plaintiffs' opposition to the nhl's motion to preclude deposition of fact witness gary bettman

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

In re NATIONAL HOCKEY LEAGUE

PLAYERS CONCUSSION INJURY LITIGATION

This Document Relates To:

ALL ACTIONS.

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No. 0:14-md-02551-SRN-JSM

PLAINTIFFS OPPOSITION TO DEFENDANT NHLS MOTION TO PRECLUDE DEPOSITION OF FACT

WITNESS GARY BETTMAN

I. INTRODUCTION

Having produced mountains of dense objections and virtually no documents nearly

three months into discovery, the National Hockey League (NHL) now wants to

preclude, or at least prejudicially postpone, the deposition of NHL Commissioner Gary

Bettman. This effort to frustrate Plaintiffs discovery strategy turns on the contention that

the apex doctrine shields Mr. Bettman from being deposed, and that, even if his

deposition is permitted, Plaintiffs should have to wait until the NHL produces its own

documents before they proceed with Mr. Bettmans deposition, whenever that may be.

The apex doctrine is inapplicable. Mr. Bettman is not a senior executive with

little or no knowledge of this cases key facts. The NHL admits in its Rule 26(a)(1)

Initial Disclosures that Mr. Bettman is the single most knowledgeable fact witness about

[a]ll aspects of the game and business of NHL hockey generally and specifically in

response to Plaintiffs Master Administrative Long-Form and Class Action Complaint

(the MAC). See NHLs Initial Disclosures, attached to the Declaration of Stephen G.

Grygiel (Grygiel Decl.) as Exhibit A.

CASE 0:14-md-02551-SRN-JSM Document 128 Filed 03/25/15 Page 1 of 21

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The NHLs plea to delay Mr. Bettmans deposition until after it produces its own

Bettman-related documents is equally unavailing. The NHL controls its own document

production. Discovery has shown the NHL also controls the document production of

third party clubs and other NHL affiliates. So, the NHLs documents-before-

depositions argument means the NHL should be permitted to dictate the timing, and

order, of Plaintiffs deposition discovery. No Federal Rule of Civil Procedure, no Local

Rule, no case, no facts, and no equitable considerations support the NHLs theory that

Plaintiffs must wait until the defendant produces documents before deposing the

defendants central witness. See, e.g., Natl Union Fire Ins. Co. v. Donaldson Co., Inc.,

No. 10-4948, 2014 WL 2865900, at *2 (D. Minn. June 24, 2014) (The rules for

depositions and discovery are to be accorded a broad and liberal treatment.) (quoting

Credit Lyonnais, S.A. v. SGC, Intl, Inc., 160 F.3d 428, 430 (8th Cir. 1998). See also

Salter v. Upjohn, 593 F.2d 649, 651 (5th Cir. 1979) (discussing request to depose

defendants president; It is very unusual for a court to prohibit the taking of a deposition

altogether and absent extraordinary circumstances, such an order would likely be in

error.) (citing 4 J. Moore & J. Lucas, Moores Fed. Prac. 26.69 (3d ed. 1976); 8 C.

Wright & A. Miller, Fed. Prac. & Proc., 20.37 (1970)).

The NHL cannot carry its heavy burden to block the deposition of Mr. Bettman,

whom the NHL has designated as the most knowledgeable witness about this cases facts.

Plaintiffs should be permitted to take the deposition of Mr. Bettman within the next two

months at a date and time convenient to counsel for the parties and Mr. Bettman.


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II. BACKGROUND OF THE INSTANT DISCOVERY DISPUTE

A bit of background puts this dispute into its deny and delay context. Discovery

began, in accordance with the Courts Pretrial Order (PTO) No. 7, on or about January

15, 2015. Nearly three months later, and with the deadline for completion of all class

certification/common issue discovery only nine short months away, Plaintiffs have

received only 7,772 pages of documents, consisting of insurance policies, produced with

the NHLs Initial Disclosures, and the NHLs Official Guide & Record Book.

