¶ 1 Petitioners seek extraordinary relief because the order of the trial court requires the attendance of Cecil Van Tuyl and Larry Van Tuyl for depositions via notice to petitioners' counsel, although the named individuals are not named parties. Cecil was noticed
¶ 2 We may look to discovery procedures in the federal rules when construing similar language in the Oklahoma Discovery Code. Scott v. Peterson, 2005 OK 84, ¶ 22, 126 P.3d 1232, 1238; Conterez v. O'Donnell, 2002 OK 67, n. 7, 58 P.3d 759, 761. Language in the Oklahoma Discovery Code at issue herein is similar to the federal rules: Fed.R.Civ.P. 30(a)(1) and its counterpart in 12 O.S.Supp.2005 § 3230(A)(1),
¶ 3 Prior to the 1970 amendments to Rule 30 of the Federal Rules of Civil Procedure, a
¶ 4 Pursuant to Fed.R.Civ.P. 30(a)(1) and (b)(1) a party may depose a party corporation and name a specific individual to be deposed as speaking for the corporation, but the party may designate to speak for the corporation only directors, officers, or managing agents. In re Honda Am. Motor Co., Inc., 168 F.R.D. 535, 540 (D.Md.1996); U.S. v. One Parcel of Real Estate at 5860 North Bay Rd., Miami Beach, Florida, 121 F.R.D. 439, 440 (S.D.Fla.1988); GTE Products Corporation v. Gee, 115 F.R.D. 67, 68 (D.Mass. 1987).
¶ 5 Petitioners argue that a deposition of a corporate official must occur, if at all, pursuant to § 3230(C)(5) where the corporation names the individual to be deposed. That is not the practice under the similar federal rules. Section 3230(C)(5) expressly states that "This paragraph does not preclude taking a deposition by any other procedure authorized in the Oklahoma Discovery Code." We hold that the Oklahoma Discovery Code, like the Federal Rules of Civil Procedure, authorizes more than one method to depose an official of a corporation.
¶ 6 While a notice to party's counsel may be used to compel a party to attend a deposition,
¶ 7 Petitioners state in their filings in the trial court that Larry Van Tuyl is not an apex corporate official. They also stated that he is not an officer, director, or employee of any of the named parties; but this statement occurs in Petitioners' Supplemental Appendix, No. 15, an "evidentiary supplement to motion to quash" which shows a District Court file-stamp of August 6, 2007, a few weeks after the date of the trial court's order, July 13, 2007, that is challenged in this proceeding. We decline to consider this evidentiary supplement and its attached affidavit dated July 26, 2007, which shows that it was created after the trial court's decision.
¶ 8 A real party in interest states that Larry Van Tuyl owns or operates a company "that along with Van and VT is involved with Crest's management, insurance programs, employee programs. . . . Larry Van Tuyl has even participated in hiring Crest's employees." Petitioners' Appendix, No. 5, at pg. 7. If Larry is a director, officer, or managing agent of a party corporation he may be noticed, individually, for a deposition through the corporation's counsel appearing in the trial court. But if Larry is not of this classification his attendance at the deposition is as a non-party witness; and if he does not consent to appear, a subpoena is a proper procedure for compelling his attendance.
¶ 9 The trial court transcript of the hearing on the motion to quash the notices for depositions shows the trial court determined that Larry's connection with Oklahoma was sufficient for personal jurisdiction. Although petitioners' record herein is insufficient to show Larry's status as a corporate official, or not, for the purpose of this extraordinary writ proceeding,
¶ 10 Of course, pursuant to Rule 4 of the Rules for District Courts, 12 O.S.Supp.2002, Ch. 2, App., a party does not have a right to a hearing because a process is available for presenting both facts and legal argument to the trial court.
¶ 11 The fact question of whether Larry Van Tuyl is, or is not, an apex corporate official or a director, officer, or managing agent officer of one of the parties was presented to the trial court by unsworn statements of counsel.
¶ 12 Ordering Larry Van Tuyl to appear at a deposition pursuant to a notice to counsel was an abuse of discretion where he objected to the deposition on the basis of his status with respect to the corporate parties and that issue was left unadjudicated by the trial court prior to its order. We issue prohibition to prevent enforcement of the District Court's order compelling Larry Van Tuyl to appear at a deposition in accordance with a notice until the trial court actually adjudicates his status and whether a notice or subpoena is the proper method to compel his attendance.
¶ 14 Not all courts have adopted the apex doctrine. See, for example, State ex rel Ford Motor Company v. Messina, 71 S.W.3d 602 (Mo.2002), where that court stated the following.
Id. 71 S.W.3d at 607 (material and citations omitted).
Similarly, some federal courts have agreed that an apex corporate official may seek a protective order, although the apex doctrine is not adopted. For example, in Thomas v. International Business Machines, 48 F.3d 478 (10th Cir.1995), a party sought to depose the Chairman of the Board of Directors of IBM. The notice sought his deposition in Oklahoma City. The Chairman sought a protective order arguing several grounds, including but not limited to (1) the deposition was noticed for Oklahoma City instead of the principle place of business in White Plains, New York,
¶ 15 The apex doctrine places a burden on the party seeking the deposition to show that the corporate official has unique or superior personal knowledge of discoverable information, and if the showing is not met a protective order is issued. Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d at 128. Neither Ford Motor Company nor Thomas adopted the apex doctrine, but they did recognize that a deposition of a corporate official could be unduly burdensome and oppressive under certain circumstances. In both Ford Motor Company and Thomas the burden of showing
¶ 16 Discovery may be limited or denied when discoverable material is sought in an excessively burdensome manner. Farmers Ins. Co. v. Peterson, 2003 OK 99, ¶ 3, 81 P.3d 659, 660. The party or person from whom a deposition is sought may, with good cause to be shown, request a protective order to "protect a party or person from annoyance, harassment, embarrassment, oppression or undue delay, burden or expense. . . ." 12 O.S.Supp.2004 § 3226(C)(1).
