbors, Inc. again asserts that
McKim's deposition could be considered to be an
“apex” deposition, (see Docket No. 126
at 2-3), the Court again concludes that same is not
sufficient to bar it. The Court reiterates that:
“The ‘apex doctrine' is an analytic framework
used by courts is assessing whether to permit the depositions
of individuals at the ‘apex' of corporations and
other entities.” United States ex rel. Galmines v.
Novartis Pharm. Corp., No. 06-CV-3213, 2015 U.S. Dist.
LEXIS 109997, at *3 (E.D. Pa. Aug. 20, 2015). “The
doctrine recognizes that depositions of high-level officers
severely burdens those officers and the entities they
represent, and that adversaries might use this severe burden
to their unfair advantage.” Id. But, the apex
doctrine does not apply where an officer possesses personal
knowledge of the facts underlying this litigation. In re
Tylenol (Acetaminophen) Mktg. Sales Practices & Prods.
Liab. Litig., No. 14-MC-72, 2014 U.S. Dist. LEXIS 89981,
at *7 (E.D. Pa. July 1, 2014) (“Federal courts have the
ability to prohibit the depositions of high-level executives
in cases where the executive has no firsthand knowledge of
the facts, under a theory which has come to be known as the
apex doctrine.”). As discussed above, the documents
that Plaintiff has provided to the Court plainly demonstrate
that both McKim and Celluci possess personal knowledge of the
facts underlying this litigation. (See Docket No.
117). The apex doctrine, therefore, does not preclude
McKim's and Celluci's depositions. See,
e.g., Scranton Prods. v. Bobrick Washroom Equip.,
Inc., No. 14-CV-853, 2017 U.S. Dist. LEXIS 19488, at *7
n.1 (M.D. Pa. Feb. 10, 2017) (holding that the apex doctrine
did not apply where the officials had knowledge that could
not be obtained through the depositions of the
defendant's other employees); In re Tylenol
(Acetaminophen) Mktg. Sales Practices & Prods. Liab.
Litig., 2014 U.S. Dist. LEXIS 89981, at *11 (same);
Otsuka Pharm. Co. v. Apotex Corp., No. 07-1000, 2008
U.S. Dist. LEXIS 73515, at *15-16 (D.N.J. Sept. 12, 2008)
(noting that “there is not a protective blanket that
prohibits discovery from highly-placed executives” and
denying the defendant's motion for a protective order
because the defendant's chief executive officer had
unique knowledge that other witnesses were unable to
(Docket No. 122 at 6-7). Clean Harbors, Inc. has not provided
any other persuasive authority supporting its position that
McKim should not be deposed. (See Docket Nos. 126,
131). Indeed, Clean Harbors, Inc. primarily relies upon
Cantor v. Equitable Life Assurance Society of the
United States, No. 97-5711, 1998 U.S. Dist. LEXIS
13240 (E.D. Pa. Aug. 26, 1998), wherein the Eastern District
granted a motion for a protective order with respect to
specific depositions because the high-level executives had
not handled the decision to terminate the plaintiff's
benefits. As delineated above and in the Court's Order
denying Defendants' Motion for a Protective Order,
McKim's deposition is warranted under Rule 26. As a final
matter, the Court reiterates its previous suggestion that the
deposition be taken after all other witnesses have been
deposed, that it be narrowly focused, and that it be
scheduled at a time the is convenient for McKim. (Docket No.
122 at 7-8).
these reasons, IT IS HEREBY ORDERED that Plaintiff's
Motion to Compel the Discovery Deposition of Alan ...