Plaintiffs served their First Requests for Production of Documents and First Set of

Interrogatories on the NHL on or about January 16, 2015. The NHL filed its written

responses and objections on March 2, 2015. Its document responses contained 24

General Objections, specific objections to all 63 requests, and a vague commitment to

produce only those documents that the NHL deems unobjectionable and only after the

parties meet and confer. The NHL answered Interrogatories 2 and 3 by referring to the

publicly available 92-page Official Guide & Record Book that accompanied the NHLs

written answers and objections. The insurance policies and these 92 pages constitute the

NHLs entire production so far.

Plaintiffs also served document requests on the 24 United States-based third-party

NHL member clubs (the Clubs) between January 21, 2015 and January 27, 2015.

Those requests were met with a flood of general and specific objections and not a single

page of documents. The Clubs approach is clearly reflected in General Objection No. 13

in their Omnibus Response. Boiled down, it says: we will produce nothing until the

Court rules on the Motion to Dismiss.


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Plaintiffs also served document requests on the Professional Hockey Athletic

Trainers Society (PHATS) on February 3, 2015. As with the Clubs, the PHATS

response amounted to a flood of objections, general and specific, and not a single

document. And as with the Clubs omnibus response, the PHATS General Objection 13

was the same nothing doing until the Court rules on the Motion to Dismiss,

accompanied by a vague promise of some sort of document production.

A. Initial Deposition Notices

Plaintiffs naturally became very concerned that discovery was bogging down in a

sea of written requests, objections, and concomitant meet-and-confers. Meaningful

document production seemed a long way off. The Preliminary Search Terms List for ESI

was not finalized until March 17, 2015. Under PTO No. 7, 3.D., the NHL has two

weeks from then to run queries on the Preliminary Search Terms. After that a further

meet-and-confer process commences, to seek agreement on a final set of Search Terms.

Meantime, Plaintiffs needed to get meaningful discovery started, taking roadmap

depositions to find out who, among the NHL and its Clubs many current and past

personnel, would be the likeliest sources of knowledge regarding the key facts and issues.

To this end, on February 23, 2015, Plaintiffs sent a notice of deposition for Mr.

Bettman to the NHLs counsel. The same day, Plaintiffs also sent out two deposition

subpoenas. One was for Jim McCrossin, the 18-year trainer of the Philadelphia Flyers, a

member of PHATS and a member of the NHL-NHLPA Concussion Working Group


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listed in the published 2011 NHL Concussion Study Report (Report).1 The other went

to Dr. Charles Burke, former Penguins team doctor, former head of the NHL Physicians

Society, and an author of the Report. Plaintiffs told the NHL that the noticed dates were

placeholders and the Plaintiffs would cooperate in scheduling the depositions for a

mutually convenient time. These initial depositions seek information from clearly

knowledgeable witnesses from various NHL-related entities: League, Clubs, PHATs,

NHLPS and the NHL-NHLPA Concussion Working Group. Plaintiffs carefully chose

these deponents, whose information should permit Plaintiffs a strong substantive

discovery start and a clear roadmap for framing further written discovery and for

identifying the most appropriate additional deponents.

B. The NHLs Response

In a February 26, 2015 letter, the NHL objected to Plaintiffs deposition notices

and subpoenas, claiming the deposition subpoenas served by Plaintiffs were null and

void. See Grygiel Decl., Ex. B. Dr. Burkes deposition had already been scheduled, by

agreement with his counsel, for early April, pending confirmation of a date with the

NHL. The NHL said, among other things, the Bettman deposition runs afoul of the

apex doctrine, and it protested that the depositions of Mr. McCrossin and Dr. Burke

should not proceed until the NHL produced its own documents. Id.

1 The Reports full title: A Prospective Study of Concussions among National Hockey

League Players during Regular Season Games: the NHL-NHLPA Concussion Program.


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C. The Meet-and-Confer and Status Conferences

Plaintiffs and the NHL conferred unsuccessfully. The parties put the issue on their

respective final Agendas for the March 4, 2015 Status Conference, and discussed the

issue with the Court at that time. The Court directed this briefing at the informal

discovery conference on March 16, 2015.

