J.N. v. Terrell (Ex parte Willimon)

• Decision Date: 24 January 2020
• Docket Number: 1180439
• Citation: 299 So.3d 934
• Parties: EX PARTE William "Will" WILLIMON and Debra Wallace-Padgett (In re: J.N. v. Charles Terrell et al.)
• Court: Alabama Supreme Court

299 So.3d 934

EX PARTE William "Will" WILLIMON and Debra Wallace-Padgett

(In re: J.N.

v.Charles Terrell et al.)

1180439

Supreme Court of Alabama.

January 24, 2020

Terry McElheny, North Alabama Conference, United Methodist Church, Birmingham, for petitioners.

Gregory M. Zarzaur and Anil A. Mujumdar of Zarzaur, Birmingham, for respondents.

PARKER, Chief Justice.

William "Will" Willimon, the former bishop of the North Alabama Annual Conference, United Methodist Church, Inc. ("the Conference"), and Debra Wallace-Padgett, the current bishop, petition this Court for a writ of mandamus directing the Talladega Circuit Court to grant them protective orders or, alternatively, to quash their deposition notices in an action against a former youth pastor alleging sexual abuse. We deny the petition.

I. Facts and Procedural History

Charles Terrell, one of the defendants in the underlying action, is the former youth pastor at First United Methodist Church of Sylacauga ("the Church"). The Church is within the governance of the Southeast District, North Alabama Annual Conference, United Methodist Church, Inc. ("the District"), and the District is within the governance of the Conference.

The plaintiff, J.N., was a minor male congregant in the Church.¹ J.N. filed the underlying action in the circuit court alleging that Terrell had sexually abused him. J.N.'s action asserted claims against Terrell, Terrell's wife, the Church, the District, and Rev. Lewis Archer, who was the Church's senior pastor and later the superintendent of the District. The Conference is not a party to the underlying action.

During the course of the litigation, J.N. issued notices of deposition for Willimon and Wallace-Padgett (hereinafter collectively referred to as "the bishops"). The notice for Wallace-Padgett included a duces tecum request for the following categories of documents:

"1. Any and all documents you prepared, reviewed, and/or received related to the Do No Harm sexual ethics seminar in Chicago, IL.

"2. Any and all press releases from the [Conference] or any District within the [Conference] related to allegations of child sex abuse or the prevention of child sex abuse.

"3. Any and all documents you have reviewed that relate or refer to Charles Terrell.

"4. Any and all documents regarding the responsibility that the Bishop of the [Conference] and/or the District Superintendents within the [Conference] have in the prevention of the sexual abuse of children and youth that attend and/or are members of Methodist churches within the [Conference].

"5. Produce any documents in your possession that refer or relate to the measures taken by the [Conference] to ensure compliance with the mandate that a child protection policy to be implemented at all Methodist churches including the [Church] at any time prior to 2014.

"6. All social media posts or blog posts you have made that relate to the prevention of child sex abuse."

In response, the bishops each filed a motion for a protective order or, alternatively, to quash the deposition notices ("the motions"), along with affidavits in which they stated that they had no unique or personal knowledge of the matters contained in J.N.'s complaint. Wallace-Padgett also stated that requiring her to produce the requested documents would be unduly burdensome.

J.N. responded to the motions on December 26, 2018. On February 5, 2019, the circuit court heard oral argument on the motions. On February 8, the circuit court denied the motions without comment. The bishops petitioned this Court for a writ of mandamus, requesting that we reverse the circuit court's order denying the motions.

II. Standard of Review

" ‘A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’

" Ex parte BOC Grp., Inc., 823 So. 2d 1270, 1272 (Ala. 2001).

" ‘ " ‘...[M]andamus will issue to reverse a trial court's ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.’

" ‘ " Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003).

" ‘ "...." ’

" Ex parte Mobile Gas Serv. Corp., 123 So. 3d 499, 504 (Ala. 2013) (quoting Ex parte Meadowbrook Ins. Grp., Inc., 987 So. 2d 540, 547 (Ala. 2007) )."

Ex parte Fairfield Nursing & Rehab. Ctr., LLC, 183 So. 3d 923, 927-28 (Ala. 2015).