¶ 17 Petitioners resisted the deposition of Cecil Van Tuyl based upon his status as an apex corporate official. They argued that plaintiffs failed to meet an apex doctrine burden of "showing that these individuals have `a unique personal knowledge' or superior knowledge of the matters at issue." Brief at 11-12. We decline to adopt a form of the apex doctrine that shifts a burden to the party seeking discovery. In Oklahoma the burden of showing "good cause" is statutorily placed on the party objecting to discovery and is part of that party's motion for a protective order.
¶ 18 The record before us in this extraordinary writ proceeding includes petitioners' motion to quash the deposition, their reply to plaintiffs' response, and a supplemental reply. The latter two instruments state that Cecil Van Tuyl and Larry Van Tuyl "have little, if any, unique personal knowledge about the controversy at issue." (reply at 4, supplemental reply at 2.) They also state that the individuals "do not have personal knowledge about the controversy at issue, and any information they could offer would not be relevant to the particular facts of this case." Id. The instruments do not identify plaintiffs' claims and explain why these officials have no knowledge regarding those particular claims. For example, plaintiffs argued in the trial court that the officials had knowledge relating to the alleged related corporate structures, and that the information plaintiffs sought was relevant to plaintiffs' alter ego claims. Plaintiffs also argued that defendants should not be allowed to "rely solely on the blanket statement that these witness[es] lack any information relevant to the issues in this case." We agree that petitioners must show more than these blanket statements to satisfy their burden for a protective order. Petitioners did not explain why the corporate official, as such, would not have knowledge of information relating to plaintiffs' causes of action. They did not explain why the particular information sought by plaintiffs would inflict annoyance, harassment, embarrassment, oppression or undue delay, burden or expense sufficient for issuance of a protective order
¶ 19 The transcript of the hearing on the motion to quash contains a discussion of whether the individuals "are connected enough" for personal jurisdiction purposes, but no discussion occurs relating to whether the petitioners met their burden for a protective order. This is, in part, because petitioners' filings sought to place the discovery burden on the plaintiffs. Nothing in the transcript shows that the trial court actually adjudicated petitioners' claim that the deposition of Cecil Van Tuyl would constitute harassment or abuse.
¶ 20 When addressing first-impression procedural issues in the context of extraordinary relief we have, based upon certain circumstances, provided the parties with an opportunity to seek relief in the trial court based upon our opinion. See, e.g., Christian v. Gray, 2003 OK 10, ¶ 1, 65 P.3d 591, 594; YWCA of Oklahoma City v. Melson, 1997 OK 81, ¶ 25 944 P.2d 304 311-312; White v. Wensauer, 1985 OK 26, 702 P.2d 15, 19. We issue a writ of prohibition and direct the trial court not to enforce its order requiring Cecil Van Tuyl and Larry Van Tuyl to appear for depositions pursuant to notice provided to counsel for petitioners. Our opinion does not prevent plaintiffs from seeking to depose Cecil Van Tuyl and Larry Van Tuyl in accordance with this opinion, or prevent petitioners from objecting to such depositions in accordance with this opinion.
¶ 21 EDMONDSON, V.C.J., OPALA, KAUGER, WATT, COLBERT, JJ., Concur.
¶ 22 WINCHESTER, C.J., HARGRAVE, TAYLOR, JJ., Concur in Result.
(1) A party may take the testimony of any person, including a party, by deposition upon oral examination without leave of court except as provided in paragraph (2). The attendance of witnesses may be compelled by subpoena as provided in [Fed.R.Civ.P.] Rule 45. (Citation added to original).
12 O.S.Supp.2005 § 3230(A)(1):
1. A party may take the testimony of any person, including a party, by deposition upon oral examination without leave of court except as provided in paragraph 2 of this subsection. The attendance of witnesses may be compelled by subpoena as provided in [12 O.S.Supp.2002] Section 2004.1 of this title. (Citation added to original).
(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to, or included in, the notice.
12 O.S.Supp.2005 § 3230(C)(1):
A party desiring to take the deposition of any person upon oral examination shall give notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and shall state the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. The notice shall be served in order to allow the adverse party sufficient time, by the usual route of travel, to attend, and three (3) days for preparation, exclusive of the day of service of the notice.
If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced, as set forth in the subpoena, shall be attached to or included in the notice.
(6) A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
12 O.S.Supp.2005 § 3230(C)(5):
5. A party may in the notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which that person will testify. Such designation of persons to testify and the subject of the testimony shall be delivered to the other party or parties prior to or at the commencement of the taking of the deposition of the organization. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.
This paragraph does not preclude taking a deposition by any other procedure authorized in the Oklahoma Discovery Code.
C. PROTECTIVE ORDERS.
1. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer, either in person or by telephone, with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or on matters relating to a deposition, the district court in the county where the deposition is to be taken may enter any order which justice requires to protect a party or person from annoyance, harassment, embarrassment, oppression or undue delay, burden or expense, including one or more of the following: