The test under Rule 26 is not whether a putative deponent had personal involvement in an
event, or even whether she has “direct” knowledge — which is merely another way of saying that she
was a participant in the event — but whether the witness may have information from whatever source
that is relevant to the claim or defense. Relevant information need not be admissible at trial if the
discovery appears to be reasonably calculated to lead to discovery of admissible evidence. See Rule
26(b)(1). In short, even if one could accept at face value Ms, Boigegrain’s claim of lack of personal
involvement, her affidavit is analytically irrelevant.

The cases that the General Board relies upon are not to the contrary. Each involves
discretionary decisions which are necessarily fact intensive and thus not outcome-determinative here.
TM[D]iscretion denotes the absence of a hard and fast rule.'" Langnes v. Green, 282 U.S. 531, 541
(1931). See also Pruitt vy. Mote, 472 F.3d 484 (7th Cir.2006); Rogers v. Loether, 467 F.2d 1110,
1111-1112 (7th Cir.1972) (Stevens, J.), affd sub nom, Curtis v, Loether, 415 U.S. 189 (1974). Being
atange, not a point, discretion allows two decision-makers-on virtually identical facts to arrive at
opposite conclusions, both of which constitute appropriate exercises of discretion, Compare United
States v, Boyd, 55 F.3d 239 (7th Cir .1995) with United States y. Williams, 81 F.3d 1434 (7th
Cir.1996).' Or, as Judge Posner has put it, "(t]he striking of a balance of uncertainties can rarely be
deemed unreasonable...." United States v. Bullion, 466 F.3d 574, 577 (7th Cir.2006).

This is not to say that discretionary choices are lefl to a court's inclination or whim. Those

' Both cases involved motions for a new trial based on the government's suppression of the same
evidence against different defendants, who were members of the El Rukn street gang. In Boyd, the district
court found that the suppression mandated a new trial. In Williams, the court on the same record came to the
opposite conclusion. Chief Judge Posner authored both opinions for a unanimous panel, which affirmed the
seemingly irreconcilable decisions as within that spectrum of decision-making inherent in the very concept
of discretion, saying, "Chief Judge Aspen and Judge Mills might reach opposite results on the same record
yet both be operating within the outer limits of their lawful discretion." Williams, 81 F.3d at 1440.

5



is not immune from responding to reasonably scheduled discovery, Clinton v. Jones, 520 U.S. 681

(1997), neither is the General Secretary and CEO of the General Board of Pension and Health
Benefits of the United Methodist Church. See also 8 Wright & Miller, §2037 at 500-502; CBS, Inc.
vy, Ahern, 102 F.R.D. 820, 822 (S.D.N.Y. 1984). The defendant’s iravel argument is not only
unsustainable as an analytical matter, it is unsustainable as a factual matter. Ms. Boigegrain claims
to travels thirty per cent of the time. But that leaves seventy percent of her time that she is available
for deposition. As with the President of the United States — who also travels frequently and on
business that is no less important than Ms. Boigegrain’s — scheduling, not prohibition,
accommodates and harmonizes the inevitably competing interests involved in discovery matters.*

In short, highly placed executives are not immune from discovery, and the fact that an
executive has a busy schedule cannot shield that witness from being deposed. General Star
Indemnity Co, vy, Platinum Indemnity Ltd., 210 F.R.D, 80, 83 (S,D.N.Y. 2002); Six West Retail
Acquisition, 203 F.R.D, at 102.

CONCLUSION

The record is more than adequate to demonstrate a likelihood that Ms. Boigegrain has
knowledge about the issues in this case. How extensive thal knowledge is remains to be seen. But
that is the purpose of discovery. Her claim that she is busy doing the work of the Board is
insufficient to preclude discovery. Indeed, were that claim successful, a vast amount of the discovery
routinely accomplished in the courts of this nation would become impermissible. Rule 26 invests

a court with broad discretion to regulate and supervise discovery. Crawford-El v. Britton, 523 U.S.