III. ARGUMENT

A. Mr. Bettmans Deposition Is Not an Apex Deposition

Mr. Bettman is not an apex deponent, plain and simple. An apex deponent is a

high-ranking corporate executive whose knowledge about, and involvement in, the facts

underlying the claim is minimal to non-existent. See, e.g., Bombardier Rec. Prods. v.

Arctic Cat, Inc., No. 12-cv-2706 (MJD/LIB), 2014 WL 5685463, at *2 (D. Minn. Sept.

24, 2014) (courts are wary of allowing parties to depose high-level executives where

the deposing party fails to establish that the executive has some unique knowledge

relevant and critical to the case at hand.).

In such cases, the deposition of the senior executive can be understood as potential

harassment rather than a well-founded effort to develop facts and to hone claims and

defenses in light of the sort of testimony that trial will produce. See id. (citing Apple, Inc.

v. Samsung Elecs. Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012)).

Seminal apex doctrine cases, from the Texas Supreme Court, explain the

process by which a defendant may invoke the apex doctrine:

When a party seeks to depose a corporate president or other high level

corporate official and that official (or the corporation) files a motion for

protective order to prohibit the deposition accompanied by the officials affidavit denying any knowledge of relevant facts, the trial court should


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first determine whether the party seeking the deposition has arguably

shown that the official has any unique or superior personal knowledge of

discoverable information. If the party seeking the deposition cannot show

that the official has any unique or superior personal knowledge of

discoverable information, the trial court should grant the motion for

protective order and first require the party seeking the deposition to attempt

to obtain the discovery through less intrusive methods. After making a good faith effort to obtain the discovery through less intrusive methods, the

party seeking the deposition may attempt to show (1) that there is a

reasonable indication that the officials deposition is calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive

methods of discovery are unsatisfactory, insufficient or inadequate.

Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995); see also In re

Alcatel USA, Inc., 11 S.W.3d at 175 (A party initiates the Crown Central guideline

proceedings by moving for protection and filing the corporate officials affidavit denying

any knowledge of relevant facts. The trial court evaluates the motion first by deciding if

the party seeking the deposition has arguably shown that the official has any unique or

superior personal knowledge of discoverable information.) (quoting Crown Central

Petroleum).

For this Court to preclude Mr. Bettmans deposition under the apex doctrine two

things must happen: (1) Mr. Bettman must file a sworn affidavit in which he denies

knowledge of facts relevant to this case, and (2) the Court must determine that Mr.

Bettman does not have any unique or superior personal knowledge of discoverable

information.

The NHL has not filed an affidavit from Mr. Bettman denying knowledge of

relevant facts. Any such affidavit would directly contradict the NHLs Initial Disclosures

specifying Mr. Bettman as one of the two most knowledgeable NHL personnel about the

business of NHL Hockey in general and the MACs allegations in particular. Only


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Deputy Commissioner Bill Daly, says the NHL, knows as much about the issues in this

case and Bill Dalys tenure started three years after Mr. Bettmans began in 1993.

Absent such an affidavit, the apex doctrine cannot be the basis for refusing Plaintiffs

reasonable request to depose Mr. Bettman. See Bombardier, 2014 WL 5685463, at *2, 3

(shielded executive must not have unique, relevant, first-hand, non-repetitive

knowledge).

Even if Mr. Bettman tried to disclaim the deep knowledge the NHLs Initial

Disclosures say he has, ample evidence demonstrates that his twenty-plus years of direct

involvement in the subject matter of this case gives him knowledge unique and superior

to any other current NHL employee. Id. at *2.

Mr. Bettman has made many public statements about concussions, head hits,

player safety, the impact of rules changes, the links (or claimed lack thereof) between

concussions and fighting, and numerous other factual issues directly relevant to this case.

