United States District Court, E.D. Louisiana
DE'ON MOODY, on behalf of himself and all other similarly situated
ASSOCIATED WHOLESALE GROCERS, INC.
Edward Williams for Plaintiffs.
L. Roberts for Defendant.
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE
the Court is Defendant's Motion to Quash and For
Protective Order Prohibiting the Deposition of President and
CEO, David Smith (R. Doc. 90), originally set for submission
on August 28, 2019. As Plaintiffs have unilaterally noticed
the deposition of President and CEO of Associated Wholesale
Grocers Inc. David Smith for Monday, August 19, 2019, and, as
this date precedes Defendant's motion's submission
date, Defendant sought expedited consideration, which this
Court subsequently granted (R. Doc. 92). On August 15, 2019,
at 11:30 a.m. this Court held oral argument on
Defendant's motion via telephonic communications.
De'on Moody filed this suit, as a collective action, in
the United States District Court on October 7, 2017, under
the Fair Labor Standards Act (“FLSA”) alleging,
inter alia, that his former employer, Associated
Wholesale Grocers, Inc. (“AWG”), misclassified
supervisory or managerial employees at AWG's Pearl River
facility as exempt and failed to pay them due overtime
compensation and damages. R. Doc. 1. Since that time,
seventeen (17) additional former AWG supervisors have
opted-in to the litigation. During the course and scope of
discovery, parties took the depositions of many of the opt-in
class members, to include the deposition of Jeffrey Tait,
which took place on July 26, 2019. R. Doc. 90-1, p. 2.
in that deposition, Tait testified that in late 2013 or early
2014 he had an in-person conversation with President and CEO
David Smith as to the working conditions. Id. Tait
had this conversation with David Smith and in the presence of
Human Resource Manager Floyd Baker to “express concern
about the amount of hours that we [Mr. Tait] were working as
supervisors” and to “complain about the amount
of hours we worked when you transition it to breaking it down
to an hourly pay rate, that it wasn't fair.” R.
Doc. 90, p. 2-3. At the hearing, Plaintiffs submitted to the
Court that David Smith lived in Louisiana at the time of this
conversation and he was Senior Vice President and Division
Manager of the Pearl River Facility, and not the President
states this deposition is unfounded where Tait did not
explicitly discuss with Smith any allegations of
misclassification as an exempt employee or any belief that he
should not have been paid on a salary basis, and Mr. Smith
has already provided a sworn declaration stating the same. R.
Doc. 90-1, p. 5. Defendant now seeks to quash the subpoena
pursuant to the Apex Doctrine, or, in the alternative,
requests the Court enter a protective order to severely limit
the deposition in form, time, and scope. R. Doc. 90-1, p. 1
Defendant states that before deposing high-ranking
executives, Courts should first consider whether the
information could be obtained from a lower-level employee or
through less burdensome means such as written
interrogatories, and Plaintiffs have neither tried to depose
lower level employee Mr. Baker, also present at the meeting,
nor attempted to propound written interrogatories to Mr.
Smith or Mr. Baker. Pan American Life Ins. Co. v.
Louisiana Acquisitions Corp., No. 13-5027, 2015 WL
4168435 (Knowles, D.) (E.D. La. July 9, 2015). To this, the
Court is of the opinion that crewmen on a loading dock would
not present their complaints using legal jargon and terms of
art such as “exempt employee misclassification.”
Therefore, any argument Defendant makes as to the
nonrelevance of Tait and Smith's conversation is without
Court next notes, the Apex Doctrine is not strictly applied
in the Fifth Circuit. Id. at *4. In quashing the
deposition, the Court in Pan American explained the
only proffered proof of the high-ranking executive's
personal, superior, or unique knowledge was an email to show
the high-ranking official's participation of the sale in
dispute. Id. at *2. Here, the situation is far
different, the employees, joined in this class, had a
personal conversation with Smith in his capacity as manager
of the Pearl River Facility, where he was in charge and where
they worked, to discuss what they believed to be unfair pay.
This sufficiently demonstrates Mr. Smith's firsthand and
personal knowledge. Moreover, the fact that at some point
thereafter he was promoted to the position of President and
CEO, this Court consider unique knowledge.
on this knowledge, this Court finds that there are
potentially relevant topics of deposition based on his former
role of Senior Vice President and Division Manager of the
Pearl River Facility, as well as his current role as
President and CEO with actual foreknowledge of policies and
practices instituted at the Pearl River Facility. As such,
the Court denies Defendant's request to quash the
deposition upon oral examination of Defendant Associated
Wholesale Grocers, Inc. President and CEO David Smith.
Court, however, remains persuaded by Defendant's request
for a protective order to limit the scope of the deposition
topics. This Court does not permit blanket depositions of
high-ranking business officials. In Matter of Tara
Crosby, LLC, No. 17-05391, 2018 WL 3045799 at *4 (Roby,
K.) (E.D. La. 2018). R. Doc. 90-1, p. 7. As such, this Court
grants Defendant's request for a protective order to
limit the time, scope and duration of the deposition, and
orders Plaintiffs to submit to this Court, for in
camera review of relevancy, the list of topics on which
they wish to depose David Smith. Plaintiffs are to provide
the Court with the list of deposition topics no later than
the end of the business day today, Thursday, August 15, 2019,
at 5:00 p.m.
as the conduct in question took place in Louisiana, this
Court declines to order the deposition take place in Kansas
City, Kansas. As explained previously, at the hearing,
Plaintiffs made the Court aware of the fact that at the time
of this conversation, not only was David Smith Senior Vice
President and Division Manager of the Pearl River Facility,
but he lived in Louisiana. The Court is more inclined to
allow a deposition take place where the conduct at issue
occurred, but for now will not command that in hope the
parties can come to an agreement among ...