>The claim originally made in open court was that Ms. Boigegrain traveled “three-fourths of the year
around the world globally.” (Plaintiff's Response and Opposition, Ex. 15), Even if this estimate were true,
Ms. Boigegrain would not be unavailable for a deposition.

10



F.3d 478, 483-84 (10th Cir. 1995) (upholding lower court's issuance of protective order precluding
deposition of chairman of the board of IBM, who testified via affidavit that he lacked personal
knowledge of any facts supporting plaintiff's age discrimination claims); Lewelling v. Farmers Ins.,
879 F.2d 212, 218 (6th Cir. 1989) (upholding district court's exercise of discretion in granting
protective order barring plaintiff from deposing CEO, who lacked knowledge of pertinent facts in
case brought by employees alleging breach of contract and fraud).

However, those cases do not pretend to articulate an inflexible rule that would mandate the
issuance of a protective order solely on the strength of a prospective deponent’s denial of knowledge.
Indeed, most cases have refused to accept this kind of ex parte tactic, recognizing that a party has
aright to test the validity of the assertions. See discussion at 4, supra; Six West Retail Acquisition
v. Sony Theatre Management Corp., 203 F.R.D. 98, 102 (8.D.N.Y. 2001); lerardi v. Lorillard, Inc.,
1991 WL 66799, *1 (E.D.Pa. Apr. 15, 1991)(courts have rejected claims of ignorance by high
corporate officials as grounds for issuing protective orders against their depositions). Ms. Boigegrain
has not even advanced such a claim. She merely denies personal involvement and that is manifestly
inadequate under all the cases.

Mader v. Motorola Inc., No. 92 C 8089, 1994 WL $35125, at *3 (N.D.IIL Sept. 30, 1994)
on which the defendant appears to place excessive reliance, (Memorandum in Support, at 3; Reply
in Support, at 3), saps the defendant’s argument of any vitality. There, then Magistrate Judge
Gottschall issued an order prohibiting the deposition of Gary Tooker, Motorola’s new CEQ, not
because he was not personally involved in the events of the case — having only come on board until
about a year after the plaintiffs termination — but because there was absolutely nothing in any

document, witness statement, or deposition from which it could even arguably be concluded that he



choices must be guided by sound legal principles. Discretion without a criterion for its exercise is,

as Justice Frankfurter observed, authorization of arbitrariness. Brown v. Allen, 344 U.S, 443, 496
(1953) (Frankfurter, J., concurring and dissenting in part). See also Martin v. Franklin Capital Corp.,
546 U.S. 132 (2005); Albermarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975); United States v.
Roberson, 474 F.3d 432, 436 (7th Cir.2007) (Posner, J.) (An exercise of discretion requires a
consideration of the factors relevant to that exercise). See also Henry Friendly, Indiscretion About
Discretion, 31 Emory L.J. 747 (1982). It is only when no reasonable person could agree with the
district court's conclusion that it can be said that a discretionary choice is abusive. See Rivera v. City
of Chicago, 469 F.3d 631 (7th Cit.2006); Purtell v. Mason, 2006 WL 2037254 at *3 (N.D.II1,2006)
(St.Eve, J.).

Thus, the fact that some courts, in exercising their discretion, have entered protective orders
which appear to have accepted representations in affidavits, does not require that the defendant’s
motion be granted, regardless of the facts of this case. Moreover, not one of the cases cited by the
General Board requires “personal involvement” as a prerequisite to the deposition of a corporate
officer. Phrased differently, not one of the cases has prohibited a deposition merely because the
witness denies “personal participation” in the matters involved in the litigation. And not one of the
cases announces arule that immunizes senior officers of even major corporations from discovery by
virtue of that status or their travel schedules. See 8 Wright, Miller & Marcus, Federal Practice &
Procedure: Civil 2d §2037 at 500-502.