The following are just a few examples. On March 18, 2015, at the most recent NHL

General Managers meetings, Commissioner Bettman was quoted as telling Yahoo

Sports: Concussions are not on the rise, to the contrary, and the number of man-games

lost is down again. Im not giving you numbers. See Grygiel Decl., Ex. C. The same

article stated: During the Stanley Cup Final last year, [C]ommissioner Gary Bettman

said concussions had declined by moderate to low double-digits as a percentage that

season and man-games lost to concussions had declined by probably about half. See

Grygiel Decl., Ex. C.


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Mr. Bettmans relevant statements span his tenure. According to a February 1,

1993 Newsday article, Mr. Bettman stated: Fighting penalties are down 56% from last

year in the wake of the new rulesWhat were going to do after the season is take a look

at the impact the rules had and whether any further adjustments are necessary. See

Grygiel Decl., Ex. D. In an April 7, 2001 article in the San Jose Mercury News, Mr.

Bettman spoke in detail about issues directly raised in the MAC: Last year we analyzed

the tapes of all concussions and determined that two-thirds occurred at open

ice.Theres no doubting that Mr. Suters injury came from seamless glassBut if you

look at data, I think you get as many injuries from other types of board and glass. Were

not willing to say theres a correlation between the glass and injuries. But that doesnt

mean this particular injury was not caused by it. See Grygiel Decl., Ex. E. From a

March 26, 2007 article in ESPN NHL: My view on fighting hasnt changedWeve

never taken active steps or considered eliminating fighting from the game. Ive always

taken the view that its part of the game and it rises and lowers based on what the game

dictates. I think fighting has always reached whatever level is appropriate in the game

and has been a part of the game. And I don't have a problem with that. See Grygiel

Decl., Ex. F. In a November 26, 2014 article in AE Edition, Mr. Bettman was quoted:

[Fighting is] an overblown issue because its a small part of the game and to the extent

there are concussions its a small part of that. See Grygiel Decl., Ex. G.

The MAC contains numerous other quotes from Mr. Bettman, reflecting his

historical, continuing, and deep personal involvement in the concussion issue and the

NHLs steps to address it. See, e.g., MAC, 16 (more study is needed); 221 (NHLs


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long history, going back to 1997, of taking concussions very seriously); 269 (at Board of

Governors meeting, said dont use tragedies to jump to conclusions that probably at this

stage are not supportedtake a deep breath and not overreact); 269 (fans like level of

physicality in NHL game, its not as big an issue to fans and people in the game to

extent other people suggest it is); 311 (2007 press conference; not looking to have

debate on whether fighting is good, bad or should be part of game; fighting has always

had a role in the game); 334 (fighting is something we need to look at but has always

had a role in game, not looking for debate on fighting); 335 (maybe fighting is

dangerous and maybe it is not, you dont know that for a fact and its something we

continue to monitor); 335 (premature to connect fighting and CTE too much

speculation and rumors in this whole area); 381 (saying no need to over-legislate

head hits, acknowledged concussions on rise, but said was from accident events and

not from head hits).

No one at the NHL is likely to have more knowledge than Mr. Bettman

concerning the NHLs Concussion Study, which began in 1997 and was published in

2011, all under Mr. Bettmans stewardship. As the NHL Commissioner from 1993 to the

present, Mr. Bettman has unique knowledge concerning, among other things, the NHLs

rationale for conducting the Study, how it chose its researchers, why it took fourteen

years for the NHL to complete the study and publish its results, what the NHL chose to

disclose and not to disclose to its players in the interim, and the reasons for those

statements and silences. All are central issues in this case.


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Reports show Mr. Bettman personally polled NHL General Managers about

supplemental discipline for a notorious head hit. See Grygiel Decl., Ex. H. Many other

examples confirm Mr. Bettmans detailed factual knowledge of facts central to this cases

allegations. The following few should suffice for the point. In 2011, Mr. Bettman

announced a new 5 point Concussion Protocol and discussed it with the NHL Board of

Governors and in a detailed question and answer with the media. See Grygiel Decl., Ex.

I. Commissioner Bettman oversees the Department of Player Safety and has authority

over other NHL executives in charge of player safety. See Grygiel Decl., Ex. J.

