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Case 2:16-cv-00453-RJS-BCW Document 28 Filed 08/08/16 Page 1 of 13

William R. Keeler (Pro Hac)


Keeler & Keeler, LLP
108 E. Aztec Avenue
Gallup, NM 87301
Telephone: (505) 722-5608
Craig K. Vernon (Pro Hac)
Wes S. Larsen, USB No. 14572
James, Vernon & Weeks, P.A.
1626 Lincoln Way
Coeur dAlene, ID 83814
Telephone: (208) 667-0683
Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
THE CORPORATION OF THE PRESIDENT
OF THE CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS, a Utah corporation
sole; LDS FAMILY SERVICES, a Utah NonProfit corporation,

Case No. 2:16-cv-00453-RJS


DEFENDANTS OBJECTION TO
PLAINTIFFS MOTION TO QUASH
SUBPOENA AND FOR ENTRY OF
PROTECTIVE ORDER

Plaintiffs,
Judge Robert J. Shelby
v.
Magistrate Judge Brooke C. Wells
RJ, MM, BN and LK, individuals
Defendants.
COME NOW the Defendants, by and through counsel, and respectfully submit
Defendants Objection to Plaintiffs Motion to Quash Subpoena and for Entry of Protective
Order.
INTRODUCTION AND BACKGROUND FACTS
From March 22, 2016 to June 6, 2016 Defendants RJ, MM, BN and LK, filed Complaints
for Personal Injury (the Tribal Court Actions) against Plaintiffs (the Church Entities) in the
Navajo Nation District Court, District of Window Rock, Arizona (the Tribal Court). Pls.

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Second Am. Compl. for Decl. J. at 1. Those Complaints allege that each Doe Defendant
suffered sexual abuse while enrolled in the Plaintiffs Indian Student Placement Program (the
ISPP); the collective sexual abuse allegations range from the year 1965 to 1983. Id. at 9.
In response, on May 31, 2016, Plaintiffs filed their Complaint for Declaratory Judgment
in this Court seeking a determination that the Tribal Court does not have subject-matter
jurisdiction over the Church Entities in Defendants Tribal Court Actions. Id. at 3.
In an attempt to discover relevant information to defend against Plaintiffs declaratory
judgment action, Defendants sent a letter to Plaintiffs counsel on June 24, 2016 explaining why
a deposition of President Thomas S. Monson was relevant and necessary. See Plaintiffs Motion
to Quash Subpoena and for Entry of Protective Order and Supporting Memorandum,
[hereinafter Pls. M. to Quash] at Ex. A, pp. 24.
Subsequently, on July 21, 2016 Plaintiffs filed their Motion to Quash the subpoena for
President Monsons deposition based on various arguments. See Pls. M. to Quash.
Defendants object based on the reasons below and pursuant to Federal Rules of Civil
Procedure 26(c)(2); Rule 26(d)(1); and Rule 27(c).
LEGAL STANDARD
Rule 26(c) of the Federal Rules of Civil Procedure provides that the court may, for good
cause, issue a protective order "to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense." Under the rule, the party seeking protection has the
burden to show good cause for preventing dissemination of discovery materials. The good cause
standard requires that the moving party identify any specific prejudice or oppression that will be
caused by disclosure. That party must present concrete reasons justifying a protective order and
not rest on unverified fears. Pia v. Supernova Media, Inc., 275 F.R.D. 559, 560 (D. Utah 2011).

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"Good cause" requires "a particular and specific demonstration of fact, as distinguished
from stereotyped and conclusory statements." First Am. Title Ins. Co. v. Nw. Title Ins. Agency,
LLC, No. 2:15-cv-00229-DN-PMW, 2016 U.S. Dist. LEXIS 62526, at *2 (D. Utah May 11,
2016) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 n. 16, 101 S. Ct. 2193, 68 L. Ed. 2d
693 (1981) (internal citation omitted)). [T]he burden is on the party seeking a protective order
to show specific and particular factors why discovery should be limited. Id. (quoting digEcor,
Inc. v. e.Dig. Corp., No. 2:06 cv 437 TS, 2008 U.S. Dist. LEXIS 69931, at *7 (D. Utah Sep. 16,
2008)).
The Federal Rules of Civil Procedure, rule 26(c)(2), states that [i]f a motion for a
protective order is wholly or partly denied, the court may, on just terms, order that any party or
person provide or permit discovery. Because no good cause exists to prohibit this relevant
discovery, Defendants respectfully request this Court deny Plaintiffs Motion to Quash and Entry
for Protective Order
ARGUMENT
I.

