On July 1, 2013, Magistrate Judge Toliver issued an Order (available here) in Good Technology v. Fixmo that resolved Good’s motion seeking to quash the deposition notice of its former CEO (who is now Executive Chairman of Good’s Board of Directors). Judge Toliver held:
Without question, as Executive Chairman of the Board of the Plaintiff company, [the noticed individual] is an apex executive. Moreover, there is insufficient evidence that [he] possesses “firsthand and non-repetitive knowledge” regarding the relevant issues. See Computer Acceleration Corp., 2007 WL 7684605, at *1 (emphasis added). Specifically, while the emails attached to Defendants’ response demonstrate that [he] was involved in various meetings and strategy sessions, they do not show that [he] is the only person with knowledge of those events. Particularly germane to the Court’s determination that the requested relief is warranted is the fact that Defendants have not first deposed lower-ranking employees and [Good’s current CEO] before seeking [the Executive Chairman’s] deposition, as is the approach sanctioned by Rule 26(b)(1) and this Circuit’s precedent.
Judge Toliver indicated that “Defendants may petition the Court for leave to depose [the Executive Chairman] in the future, if, after taking the depositions of the other individuals proposed by Plaintiff, Defendants are unable to obtain the relevant and material information sought.”