This is not at all like the typical apex case in which a plaintiff wants to depose a

CEO from a far-away corporate headquarters who knows nothing about the machine that

caused injury to a worker in a plant the CEO had never visited. Rather, the NHLs own

Initial Disclosures and Mr. Bettmans own pronouncements show Mr. Bettman has

detailed, long-standing knowledge of discoverable facts that are directly relevant to

Plaintiffs claims.

Numerous courts have permitted depositions of corporate executives in cases like

this one. See, e.g., Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 126 (D. Md. 2009)

(permitting CEOs deposition where CEO was highly involved in business practices at

issue); In re Bridgestone/Firestone, Inc. Tire Prods. Liab. Litig., 205 F.R.D. 535, 536

(S.D. Ind. 2002) (permitting deposition of Fords Board Chairman in products liability

case where Chairman had personal knowledge of, and had been involved in, relevant

matters and where conduct of highest corporate executives was at issue); Chevron Corp.

v. Donziger, No. 11-CV-0691, 2013 WL 1896932, at *1 (D.D.N.Y. May 7, 2013)


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(permitting deposition of Chevrons Chairman and CEO, noting principles relating to

apex witnesses are in tension with the broad availability of discovery, and there is little

doubt that Mr. Watson has relevant knowledge and had corporate experience likely to

have given him personal knowledge of the environmental issues underlying

thelitigation); In re Google Litig., No. C 08-03172, 2011 WL 4985279, at *2 (N.D.

Cal. Oct. 19, 2011) (permitting deposition of Google CEO Larry Page in patent case

where plaintiff demonstrated Page had direct knowledge of, and personal involvement in,

technologies at issue); In re Mentor Corp. OBTape Transobturator Sling Prod. Liab.

Litig., MDL No. 2004, 4:08-MD-2004 (CDL), ECF No. 133 at p. 2 (M.D. Ga. Dec. 1,

2009) (permitting depositions of World Wide President and of founder and former CEO,

stating where the executive has personal knowledge of and involvement in certain

relevant matters or where conduct and knowledge of the highest corporate levels are

relevant in the case, a deposition of the executive is generally permitted (citing In re

Bridgestone/Firestone 205 F.R.D. at 536-37)).

Where an issue is particularly relevant, as the brain disease issue is in this case,

even the possibility that a senior executive may have relevant knowledge can suffice to

overcome the apex rule. See Mills v. Wal-Mart Stores, Inc., No. 06-5162, 2007 WL

2298249, at * 2 (W.D. Ark., Aug. 7, 2007) (ordering depositions of executives who may

have relevant information concerning the process that went into the decision not to shred

the documents and may have personal information concerning the investigation

surrounding the possible shredding of documents) (emphasis in original). Here, Mr.

Bettmans personal, detailed knowledge of the issues is not merely possible, but actual


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and extensive. Mr. Bettman is not an apex witness, and his deposition should go

forward.

B. The Cases Cited by the NHL Support Neither Precluding Nor Postponing Mr. Bettmans Deposition

The NHL relies on Bombardier in seeking to preclude, or at least postpone, Mr.

Bettmans deposition. Unlike this case, Bombardier was a patent case involving

technological design issues far afield from any demonstrated personal and unique

knowledge of the would-be deponent CEO. Bombardier, 2014 WL 5685463, at * 1, 3.

Seeking to justify the executive depositions, Arctic Cat claimed the Bombardier President

had tested the snowmobile. He had ridden it once. Id., at * 4. Very different from this

case, [t]he evidence of [BRPs President and CEOs] unique knowledge is de

minimus and conclusory at best. Id., at * 3. This scenario obviously differs from Mr.

Bettmans myriad, detailed public statements revealing his intimate, personal, long-time

involvement in, and knowledge about, the concussion issues in the NHL.

Boiled down, the NHLs position is that Mr. Bettman knows the most and is likely

one of the NHLs two key trial witnesses, but that Plaintiffs should be compelled to chase

numerous other deponents first to try to cobble together what they should be able to get in

one stop shopping with Mr. Bettman. The apex doctrine does not stretch so far. Until

Plaintiffs can depose Mr. Bettman, they will not be in any position to know just what

information deficits remain from serial depositions of other less knowledgeable

witnesses.

