On July 10, 2013, Magistrate Judge Toliver issued an Order (available here) in Simms v. National Football League. The case involves “claims by Plaintiffs, ticketholders to the Super Bowl XLV game at Cowboys Stadium in Arlington, Texas, against Defendant National Football League (‘NFL’) for breach of contract and fraudulent inducement resulting from being denied seating at the Super Bowl XLV game.”
Judge Toliver had previously granted a protective order precluding Commissioner Goodell from being deposed in response to plaintiffs’ motion to compel his deposition. Subsequently, after deposing several witnesses proffered by the NFL, plaintiffs filed another motion to compel Goodell’s deposition:
Plaintiffs again move to compel the deposition of Goodell, averring that they have since deposed the executives the NFL designated as employees with knowledge, but they were still unable to obtain the information they seek. Plaintiffs seek specific information regarding Goodell’s statements in which he allegedly admitted the NFL’s fault in the events giving rise to this lawsuit and to mistakes relating to the temporary seating, as well as his alleged claims that the NFL would conduct a thorough investigation. Id. Plaintiffs aver that the witnesses they have deposed claimed that they were unable to answer what Goodell intended by his statements.
(Record citations omitted).
Ultimately, Judge Toliver ordered Goodell to sit for deposition:
the Court concludes Commissioner Goodell possesses first- hand knowledge of relevant information regarding the events giving rise to Plaintiffs’ causes of action for breach of contract and fraudulent inducement. Said first-hand knowledge includes Goodell’s own statements and actions involving the temporary seating and the video replay board, before, during and after the Super Bowl, as well as his intentions in communicating about the same with fans, including those persons directly affected by the temporary seating issues. Plaintiffs are not required to establish that the matters about which Goodell possesses firsthand knowledge are directly relevant to their claims, only that those matters “bear[] on, or [] reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The Court finds that Plaintiffs have met that burden with respect to the limited issues just referenced.
In addition, it logically follows that if the other NFL executives were unable to answer questions regarding Goodell’s statements, the remaining proffered witnesses, who are not employed by the NFL, would be unlikely to answer those questions as well. Under these circumstances, Plaintiffs are not required to expend additional resources to also depose the third-party witnesses proffered by the NFL. The Court finds Plaintiffs have established that they “first attempt[ed] to obtain the sought after information through less burdensome means of discovery.” Gauthier v. Union Pac. R. Co., 2008 WL 2467016, at *4 n. 2 (E.D. Tex. June 18, 2008).
Judge Toliver imposed conditions on Goodell’s deposition:
Plaintiffs are permitted to depose NFL Commissioner Roger Goodell on the limited topics of (1) his non-privileged statements about the temporary stadium seating, the video replay board, and the affected fans at the Super Bowl XLV; (2) his involvement (a) in developing the video replay board, (b) with the temporary seating, and/or (c) any attempt or goal to break the NFL’s Super Bowl attendance record; and (3) any communications he had with the affected fans — directly or indirectly — before, during and/or after the Super Bowl game, including the intentions behind any such communications. The deposition must be conducted at the NFL’s offices in New York City, unless the parties otherwise agree.