Plaintiffs motion should be denied because the legal standard to make President
Monson immune from discovery, has not been met.
Plaintiffs attempt to argue that good cause exists for this Court to prevent the deposition

of President Monson based on the apex doctrine. Although Plaintiffs refrain from using the
term, apex doctrine, their good cause argument is in fact based on this doctrine that aims to
protect apex officers of business entities from undue burdens. See Pls. M. to Quash, at 3.
While not naming this doctrine, Plaintiffs quote the apex doctrines four prong test on page 8 of
their Motion to Quash. Id. at 8. Plaintiffs argue in their briefing: (1) President Monson does not
have direct personal knowledge of the jurisdictional issue; (2) Defendants have not used less
intrusive means of discovery; (3) deposing President Monson would be unduly burdensome; and

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(4) that the deposition is sought for an improper purpose. Plaintiffs derive their good cause
standard and arguments from President Monsons position as an individual holding a high-level
corporate position. See Pls. M. to Quash, at 3, 715.
Next, Plaintiffs attempt to use an Eastern District of Michigan case in order to suggest
that there is a rebuttable presumption of good cause to bar deposing a high-ranking corporate
executive if any one of the four prongs of the apex doctrine are satisfied. Id. While that may
play in Eastern District of Michigan, such an argument is not recognized in Utah or in the Tenth
Circuit.
Plaintiffs quote the apex doctrine from a Central Division of Utah case, yet there is no
mention that the Court was unpersuaded by the apex doctrine argument. Asarco LLC v. Noranda
Mining, Inc., No. 2:12-CV-00527, 2015 WL 1924882, at *3 (D. Utah Apr. 28, 2015). The
Arasco decision quoted a New York case in its citation sentence, writing highlyplaced
executives are not immune from discovery. Id. (citation omitted).
Indeed, the Tenth Circuit does not recognize or follow the apex doctrine. First Am. Title
Ins. Co. v. Nw. Title Ins. Agency, LLC, No. 2:15-cv-00229-DN-PMW, 2016 U.S. Dist. LEXIS
62526, at *1 (D. Utah May 11, 2016). According to Central Division of Utah, the Tenth Circuit
has not adopted the apex doctrine. To the Contrary, in Thomas v. International Business
Machines, the Tenth Circuit analyzed the propriety of a protective order preventing the
deposition of a high-ranking executive under the same Rule 26(c) standard as would be applied
to any other person. Id. (additional citations and quotations omitted).
Plaintiffs reliance on the apex doctrine, a legal standard currently recognized in Utah or
the Tenth Circuit, underscores the fact that Plaintiffs cannot show good cause to block
Defendants attempt at reasonable discovery.

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a.

Under the appropriate Tenth Circuit legal standard, President Monson has
sufficient personal information to allow the taking of his deposition.

In Asarco, the Central Division of Utah set forth the standard for personal knowledge
when it determined a deposition of a high-level corporate officer was warranted when there was
sufficient evidence to conclude that the individual may have relevant information to the issue at
hand. Asarco LLC, No. 2:12-CV-00527, 2015 WL 1924882, at *2. Consequently, the court then
defined relevant information for purposes of discovery as information that appears reasonably
calculated to lead to the discovery of admissible evidence. Id. (quoting Fed. R. Civ. P.
26(b)(1)).
Both Asarco and First Am. Title Ins. Co. acknowledge discovery rules are broad in scope,
supporting the accrual of evidence through these liberal discovery standards. Id. at *3; see also
First Am. Title Ins. Co., No. 2:15-cv-00229-DN-PMW, 2016 U.S. Dist. LEXIS 62526, at *3.
Furthermore, both cases recognize that a perspective witness ordinarily cannot escape
examination by denying knowledge of any relevant facts, because the party seeking to take the
deposition is entitled to test the witnesss lack of knowledge. First Am. Title Ins. Co., No. 2:15cv-00229-DN-PMW, 2016 U.S. Dist. LEXIS 62526, at *3; see also Asarco LLC, No. 2:12-CV00527, 2015 WL 1924882, at *3 ([T]he court finds that under the broad scope of discovery the
evidence is sufficient to allow [] an opportunity to confirm, [] that [the deponent] has no
information relevant to the current action.).
b.