Where a court is satisfied based on all the available information that there is no likelihood
that a witness has knowledge of relevant facts, the issuance of a protective order prohibiting a

deposition has been sustained as an appropriate exercise of discretion. See ¢.g., Thomas v. IBM, 48



incidents forming the basis of plaintiff's claim, but personal involvement in the decision-making
process as well.

This alone would be sufficient to require denial of the defendant’s motion. But there is more.
Ms. Boigegrain has also submitted other documentation tending to show it is likely Ms. Boigegrain
has knowledge about the day-to-day operations in the department and the subject matter of plaintiff's
complaint. For example, a November 5, 2002 email from Helen Exarhakos, an assistant department
manager, informs plaintiff and other members of the department that “Barbara Boigegrain has been
very interested in our Unit this past month.” It goes on to relay Ms. Boigegrain performance
expectations for the department. (Plaintiff's Response and Opposition, Ex. 3). A January 13, 2000
email to the department lets everyone know that Ms. Boigegrain would be holding weekly, informal
meetings in her office regarding work topics. (Plaintiff's Response and Opposition, Ex. 8). Ms.
Boigegrain also appears to have been “Cc’ed” on various departmental emails addressing fairly
mundane topics, including project assignments, computer systems upgrades, overtime, preparation
for annual performance reviews. (Plaintiff's Response and Opposition, Ex, 4-7, 9), Her signature
appears on job performance recognilion certificates. (Plaintiff's Response and Opposition, Ex. 10).
And she dictated memoranda regarding staff departures and personnel changes. (Plaintiff's Response
and Opposition, Ex. 12). At least one pensioner sent Ms. Boigegrain a letter commending the
plaintiff's work. (Plaintiff's Response and Opposition, Ex. 13). Under these circumstances, it
simply cannot be said that Ms. Boigegrain has no “relevant” information as that term is expansively
defined in Rule 26.

That leaves the “I’m too busy because I travel a lot” argument, which is a slightly more

palatable way of expressing the “I’m too important” argument. If the President of the United States


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MERDELIN V. JOHNSON,

Plaintiff,

vs. C No, 02 C 5224 »
fo. 04 C 6158
ALEXANDRA JUNG and GENERAL (Consolidated)
BOARD OF PENSION & HEALTH
BENEFITS OF THE UNITED Judge Wayne R. Anderson
METHODIST CHURCH,
Magistrate Judge

and Jeffrey Cole

JIMMY JACKSON, DEBBIE REID, GERTRUDE
LIVERNOIS, and HELEN EXARHAKOS as
Managing Directors,

Defendants.

MEMORANDUM OPINION AND ORDER RE DEFENDANT’S
MOTION FOR PROTECTIVE ORDER

INTRODUCTION
Ms. Johnson’s complaint alleges that her former employer, the General Board of Pension and
Health Benefits of the United Methodist Church (the “General Board”), failed to promote her
because of her race and national origin, and thereafter terminated her employment in retaliation for
her complaints about that discrimination. As long ago as December 10, 2003, the General Board was

aware of plaintiff's interest in deposing Barbara Boigegrain, the General Board’s “general secretary

and CEQ.” Ms. Boigegrain was named in Ms. Johnson’s initial disclosures as an individual with

information about plaintiff's performance and conduct, her applications for various positions, and



574 (1998). Under the circumstances of this case, it would be a singular abuse of that discretion to

prohibit Ms. Johnson from deposing Ms. Boigegrain. Accordingly, the defendants’ motion for a

protective order [#153] is DENIED.