In analyzing the apex doctrine, Bombardier, 2014 WL 5685463, at * 3, relies on

Apple v. Samsung Electronics Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012). Samsung


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confirms the rule compelling Mr. Bettmans deposition here he has unique first-hand,

non-repetitive knowledge of the facts at issue in the case and other less intrusive

discovery methods do not exist because the NHL itself declared Mr. Bettman the most

knowledgeable witness. Bombardier, 2014 WL 5685463, at * 3 (quoting Samsung, 282

F.R.D. at 263)). Samsung further confirms the NHL has a heavy burden to show why

discovery should be denied. Thus, it is very unusual for a court to prohibit the taking of a

deposition altogether absent extraordinary circumstances. When a witness has personal

knowledge of facts relevant to the lawsuit, even a corporate president or CEO is subject

to deposition. Samsung, 282 F.R.D. at 263.

Bombardier shows why Mr. Bettmans deposition is not just warranted, but

warranted now. Not only did the movant, Bombardier, bear[ ] the burden of

demonstrating good cause for the protective order it seeks, but the Court recognized that

it must weigh the respective hardships the parties stand to incur were the discovery

permitted or the protective order issued. Bombardier, 2014 WL 5685463, at * 3.

Here, the NHL would be doing nothing more than defending the deposition of one

of its own certain trial witnesses, a savvy and seasoned lawyer and businessman who has

run the NHL for 22 years, and whose many public statements demonstrate that he is

completely up to speed on all the issues in the case. Denying or postponing this

deposition would compel Plaintiffs to try to piece together, in serial depositions of a

number of other, less knowledgeable witnesses, at least some of what Mr. Bettman knows

about which Plaintiffs would still be forced to guess. Aside from being contrary to

Rule 26s mandate for liberal discovery and Rule 1s mandate for just and efficient


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litigation, requiring this type of deposition hopscotch would delay properly focused

discovery and hinder Plaintiffs ability to identify appropriate witnesses early, prepare for

them, get their documents, depose them, and start proving their case.

The NHLs reliance on Brown v. Branch Banking & Trust Co., No. 13-81192-

CIV, 2014 WL 235455 (S.D. Fla. Jan. 22, 2014), is similarly inapposite. Brown involved

the request of counterclaim plaintiffs defending foreclosure actions to depose the

president of the bank that had taken over the loans. Plaintiffs argued merely that the

topics on which they intend to question the [bank president] are relevant and (with

respect to the issue of the appropriateness of punitive damages) Greenes testimony

would be more potent than that of a lower ranking official. Id. at *3. Plaintiffs here

have demonstrated Mr. Bettmans direct, personal, and unique knowledge. Brown also

ruled the presidents deposition would be permitted if less intrusive means to obtain the

discovery were unsuccessful and should Plaintiffs be able to demonstrate that [the

president] possesses unique, personal knowledge about the facts of this case. Id. at *3.

Here, the NHLs Initial Disclosures and Mr. Bettmans public statements on relevant

issues demonstrate that no other less intrusive method could be anywhere near as

efficient or successful and Mr. Bettman possesses the requisite knowledge to make the

apex doctrine inapplicable.

Dauth v. Convenience Retailers, LLC, No. C 13-047-MEJ, 2013 WL 4103443

(N.D. Cal. Aug. 12, 2013), is like Brown and unlike this case. In Dauth, the plaintiff

offered only generalized statements that simply allege that [the defendant

corporations President and CEO] deposition is essential and just results in this litigation


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cannot be obtained unless the Plaintiff has the opportunity to depose him. Id. at *2.

Offering no specifics, the Plaintiff simply said she worked under the executives

instructions. Id. at *2. Here, Plaintiffs have offered dozens of specific examples of Mr.

Bettmans unique knowledge of relevant facts, consistent with the NHLs Initial

Disclosures.

Zoroufie v. Lance, Inc., No. 07-2016-B.P., 2008 WL 1767729 (W.D. Tenn. Apr.