President Monson has relevant information on the jurisdictional issues based


on his long tenure as a senior leader of the Church Entities.

Plaintiffs correctly state that the only issue in this case is [w]hether the Tribal Court may
properly exercise jurisdiction over the Church Entities. Pls. M. to Quash, at 2. Therefore, the
question is whether President Monson, based on the liberal rules of discovery, may have relevant

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information about the jurisdictional issues involved in this dispute.


Indeed, President Monsons impressive move up the leadership ranks of the Church
Entities places him in a unique position to have relevant information about these issues.
President Monson was ordained an Apostle in October of 1963. In 1985, President Monson
served as the second counselor to President Ezra Taft Benson. Since 2008, President Monson
has been the Prophet and President of the LDS Church.
Plaintiffs claim that President Monsons responsibilities as a senior leader of the LDS
Church . . . did not include oversight of the ISPP, and that he would not have been advised of
the particulars of Defendants participation in the ISPP. Pls. M. to Quash, at 6. While this may
be true, this kind of detailed information isnt what Defendants seek by taking this deposition.
Rather, general knowledge of information related to the jurisdictional issues is being sought.
Indeed, it is highly unlikely that President Monson, who became an Apostle in 1963, would not
possess any information about agreements, policies, or contact that the Church Entities, via its
agents like George P. Lee or others, made with the Navajo Nation during the lengthy existence of
the ISPP.
Additionally, a witness cannot escape deposition by denying all knowledge of applicable
facts. Instead, Defendants are entitled to test his claims that he lacks relevant knowledge. First
Am. Title Ins. Co., No. 2:15-cv-00229-DN-PMW, 2016 U.S. Dist. LEXIS 62526, at *3; see also
Asarco LLC, No. 2:12-CV-00527, 2015 WL 1924882, at *3.
President Monson, for example, likely has some relevant information concerning the
following:
1.

George P. Lees position, duties and role with Defendant LDS Family

Services on the Navajo Nation before he was called to be a general authority in 1975.

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2.

Lees activity and duties with the ISPP in his capacity as mission president

over the Arizona Holbrook Mission, which included the Navajo Nation within its
boundaries.

For example, Lees involvement with placement baptisms of Navajo

children on the reservation before, during and after he was a mission president would be
relevant to the jurisdiction analysis.
3.

President Monson would likely have information about Lees duties and

activities as general authority for the Church from 1975 to 1989 as it related to the ISPP
including: where Lee primarily lived, conducted his duties and activities and what
interplay Lee had with the ISPP and the Navajo Nation.
4.

What contact Lee and the Church had with the Navajo Nation on Tribal

land including, but not limited to: recruitment of Navajo children for this program, LDS
missionaries and LDS Family Service employees involvement on Tribal land with this
program.
5.

Conduct within the Navajo Nation that occurred on non-Indian fee

lands, where that conduct may have had a direct effect on the political integrity, the
economic security, or the health or welfare of the Tribe.
6.

Any consensual relationships the Church entered into with the Tribe or its

members through commercial dealing, contracts, leases or other arrangements including


large scale agreements between the Church Entities and the Navajo Tribe setting
parameters for the ISPP, for example.
See Pl.s Second Am. Compl. (Dkt. 17), at Ex. A, 1419; Ex. B, 1418; Ex. C, 1318.
Plaintiffs argument that President Monson has no relevant information on the
jurisdictional issues appears to run counter to their own unique policy relating to knowledge of

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its Prophet and President. According to Church policy, The prophet [President Monson,] is not
required to have any particular earthly training or credentials to speak on any subject or act on
any matter at any time. First Presidency Message, "Fourteen Fundamentals in Following the
Prophet," President Ezra Taft Benson, Of the Quorum of the Twelve, Liahona, June 1981.
Sometimes there are those who feel their earthly knowledge on a certain subject is superior to
the heavenly knowledge which God gives to his prophet . if there is ever a conflict between
earthly knowledge and the words of the prophet, you stand with the prophet. Id.
Moreover, in the Tenth Circuit case cited by Plaintiffs where a protective order was
upheld, the executive officer personally testified in an affidavit that he lacked personal
knowledge. See Thomas v. IBM, 48 F.3d 478, 483 (10th Cir. 1995). President Monson has
submitted no such affidavit. He has unique personal knowledge because of the reasons stated
above; additionally, Church policy states that because of his position as President and Prophet,
President Monsons knowledge is unique and superior on any subject, at any time.
c.

