Download court’s order (PDF) allowing Ryder Ripps to depose Bored Ape co-founders Wylie Aronow on Jan. 9 and Greg Solano on Jan. 11
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Magistrate Judge John E. McDermott denied Yuga Labs’ motion for a protective order. The Court found all of Yuga Labs’ argument to be unpersuasive:
Lack of diligence by Yuga Labs: “Yuga’s Motion does not come close to meeting these standards. The depositions were noticed on December 15, 2022, for January 9 and 11, 2023. Yuga’s argument that it could not bring a timely, regularly noticed motion is meritless. It could have brought a regular motion with an application to shorten time back in December. Instead, Yuga waited until two business days before the January 9 Aranow deposition to seek relief, making it near impossible for the Court to issue a ruling before the January 9 deposition. Compounding Yuga’s lack of diligence, it failed to respond to several requests by Defendants to discuss deposition scheduling. (Dkt. 76 at 3-4.) This failure to confer was a violation of Local Rule 37-1, itself sufficient to deny the Motion. See So v. Land Base LLC, 2009 WL 2407954, at *2 (C.D. Cal. Aug. 4, 2009). Yuga says it met and conferred on January 4, but this assertion ignores its prior repeated failure to confer.”
Lack of merit in Yuga Labs’ assertion of apex witness doctrine: “The Motion is also deficient on the merits. There is no declaration from either of the purported apex witnesses on their availability. Additionally, deposing the witnesses before a 30(b)(6) deposition hardly constitutes irreparable injury, especially here. This is not a case where a CEO has limited or no knowledge of lower level activities. Apple Inc. v. Samsung Electronics Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012).
“This is a case where the two purported apex witnesses are the only people who have knowledge of the creation of the marks such that exhaustion of other sources is not required. See Ahlman v. Barnes, 2021WL 1570838, at *4 (C.D. Cal. Mar. 9, 2021) (exhaustion is not an absolute requirement); Rosales v. FitFlop USA, LLC, 2013 WL 12416060, at *4 (S.D. Cal. Jan. 4, 2013) (“Particularly given the admittedly small size of the company . . . there does not appear to be a viable reason why plaintiffs should be required to take the depositions of lower level executives or employees first.”).”
Yuga Labs had invoked the “apex witness” doctrine that protects the top executives of companies from being deposed until it is shown that other employees of the company cannot provide the relevant information in a deposition. The court rejected Yuga Labs’ request. Now Ripps can proceed forward in deposing both Aronow and Solano.
Indeed, the Court is allowing Aronow to be deposed today as scheduled–and, if he cannot make it, then Yuga Labs must pay “for … any expenses associated with the failed deposition.”
**COI disclosure: I own NFTs by Yuga Labs: a Mutant Ape and Otherdeed.