III. Discussion

The bishops argue that they are entitled to a protective order or an order quashing the deposition notices. They first argue that this Court should adopt the "apex" rule, which protects high-ranking corporate or government officers from burdensome and unnecessary depositions in matters of which the officers have no unique personal knowledge. Alternatively, they argue that they are entitled to the relief they seek under Rule 26(b)(2)(B), Ala. R. Civ. P. In addition, the bishops argue that J.N.'s requested discovery is merely a "fishing expedition" for impeachment evidence. Finally, Wallace-Padgett argues that the information J.N. seeks is protected by the attorney-client privilege. We address each argument in turn.

A. Apex rule

One court has articulated the apex rule as follows:

"Courts routinely recognize that it may be appropriate to limit or preclude depositions of high-ranking officials, often referred to as ‘apex’ depositions, because ‘high[-]level executives are vulnerable to numerous, repetitive, harassing, and abusive depositions, and therefore need some measure of protection from the courts.’ Thus, parties seeking apex depositions bear the burden of demonstrating an executive has ‘unique knowledge of the issues in the case’ or the information sought has been pursued unsatisfactorily through less intrusive means."

Goines v. Lee Mem'l Health Sys., No. 2:17-CV-656, August 13, 2018 (M.D. Fla. 2018) (not reported in F. Supp.) (citations omitted).

Although the bishops recognize that this Court has never adopted the apex rule, they urge this Court to do so now. The bishops argue that adopting the apex rule would prevent a litigant seeking a deposition from disrupting a high-ranking corporate officer's duties merely because the officer is associated with an entity from which the litigant seeks information. The bishops also argue that the apex rule would provide clarity regarding when trial courts may allow depositions of high-ranking corporate officers and would prevent undue burden, harassment, and delay. The bishops argue that they would be entitled to mandamus relief under the apex rule because they are former and current bishops of the Conference and the plaintiff has not demonstrated that they have unique personal knowledge of the facts in the underlying case.

Although this Court has never expressly adopted the apex rule, we applied a similar analysis in Ex parte Community Health Systems Professional Services Corp., 72 So. 3d 595 (Ala. 2011). See State ex rel. Massachusetts Mut. Life Ins. Co. v. Sanders, 228 W. Va. 749, 724 S.E.2d 353 (2012) (citing Community Health in support of its observation that courts that have allowed depositions of high-ranking corporate officials have done so based on criteria similar to the apex rule). In Community Health, a hospital corporation had planned to relocate a hospital to the City of Irondale but then decided to relocate it elsewhere. The city sued the corporation, alleging breach of contract. In discovery, the city sought to depose the corporation's chief executive officer ("CEO"). The corporation sought a protective order, which the trial court denied.

The corporation petitioned this Court for mandamus relief, arguing that deposing the CEO was not necessary because the CEO did not have unique or superior knowledge about the corporation's decision to change the relocation site. This Court disagreed, holding that the city had demonstrated that the CEO had superior personal knowledge of the information sought. We explained:

"This case does not present a situation where a party is attempting to depose a high-ranking corporate officer who has little to no personal knowledge of the subject matter of the litigation. Indeed, the materials before this Court indicate that [the CEO] was an integral participant in the relocation decision-making process; consequently, only he can provide the information, and a less intrusive means of discovery in this particular case would be inadequate."

72 So. 3d at 603.

In Community Health, the apex rule would not have been dispositive, so we had no need to expressly adopt or reject it in that case. See Miller v. Mobile Cty. Bd. of Health, 409 So. 2d 420 (Ala. 1981) (stating that this Court does not need to decide issues that are not essential to the resolution of an action). However, our analysis in Community Health suggests that, in a case in which a party seeks to depose a high-ranking corporate officer who has little to no personal knowledge of the subject matter, the apex rule might entitle the officer to a protective order.

The case before us, however, is not such a case. Like the trial court in Community Health, the circuit court could have reasonably concluded that the bishops have superior personal knowledge of information that J.N. seeks. J.N. argued in his response to the bishops' motions that he sought factual information within Willimon's personal knowledge regarding Willimon's handling of Conference affairs during his tenure, including implementation of child-sexual-abuse-prevention policies, supervision of defendants Archer and Terrell, and the Conference's previous efforts to address child-sexual-abuse allegations at the local church level. J.N. contends that he was not seeking the contents of the...