The alternative means of discovery offered by Plaintiffs does not adequately


provide the information needed to determine this case.

Plaintiffs argue that Courts require a party seeking the deposition of a corporate officer
to first obtain discovery from lower-level employees where the corporate officer does not have
unique personal knowledge. Pls. M. to Quash, at 1112 (citing Thomas v. IBM, 48 F.3d 478,
483 (10th Cir. 1995)). Although the Thomas court found it persuasive evidence that a lowerlevel employee was not deposed, the higher-level executive signed an affidavit claiming no
personal knowledge, and the party attempting to depose the higher-level executive failed to
demonstrate that the information she [sought] could not be gathered from other personnel, for
whom a deposition might have been less burdensome. Thomas, 48 F.3d at 483.
The instant case differs significantly from Thomas on both these conditions. President

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Monson has not provided a signed affidavit claiming a lack of personal knowledge.
Additionally, Defendants reasonably believe that Roger W. Van Komen (Van Komen), the
individual offered by Plaintiffs for deposition, cannot possess the unique knowledge that
President Monson possesses.
For example, Van Komen stated in a 2015 deposition that he had been employed by LDS
Family Services for 31 years. Therefore, he began that employment in approximately 1984. See
page 4 of Deposition of Roger W. Van Komen, attached as Exhibit 1 to Affidavit of Craig K.
Vernon in Support Defendants Objection To Plaintiffs Motion To Quash Subpoena And For
Entry Of Protective Order (Vernon Aff.) filed concurrently herewith. This is approximately 19
years after Defendants started in the ISPP, and about a year after the last Defendant alleged any
abuse in the program. Van Komens employment with the Church Entities has been limited to
LDS Family Services. He has never been a general authority. Conversely, President Monson
ascended to the top level of leadership in 1963 when he was ordained as an Apostle.
Even assuming arguendo that Mr. Van Komen may have knowledge of facts relevant to
the jurisdictional issue, this does not relieve President Monson, who likely possesses far superior
knowledge, from testifying at a deposition. For example, Lyle J. Cooper who Defendants
understand was the director or commissioner of LDS Social Services during the time the
Defendants were sexually abused in this program, has already passed away. Defendants believe
Mr. Cooper spoke with President Kimball and the Apostles on a regular basis about this
program, including George P. Lees involvement with the program. Mr. Cooper cannot testify.
Mr. Van Komen wasnt an Apostle of the LDS Church and therefore wasnt privy to those
conversations. In fact, Mr. Van Komen had not even started his position with LDS Family
Services during this time frame. President Monson, who was an Apostle during this time, can

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testify about what he does know about this and other items that are reasonably calculated to
obtain information related to the jurisdictional issues. Vernon Aff., Ex. 2
In a separate litigation, when Mr. Van Komen was questioned in his capacity as a
30(b)(6) designee about who makes decisions and policies for the Church Entities, he replied that
the First Presidency and the Quorum of the Twelve Apostles, are where those decisions are
made. Vernon Aff., Ex. 1, at 25. This statement acknowledges his own limitations when it
comes to policy making and knowledge regarding the Church Entities and is another testament to
the unique and superior knowledge that President Monson possesses.
d.

Based on the standards adopted by this Court, deposing President Monson is


not unduly burdensome.