15, 2008), follows the Brown and Dauth pattern. Vastly different from our case, in

Zoroufie, the plaintiff said in his own deposition that he had no contact with [the

defendants CEO] regarding the formation of the contract at issue. Id. at *2. In

addition, the CEOs affidavit demonstrated he had no unique, first-hand knowledge.

Here, no affidavit from Mr. Bettman disclaims his knowledge of relevant facts. To the

contrary, the NHLs admissions in its Initial Disclosures confirm Mr. Bettmans far-

reaching personal knowledge of relevant facts.

The NHL relies also on City of Farmington Hills Emp. Ret. Sys. v. Wells Fargo

Bank, N.A., No. 10-4372 (DWF/JJG), 2012 U.S. Dist. LEXIS 190633 (D. Minn. Sept. 17,

2012). There, the Court issued a protective order barring the plaintiffs from deposing

Wells Fargos past and current Chairman and CEO. Different from the present case, in

which no depositions have been taken, both of those Wells Fargo executives had

previously been deposed in a parallel case. Both credibly claimed they had no unique

personal knowledge warranting depositions. Id. at *12.

Unlike the uninformed senior executives in Wells Fargo, the NHLs Initial

Disclosures show Mr. Bettman is one of the two persons with the most knowledge of any


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witness identified about [a]ll aspects of the game and business of NHL hockey generally

and specifically in response to Plaintiffs [MAC].

Wells Fargo confirms that the NHL bears the burden of showing good cause for a

protective order. Wells Fargo underscores the fact-sensitive, case-specific nature of the

Apex doctrine analysis, which begins with the premise that despite special

consideration no per se prohibition exists on depositions of corporate executives. Wells

Fargo, 2012 U.S. Dist. LEXIS 190633, at * 9.

C. The NHLs Documents First Argument Is Unavailing

This Court should reject the NHLs request to postpone Mr. Bettmans deposition

until after it produces documents. Nothing in the Federal Rules of Civil Procedure or any

of this Courts PTOs requires that document production, for a particular witness or in

general, be completed before a certain witness is deposed. PTO No. 6 requires the parties

to seek to avoid deposing witnesses twice. Plaintiffs told the NHL and confirmed for the

Court their willingness to depose Mr. Bettman only once based on currently available

documents. Plaintiffs will, as PTO No. 6 requires, provide the NHL with a list of

potential deposition exhibits in advance of the deposition, which will permit the NHL to

adequately prepare Mr. Bettman for his deposition.

The NHLs documents before deposition argument here asks the Court to ignore

reality. Mr. Bettman is a smart lawyer. His law firms will have exhaustively canvassed

the Web, and what Plaintiff expect are substantial press release and clippings files, long

before the depositions exhibit disclosure date to ensure they have gathered, and prepared

Mr. Bettman to testify about, every public statement he has made about any of the issues


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in this case. By the time the Court hears argument on this issue, the NHL will have had

nearly two months to find and review Mr. Bettmans statements and documents. In any

event, the NHL will surely face no problems in preparing Mr. Bettman to testify about his

own unique knowledge about this cases facts.

The NHL cannot really be worried about missing a chance to redirect Mr. Bettman

in deposition, on some document that only shows up after the deposition. The NHL

could use any such later-arriving document in an Affidavit or Declaration, and note that

the Plaintiffs voluntarily ran the risk of just such later-discovered documents by taking

Mr. Bettmans deposition at this stagey.

Allowing Plaintiff to depose Mr. Bettman now will cause no prejudice to the

NHL. By contrast, making Plaintiffs wait several months to depose Mr. Bettman and

requiring them to first depose less knowledgeable witnesses will cause great prejudice to

Plaintiffs ability to meet this Courts deadline to complete the discovery necessary to

support their claims.