ENTERED:
TES MAGISTRATE JUDGE

DATE: 5/10/07


“has knowledge of the events surrounding [plaintiff's] termination.” 1994 WL 535125, *3
(Emphasis supplied). Judge Gottschall pointed out that in contrast, plaintiff could at least “point to
a hearsay statement suggesting that Fisher [Tooker’s predecessor] had some knowledge of or
involvement in the decision to terminate” the plaintiff. /d? In the instant case, Ms. Boigegrain was
and continues to be the responsible corporate officer during the time of the critical events, and, the
evidence that Ms. Boigegrain was no stranger to the goings-on in the plaintiffs department and knew
more about her situation and the incidents that form the backdrop of the suit than the Motion for
Protective Order is willing to admit exists — to use Justice Cardozo’s phrase — “in prodigal
profusion.” Brody v. Pecoraro, 250 N.Y. 56, 164.N.E. 741, 742 (N.Y. 1928}(Cardozo, C.J.). True,
the evidence is circumstantial, “but what circumstances!” Branion v. Gramly, 855 F.2d 1256 (7"
Cir. 1988). Cf Miehalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960)(circumstantial
evidence may be more certain, satisfying and persuasive than direct evidence),

There is, for example, a September 26, 2002 memo to file from Alexandra Jung, a managing
director, detailing a meeting she had with plaintiff at which she told her she had no authority to
promise her a promotion because such decisions required approval from Ms. Boigegrain. (Plaintiff's
Response and Opposition, Ex. 11), Ms. Boigegrain was also kept apprised, by memorandum, of
plaintiff's internal complaints of discrimination and her attitude about promotion interviews.

(Plaintiff's Response and Opposition, Ex. 11). Such evidence suggests not only knowledge of the

? Nothing in Judge Gottschall’s opinion requires that a witness have “direct knowledge,” and any
argument whose major premise is that such knowledge is necessary is incompatible with Rule 26’s oxpansive
definition of relevancy as the touchstone for permissible discovery. Suppose, for example, the president of
a corporation had admitted to an associate, months after the event, that he had fired an employee for
statutorily prohibited reasons. Under the defendants’ theory, that confidant could not be deposed because
he did not participate in the events and had no “direct” knowledge. Such an argument would be manifestly
incorrect.



265 (1970); Autotech Technologies, 235 F.R.D. at 440. See also note 1, infra, Although the

question of burdens is emphasized by Ms. Johnson (who is pro se), it is ignored by the defendant
(which is not).

‘To support its motion for a protective order, the General Board relies entirely on Ms.
Boigegrain’s affidavit, in which she avers that she “had no personal involvement” with the alleged
acts of discrimination that form the basis of plaintiff's lawsuit, and that it would be burdensome for
her to sit for a deposition because her position requires her to travel about thirty per cent of the time,
(Motion for Protective Order, Ex. 5). As Judge Easterbrook said in another context, "[s]o
What?...Who cares?... True, but irrelevant." Israel Travel Advis. Serv. v. Israel Iden. Tours, 61 F.3d
1250, 1259 (7th Cir. 1995).

Even ifa putative deponent’s affidavit denying personal involvement or knowledge sufficed,
without more, to preclude discovery — which it seldom does, Van Den Eng v. Coleman, Inc., 2005
WL 3776352 at *3 (D.Kan. 2005); Horsewood v. Kids “R” Us, 1998 WL 326589 (D.Kan. 1998);
WebSideStory, Inc. v. NetRatings, Inc., 2007 WL 1120567 (S.D.Cal. 2007); 8 Wright, Miller &
Marcus, Federal Practice & Procedure: Civil 2d §2037 at 500 (1994) — Ms. Boigegrain’s affidavit
is nonetheless insufficient, for it does not say that she has no information regarding plaintiff s claims.
Although the supporting memoranda contend that Ms. Boigegrain has no “direct knowledge or
information” relevant to plaintiff's claims, that is not what the affidavit says, and unsupported
allegations whether in oral argument, Jn re: Payne, 431 F.3d 1055, 1066 (7" Cir. 2005), or in briefs,
do not count. See United States ex rel. Feingold v. AdminiStar Federal, Inc.,324 F.3d 492, 494 (7
Cir. 2003); IFC Credit Corp. v. Aliano Brothers General Contractors, Inc,, 437 F.3d 606, 610-611

(7" Cir. 2006). Cf Allen v. CIA, 317 £.3d 676, 702 (7" Cir, 2003)(Posner, J).



regard to the incidents of alleged discrimination, harassment, or retaliation at issue in plaintiff's

lawsuit and that as the General Board’s general secretary and chief executive officer, Ms. Boigegrain
is too busy to be deposed, given her extensive travel commitments for the Board.

