United States District Court, D. Utah
J. Shelby District Judge
MEMORANDUM DECISION AND ORDER DENYING MOTION TO
C. Wells United States Magistrate Judge
matter is referred to the undersigned in accordance with
28 U.S.C. 636 (b)(1)(A) from Judge Robert
Shelby. Pending before the court is
Defendants' short form discovery motion seeking to compel
Plaintiff United Automobile Insurance Company (UAIC) to make
Richard Parrillo, UAIC's Chief Executive Officer,
available for deposition. Previously, the undersigned denied
Plaintiff's Motion to Quash the subpoena issued to Mr.
Parrillo without prejudice. Now Defendants seek to compel the
deposition of Mr. Parrillo. As set forth below the court
finds that Defendants have not yet met the standards found in
the apex doctrine. Therefore, the Motion to Compel will be
noted in the prior order concerning Mr. Parrillo's
deposition, this action is a malpractice case brought by
Plaintiff against Defendants. The circumstances giving rise
to the dispute come from an underlying lawsuit, where
following trial, Plaintiff's insured was found at fault
and a jury awarded a judgment against the insured for $936,
017.00. UAIC settled the judgment and discharged
it on behalf of their insured for over $700, 000. UAIC also
paid the fees and reimbursed Defendants for the costs
associated in bringing the defense in the underlying
action. Plaintiff then filed the instant case
against Mr. Collins and the law firm of Stucki & Rencher
alleging professional negligence/malpractice, negligence,
equitable subrogation and breaches of certain duties and
[u]nder the apex doctrine, a court may protect high level
corporate executives from the burden of attending a
deposition under the following circumstances: ‘(1) the
executive has no unique personal knowledge of the matter in
dispute; (2) the information sought from the executive can be
obtained from another witness; (3) the information sought
from the executive can be obtained through an alternative
discovery method; or (4) sitting for the deposition is a
severe hardship for the executive in light of his obligations
to his company.'
27, 2017, Defendants served Richard Parillo with a subpoena
commanding him to appear for a deposition on August 29, 2017.
Plaintiff sought to quash the subpoena. In denying that
motion without prejudice the court adopted Plaintiff's
proposal finding “it is too early to determine exactly
whether Mr. Parillo will have unique personal knowledge or if
the information sought from him will already be provided by
Ms. Covolo and the other employees.”
note the 30(b)(6) deposition of Ms. Covolo has occurred and
there are still outstanding issues that allegedly only Mr.
Parillo can address. Defendants argue Mr. Parrillo personally
participated in UAIC's evaluation of the underlying
litigation and his deposition would not be burdensome or
costly since it would be held near in Miami, Florida, which
is UAIC's headquarters and Mr. Parillo's residence.
The court is not persuaded by Defendants' arguments.
have not shown Mr. Parillo has unique personal knowledge of
the matter or that the information cannot be obtained from
another witness. There are still other witnesses, such as
Plaintiffs general counsel Paul Susz, or others involved in
the decision making process, that Defendants may depose who
are likely to have the desired information. Based on the
current record before the court the undersigned is not
convinced that Mr. Parillo should be deposed at this time.
Motion to Compel Deposition of Richard Parrillo is DENIED.
Defendants may renew their motion provided they make a more
substantial showing of ...