By Jerry Carter. From time to time, a party in Business Court litigation will seek to take the deposition of the other party’s highest ranking officer. The party seeking the deposition will insist that the highest ranking officer has relevant information. On the other hand, the highest ranking officer will suggest that he or she has no first-hand knowledge and that the deposition is sought merely for the purpose of harassment.
This scenario played out recently in a Business Court case involving a hospital’s efforts to enforce a non-compete covenant against a former employee. The ex-employee sought the deposition of the hospital’s interim President on the basis that the President would know why the hospital uses non-competition agreement, how the hospital decides which non-competition agreements to litigate, how those policies were implemented in this case, what irreparable harm the hospital suffered, how the lawsuit serves the public interest, what legitimate business interests are served through enforcement of the non-competition agreement, whether the board was fully informed of the facts underlying the lawsuit, what information the board relied on, and which lawyers “deceived the board.”
However, the interim President persuaded the Discovery Commissioner by submitting an affidavit disavowing any participation in, or knowledge of, the negotiation, execution, approval of the agreement, any relevant events leading to the ex-employee’s departure from the hospital, or any relevant events that occurred thereafter. The Discovery Commissioner said:
“Of course, the fact that a deponent lacks “first-hand knowledge” would not necessarily preclude a deposition of that individual in all cases. By deposing that person, the examining party might learn the source or sources of that person’s knowledge, which ultimately could lead to admissible evidence. A major problem for Defendant in connection with this motion, however, is that other individuals within Plaintiff’s organization are reasonably likely to possess the desired first-hand knowledge, or they might possess the same second-hand information as Mr. Line. In either circumstance, depositions of those other individuals arguably would obviate Mr. Line’s deposition.”
“As explained above, Plaintiff has presented evidence that Mr. Line had no personal knowledge of or involvement in relevant events, and that he had no interaction with Defendant until the settlement conference. Absent any evidence to the contrary, or some indication that Mr. Line will be used as a witness in this case by Plaintiff, the Court finds that Plaintiff has shown good cause for issuance of the requested protective order. Therefore, Defendant is not entitled to depose Mr. Line at this time. Although the Court does not rule out the possibility that a deposition of Mr. Line might be permitted in the future, Defendant must first, at a minimum, attempt to obtain the desired information from sources that are more accessible, and that are more likely to possess the desired information (e.g., through a deposition pursuant to NRCP 30(b)(6)).”