IV. CONCLUSION

The NHLs reliance on the apex doctrine is clearly misplaced. Unlike the CEO

of a large, multinational corporation with limited or no first-hand knowledge of the facts

or issues in a lawsuit, Mr. Bettman has unique and superior knowledge of the facts that

are at the heart of this case. Even if the NHL had not said so in its Initial Disclosures,

Mr. Bettmans own public statements over the course of more than two decades belie the

apex claim. Moreover, it defies credulity to think that the NHL needs to produce its

own documents to Plaintiffs before it can prepare Mr. Bettman for his deposition.


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Accordingly, Plaintiffs respectfully request that the Court permit Plaintiffs to depose Mr.

Bettman before July 1, 2015, at a date and time convenient for all counsel and Mr.

Bettman.

Dated: March 25, 2014

By: /s/ Charles S. Zimmerman

Charles S. Zimmerman

Brian C. Gudmundson

David M. Cialkowski

ZIMMERMAN REED, PLLP

1100 IDS Center, 80 S. 8th St.

Minneapolis, MN 55402

Telephone: (612) 341-0400

[email protected]

[email protected]

[email protected]

Hart Robinovitch

Bradley C. Buhrow

ZIMMERMAN REED, PLLP

14646 North Kierland Blvd., Suite 145

Scottsdale, AZ 85254

Telephone: (480) 348-6400

[email protected]

[email protected]

By: /s/ Stuart A. Davidson

Stuart A. Davidson

Mark J. Dearman

Leonard B. Simon

Kathleen B. Douglas

Janine D. Arno

ROBBINS GELLER RUDMAN

& DOWD LLP

120 E. Palmetto Park Road, Suite 500

Boca Raton, FL 33432

Telephone: (561) 750-3000

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

By: /s/ Stephen G. Grygiel

Steven D. Silverman

Stephen G. Grygiel

William Sinclair

SILVERMAN, THOMPSON,

SLUTKIN & WHITE, LLC

201 N. Charles Street, Suite 2600

Baltimore, MD 21201

Telephone: (410) 385-2225

[email protected]

[email protected]

[email protected]

Plaintiffs Co-Lead Counsel


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Lewis A. Remele

Jeffrey D. Klobucar

BASSFORD REMELE

33 S. 6th Street


Telephone: (612) 333-3000

[email protected]

[email protected]

[email protected]

Plaintiffs Liaison Counsel

Thomas Demetrio

William T. Gibbs

Katelyn D. Geoffrion

CORBOY & DEMETRIO

33 N. Dearborn Street

Chicago, IL 60602

Telephone: (312) 346-3191

[email protected]

[email protected]

[email protected]

Brian D. Penny

Mark S. Goldman

GOLDMAN, SCARLATO & PENNY PC

101 E. Lancaster Ave., Suite 204

Wayne, PA 19087

Telephone: (484) 342-0700

[email protected]

[email protected]

Vincent J. Esades

James W. Anderson

HEINS MILLS & OLSON, PLC

310 Clifton Ave.


Telephone: (612) 338-4605

[email protected]

[email protected]

Thomas J. Byrne

Mel Owens

NAMANNY, BYRNE, & OWENS, APC

2 S. Pointe Dr.

Lake Forest, CA 92630

Telephone: (949) 452-0700

[email protected]

[email protected]

David I. Levine

THE LEVINE LAW FIRM P.C.

1804 Intracoastal Drive

Fort Lauderdale, FL 33305

Telephone: (954) 385-1245

[email protected]

Michael R. Cashman

Richard M. Hagstrom

Shawn Stuckey

ZELLE HOFMANN VOELBEL

& MASON LLP

500 S. Washington Ave., #4000


Telephone: (800) 899-5291

[email protected]

[email protected]

[email protected]


- 21 -

Daniel E. Gustafson

Daniel C. Hedlund

GUSTAFSON GLUEK PLLC

Canadian Pacific Plaza

120 S. 6th Street, Suite 2600


Telephone: (612) 333-8844

[email protected]

Jeffrey D. Bores

Bryan L. Bleichner

CHESTNUT CAMBRONNE PA

17 Washington Ave. North, Suite 300


Telephone: (612) 339-7300

[email protected]

[email protected]

Plaintiffs Executive Committee