The Central Division of Utah has recognize[d] that there is a burden inherent in a partys
required attendance at a deposition. Asarco, No. 2:12-CV-00527, 2015 WL 1924882, at *3.
For a protective order, Plaintiffs must show annoyance, embarrassment, oppression, or undue
burden or expense different from that borne by any other deponent. First Am. Title Ins. Co., No.
2:15-cv-00229-DN-PMW, 2016 U.S. Dist. LEXIS 62526, at *2 (quotations and citation omitted).
Plaintiffs do not argue that President Monson would be unduly annoyed, embarrassed,
oppressed, or subject to undue expense. See Pls. M. to Quash, at 1314. Rather, Plaintiffs
allege that President Monsons undue burden arises from his lack of personal knowledge and that
a lower level employee ought to be deposed. Id. These arguments have been refuted above.
Plaintiffs also argue that because President Monson presides over a church with more
than 15 million members, a deposition would be unduly burdensome due to his many
responsibilities. Id. However, in Asarco, the court pointed out that highlyplaced executives
are not immune from discovery. Asarco, No. 2:12-CV-00527, 2015 WL 1924882, at *3
(citation omitted).

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There is simply no evidence to suggest that President Monson is burdened any more than
any other deponent would be. See First Am. Title Ins. Co., No. 2:15-cv-00229-DN-PMW, 2016
U.S. Dist. LEXIS 62526, at *2. Indeed, Defendants have assured Plaintiffs that any burden or
inconvenience will be minimized. Pls. M. to Quash at Ex. A, p. 4. In order to accommodate
President Monson, defense counsel advised Plaintiffs counsel:
I am available weekends and during non-business hours in order to accommodate
President Monsons schedule. Additionally, because of President Monsons
advanced age, we certainly can make reasonable accommodations if he has any
medical or other needs. We are willing to discuss limiting the amount of time for
the deposition as well. . . . His deposition will be centered around the issues
germane to this case only. Id.
The legal standard requires that Plaintiffs present concrete reasons justifying a protective order
and not rest on unverified fears. Pia v. Supernova Media, Inc., 275 F.R.D. 559, 560 (D. Utah
2011).
e.

Defendants purpose in deposing President Monson is not improper; rather,


it is to gain relevant information to defend against the lawsuit President
Monsons corporation filed.

Plaintiffs situate their argument around the un-adopted apex doctrine. Pls. M. to Quash
at 14 (addressing the protection of apex corporate management). Conceding that protective
orders are allowed when discovery is sought for an improper purpose, the Celerity, Inc. case that
Plaintiffs cite, differs from the instant case in a number of ways. See Celerity, Inc. v. Ultra Clean
Holding, Inc., No. C 05-4374 MMC (JL), 2007 U.S. Dist. LEXIS 8295 (N.D. Cal. Jan. 24, 2007).
First, Celerity, Inc. focuses on the un-adopted apex doctrine standard, that the high-level
corporate official might not have unique knowledge. Id. at *9-11. In the case at bar, as
explained in detail above, President Monson likely does have personal knowledge.
Additionally, the court in Celerity, Inc., stated that if the requisite information cannot be
gathered through a lower-level employee, then the apex type employee may be deposed. Id. at 9

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10.

For example, President Monson is the only living person who would have been privy to

conversations about the ISPP, between Lyle J. Cooper of LDS Family Services and the Quorum
of Twelve from 1965-1983.

According to lds.org, Russell M. Nelson, ordained on April 7,

1984, is the most senior apostle after President Monson.


CONCLUSION/REQUEST FOR RELIEF
Due the reasons set forth within this objection, Defendants respectfully request that this
Court dismiss and deny both Plaintiffs Motion to Quash and their Protective Order.
DATED this 8th day of August, 2016
KEELER & KEELER, LLP
JAMES, VERNON & WEEKS, P.A.
Attorneys for Defendants

By:

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/s/ Craig K. Vernon


William R. Keeler
Craig K. Vernon
Wes S. Larsen

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CERTIFICATE OF SERVICE
I do hereby certify that on August 8, 2016, I electronically filed the foregoing
Defendants Objection To Plaintiffs Motion To Quash Subpoena And For Entry Of
Protective Order using the Courts CM/ECF method, and that a copy of the foregoing was
served on all counsel of record, as listed below, via the Courts CM/ECF method.

David J. Jordan
David J. Williams
STOEL RIVES, LLP
201 S. Main Street, Suite 1100
Salt Lake City, UT 84111

/s/ Craig K. Vernon


Craig K. Vernon

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