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UNITED STATES DISTRICT COURT


DISTRICT OF MINNESOTA
In re NATIONAL HOCKEY LEAGUE
PLAYERS CONCUSSION INJURY
LITIGATION
This Document Relates To:
ALL ACTIONS.

I.

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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

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.

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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.
responses and objections on March 2, 2015.

The NHL filed its written

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.

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. 13-81192CIV, 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 farreaching 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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CASE 0:14-md-02551-SRN-JSM Document 128 Filed 03/25/15 Page 19 of 21

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
charles.zimmerman@zimmreed.com
brian.gudmundson@zimmreed.com
david.cialkowski@zimmreed.com
Hart Robinovitch
Bradley C. Buhrow
ZIMMERMAN REED, PLLP
14646 North Kierland Blvd., Suite 145
Scottsdale, AZ 85254
Telephone: (480) 348-6400
hart.robinovitch@zimmreed.com
brad.buhrow@zimmreed.com

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
sdavidson@rgrdlaw.com
mdearman@rgrdlaw.com
lens@rgrdlaw.com
kdouglas@rgrdlaw.com
jarno@rgrdlaw.com

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
ssilverman@mdattorney.com
sgrygiel@mdattorney.com
bsinclair@mdattorney.com
Plaintiffs Co-Lead Counsel
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CASE 0:14-md-02551-SRN-JSM Document 128 Filed 03/25/15 Page 20 of 21

Lewis A. Remele
Jeffrey D. Klobucar
BASSFORD REMELE
33 S. 6th Street
Minneapolis, MN 55402
Telephone: (612) 333-3000
lremele@bassford.com
jklobucar@bassford.com
scotta@bassford.com
Plaintiffs Liaison Counsel
Thomas Demetrio
William T. Gibbs
Katelyn D. Geoffrion
CORBOY & DEMETRIO
33 N. Dearborn Street
Chicago, IL 60602
Telephone: (312) 346-3191
tad@corboydemetrio.com
wtg@corboydemetrio.com
kdg@corboydemetrio.com

Brian D. Penny
Mark S. Goldman
GOLDMAN, SCARLATO & PENNY PC
101 E. Lancaster Ave., Suite 204
Wayne, PA 19087
Telephone: (484) 342-0700
penny@gskplaw.com
goldman@gskplaw.com

Vincent J. Esades
James W. Anderson
HEINS MILLS & OLSON, PLC
310 Clifton Ave.
Minneapolis, MN 55403
Telephone: (612) 338-4605
vesades@heinsmills.com
janderson@heinsmills.com

Thomas J. Byrne
Mel Owens
NAMANNY, BYRNE, & OWENS, APC
2 S. Pointe Dr.
Lake Forest, CA 92630
Telephone: (949) 452-0700
tbyrne@nbolaw.com
mowens@nbolaw.com

David I. Levine
THE LEVINE LAW FIRM P.C.
1804 Intracoastal Drive
Fort Lauderdale, FL 33305
Telephone: (954) 385-1245
agentdl@bellsouth.net

Michael R. Cashman
Richard M. Hagstrom
Shawn Stuckey
ZELLE HOFMANN VOELBEL
& MASON LLP
500 S. Washington Ave., #4000
Minneapolis, MN 55415
Telephone: (800) 899-5291
mcashman@zelle.com
rhagstrom@zelle.com
sstuckey@zelle.com
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CASE 0:14-md-02551-SRN-JSM Document 128 Filed 03/25/15 Page 21 of 21

Daniel E. Gustafson
Daniel C. Hedlund
GUSTAFSON GLUEK PLLC
Canadian Pacific Plaza
120 S. 6th Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
dgustafson@gustafsongluek.com

Jeffrey D. Bores
Bryan L. Bleichner
CHESTNUT CAMBRONNE PA
17 Washington Ave. North, Suite 300
Minneapolis, MN 55401
Telephone: (612) 339-7300
jbores@chestnutcambronne.com
bbleichner@chestnutcambronne.com

Plaintiffs Executive Committee

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