THE DEFENDANT HAS FAILED TO DEMONSTRATE
ITS ENTITLEMENT TO A PROTECTIVE ORDER

Contrary to the common law’s sporting theory of justice, 6 Wigmore, Discovery §1845 at 490
(3 Ed. 1940), the Federal Rules of Civil Procedure provide for liberal discovery. Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 512 (2002), Under Rule 26(b)(1), "[p]arties may obtain discovery
regarding any mattcr, not privileged, that is relevant to the claim or defense of any party. ..." As
expansive as the definition of relevancy is under Rule 40] of the Federal Rules of Evidence, United
States v. Murzyn, 631 T.2d 525, 529 (7th Cir.1980); United States v. Marks, 816 F.2d 1207, 1211
(7th Cir.1987), the standard under the discovery provisions of the Federal Rules of Civil Procedure
is even broader. Hofer v. Mack Trucks, 981 F.2d 377 (8th Cir.1992). Nonetheless, under Rule 26,
the court may enter an order "for good cause shown ... to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense...." Where the movant has sustained its
burden of showing good cause, the order may provide “that the disclosure or discovery not be had
. +." Rule 26(c)(1).

The burden to show good cause is on the party seeking the protective order. Jepson, Inc. v,
Makita Elec. Works, Ltd. 30 F.3d 854, 858 (7th Cir. 1994); Autotech Technologies Ltd. Partnership
vy, Automationdirect.com, Inc., 235 F.R.D. 435, 440 (N.D.Ill. 2006). Conclusory statements of
hardship are not sufficient to carry this burden. See Zenith Electronics Corp. v. Exzec, Inc., 1998

WL 9181 at *8(N.D.IIL 1998); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2035, at



defendants’ conduct.

On February 6, 2007, plaintiff, acting pro se, sent an email to the General Board which
appears to confirm an earlier discussion between the parties regarding plaintilf deposing four
individuals, including Ms. Boigegrain. The plaintiff proposed March 5, 2007 as a date for Ms.
Boigegrain’s deposition, and asked the General Board to respond quickly, given the April discovery
deadline. (Motion for Protective Order, Ex. 1; Plaintiff's Response and Opposition, Ex. 2), The
General Board did not respond for a month. Not until the plaintiff sent it another email was there
aresponse. (Motion for Protective Order, Ex. 3, (2-3;Plaintiff's Response and Opposition, Ex. 3).
In that email, the Board’s counsel expressed the view that they did “not believe that Ms. Boigegrain
ha[d] any knowledge relevant to [plaintiff's] claims, or that is likely to lead to any information that
is relevant to |plaintiff's| claims.” (Motion for Protective Order, Ex. 2). The General Board
indicated that it was inclined to move for a protective order barring the deposition of Ms. Boigegrain,
but wanted “to give [plaintiff] an opportunily to explain why [she] believe(d] that Ms. Boigegrain
ha|d] information relevant to [plaintiff's] claims. (/d.). It asked plaintiff to do so as soon as
possible,

Plaintiff replied promptly by email on March 8, 2007. She explained that she felt Ms.
Boigegrain was a key witness with relevant information to plaintiff's performance at the General
Board. Plaintiff referred the General Board to emails in its possession from the human resources
department to Ms. Boigegrain regarding plaintiff's job interviews. If the General Board found that
inadequate, plaintiff suggested it go ahead and file its motion for a protective order.

‘That is exactly what happened. The General Board has moved for a Protective Order barring

Ms. Johnson from deposing Ms. Boigegrain on the ground that she had no personal involvement with