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Wagner v. Novartis Pharmaceuticals Corp.

November 8, 2007

ROBERT WAGNER, PLAINTIFF,
v.
NOVARTIS PHARMACEUTICALS CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Guyton

MEMORANDUM AND ORDER

This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment. [Doc. 6]. On October 16, 2007, the parties appeared before the Court for a hearing on a discovery dispute between the parties regarding whether Thomas Ebeling ("Ebeling"), CEO of Novartis Pharmaceuticals Corporation,*fn1 could be deposed in this matter. Attorneys Anne Lamkin, James K. Scott, and Cynthia Wilkinson appeared representing Plaintiff Robert Wagner ("Plaintiff"), and attorneys Aaron Gelb, Lawrence Summers, and Patty Wheeler appeared representing Defendant Novartis Pharmaceuticals Corporation ("Defendant"). At the conclusion of the hearing, the parties requested the opportunity to file post hearing briefs. The parties were given until October 23, 2007, to file supplemental briefs and until October 30, 2007, to file responses to any supplements. The parties filed their supplemental briefs [Docs. 23, 24] on October 23, 2007, and Defendant filed a response [Doc. 25] on October 30, 2007. All supplements and responses having been filed, the matter is now ripe for adjudication.

Defendant moves the Court to preclude Plaintiff from deposing Ebeling in this matter. Defendant contends that Plaintiff has already deposed Ebeling in a similar matter, and during that earlier deposition had the opportunity to question Ebeling as to Ebeling's knowledge of events related to the instant litigation. Defendant contends that Ebeling's prior testimony revealed that Ebeling lacks any personal knowledge of the events at issue in this case, and thus that the deposition of Ebeling would be a waste of time and amount to nothing more than harassment of a high level executive.

Plaintiff disagrees, arguing that Ebeling does have personal knowledge of the events at issue and that Ebeling's deposition should thus be allowed. Plaintiff contends that Defendant's website contains a webpage entitled "Ask Ebeling" [See Doc. 24-2] and that Plaintiff submitted questions to Ebeling through the "Ask Ebeling" webpage. Plaintiff contends that, because Ebeling was involved in answering Plaintiff's question to "Ask Ebeling," that Ebeling does have unique personal knowledge of the events at issue, and thus his deposition should be allowed.

Courts have held that "[w]hen a party seeks to depose high-level decision makers who are removed from the daily subjects at issue in the litigation, the party must first demonstrate that the proposed deponent has 'unique personal knowledge' of facts relevant to the dispute." Marscio v. Sears Holding, No. 06-10235, 2007 U.S. Dist. LEXIS 22757, at *4 (E.D. Mich. Mar. 29, 2007) (citations omitted). "In the absence of a showing of unique personal knowledge, the circuit courts, including the Sixth Circuit, have upheld the entry of a protective order precluding the depositions of high level company executives." Id. (citing Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998) (upholding denial of plaintiff's request to depose high-ranking officer where there was no showing that individual was involved in the termination at issue); Lewelling v. Farmers Ins. of Columbus, Inc., 879 F.2d 212, 218 (6th Cir. 1989) (upholding district court's exercise of discretion in granting protective order barring plaintiffs from deposing their employer's chief executive officer, who lacked personal knowledge of relevant facts)).

In the instant matter, it is undisputed that Ebeling is a high level executive of Defendant. Thus, in order to depose Ebeling, Plaintiff must show that Ebeling possesses unique personal knowledge of facts relevant to the instant litigation. Plaintiff argues that Ebeling possesses unique personal knowledge related to Plaintiff's submission of questions to the Ask Ebeling webpage on July 14, 2004, August 3, 2004, and September 2, 2005. The July 14, 2004 inquiry related to Plaintiff being denied the 2002 International Sales Award for the Veterans Administration sales force. [Doc. 23-8 at 1] On August 3, 2004, Plaintiff re-submitted the July 14, 2004, inquiry because he had not received a response to the July 14, 2004 inquiry. [Id. at 2] The September 20, 2005, submission was another re-submission of the July 14, 2004 inquiry. [Id. at 4] Thus, each of Plaintiff's submissions to the Ask Ebeling webpage related to Plaintiff being denied the 2002 International Sales Award.

However, at the earlier deposition of Ebeling, Ebeling was asked about his knowledge of the events relating to the instant lawsuit. Specifically, Defendant points to the following lines of questioning:

Q: Did anybody ever tell you that there's an employee by the name of Bob Wagner who also made complaints that he was being discriminated against because of his military commitments?

A: I just learned about it yesterday. [Doc. 26-2 at 2]

Q: Let me show you what I've marked as Plaintiff's Exhibit 10, which is an e-mail from Jeff Griffin to an employee by the name of Robert Wagner.

A: Mm-hmm.

Q: Have you ever seen a copy of this before today?

A: No. [Id. at 3]

Q: Did anybody ever tell you that an employee by the name of Robert Wagner had been informed that he could not put ...


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