Nat'l Collegiate Athletic Ass'n v. Finnerty

• Decision Date: 19 July 2022
• Docket Number: Supreme Court Case No. 21S-CT-409
• Parties: NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Appellant v. Jennifer FINNERTY, et al., Appellees
• Court: Indiana Supreme Court

191 N.E.3d 211

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Appellant

v.Jennifer FINNERTY, et al., Appellees

Supreme Court Case No. 21S-CT-409

Supreme Court of Indiana.

Argued: November 2, 2021

Filed July 19, 2022

ATTORNEYS FOR APPELLANT: William F. Stute, Marc R. Shapiro, Francesca Morency, Orrick, Herrington & Sutcliffe LLP, Washington, D.C., Nicholas J. Nelson, Faegre Drinker Biddle & Reath LLP, Minneapolis, Minnesota, Brian J. Paul, Patrick H. Reilly, Daniel E. Pulliam, Bianca M. Eddy, Faegre Drinker Biddle & Reath LLP, Indianapolis, Indiana

ATTORNEYS FOR APPELLEES: Robert T. Dassow, Nicholas C. Deets, Tyler J. Zipes, Hovde, Dassow + Deets, LLC, Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE STATE OF INDIANA: Aaron T. Craft, Section Chief, Civil Appeals, Office of the Attorney General, Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE PRODUCT LIABILITY ADVISORY COUNCIL, INC.: Katherine D. Althoff, Ice Miller LLP, Indianapolis, Indiana, Richard B. North, Nelson Mullins Riley & Scarborough LLP, Atlanta, Georgia

ATTORNEY FOR AMICUS CURIAE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA: Christopher P. Gramling, Shook, Hardy & Bacon, LLP, Kansas City, Missouri

On Petition to Transfer from the Indiana Court of Appeals, No. 20A-CT-1069

Rush, Chief Justice.

Depositions are central to the discovery process, often serving as the factual arena where a majority of litigation takes place. Our trial rules allow parties to depose anyone with information relevant to the lawsuit. But they also give trial courts discretion to issue a protective order to protect a deponent from annoyance, harassment, or embarrassment.

Here, the NCAA twice moved unsuccessfully for a protective order to prevent the plaintiffs from deposing three of its high-ranking executives. Following the court's second denial order, the NCAA sought discretionary interlocutory review under Indiana Appellate Rule 14(B), asking whether Indiana should adopt the apex doctrine. This doctrine can prevent parties from deposing top-level corporate executives absent the requesting party making certain initial showings. The plaintiffs, citing existing protections under our trial rules, contend that adopting the apex doctrine is unnecessary. And as a threshold issue, the plaintiffs, characterizing the NCAA's second motion as either a repetitive motion or a motion to reconsider, maintain the appeal is untimely.

Addressing these claims requires us to resolve two issues of first impression. We first hold that a trial court's order on a repetitive motion or a motion to reconsider is an "other interlocutory order" under Rule 14(B) and, thus, this appeal is properly before us. Then, though we decline to adopt the apex doctrine, we establish a framework that harmonizes its underlying principles with our applicable trial rules to assist courts in determining whether good cause exists to limit or prohibit the deposition of a top-level official in a large organization. We ultimately remand for the trial court to evaluate the NCAA's second motion for a protective order with the benefit of this guidance.

Facts and Procedural History

Headquartered in Indianapolis, the National Collegiate Athletic Association (NCAA) is a nonprofit organization that regulates collegiate athletics nationwide. Though the organization was founded "to keep college athletes safe," in recent years, former college football players have filed "more than 500 class action lawsuits" against the NCAA, many of which contend that, during the athletes’ competitive years, the NCAA failed to implement "proper policies for preventing, diagnosing, or managing football head injuries

."

Here, three lawsuits have been brought on behalf of former college football players Cullen Finnerty, Andrew Solonoski Jr., and Neal Anderson (the "Athletes"). The Athletes competed at different NCAA member institutions and at different times: Finnerty at the University of Toledo and Grand Valley State University between 2001 and 2006; Solonoski at North Carolina State University between 1966 and 1970; and Anderson at the University of Illinois between 1960 and 1964. During their participating years, each athlete sustained several concussive and subconcussive injuries. Following their collegiate careers, the Athletes suffered from various physical and mental conditions, ranging from headaches, motor impairment, and loss of impulse control to memory loss, paranoia, anxiety, rage, and depression. Ultimately, all three men were diagnosed with chronic traumatic encephalopathy

(CTE)—a neuro-degenerative disease linked to repetitive brain trauma. Finnerty, Anderson, and Solonoski passed away in 2013, 2018, and 2021, respectively.

The Athletes’ legal representatives claim that despite being aware of the consequences of repetitive head trauma

, the NCAA failed to implement reasonable concussion-management protocols to protect the Athletes. The trial court consolidated the three lawsuits for pretrial discovery purposes.

Near the beginning of the discovery phase, the Athletes issued deposition notices for three NCAA executives: Mark Emmert, President; Donald Remy, Chief Legal Officer and Chief Operating Officer; and Brian Hainline, Chief Medical Officer. The NCAA responded by filing a motion for a protective order to quash the depositions, relying in relevant part on the apex doctrine, which generally shields high-level executives from depositions unless the requesting party shows (1) the executive possesses unique or personal knowledge relevant to the issues being litigated and (2) the information cannot be obtained through a less intrusive discovery method.

The NCAA claimed—with supporting affidavits—that the executives possessed neither "first-hand personal knowledge" nor "unique or superior knowledge" about the Athletes themselves or the NCAA's awareness of CTE during the Athletes’ respective competitive years. In response, the Athletes maintained that the NCAA failed to show the requisite good cause for a protective order, claiming each executive possesses relevant information and less intrusive methods were inadequate.

After a hearing, the trial court issued an order granting in part and denying in part the NCAA's motion for a protective order. Specifically, the court imposed topical restrictions for the Emmert and Remy depositions but not for the Hainline deposition. About a month later, the NCAA filed a motion to certify the trial court's order for discretionary interlocutory appeal under Indiana Appellate Rule 14(B). But because the court did not rule on that motion within thirty days, it was deemed denied. See Ind. Appellate Rule 14(B)(1)(e). A few weeks later, the trial court belatedly granted the NCAA's motion for certification. The NCAA, however, believing it was time barred, did not file a motion requesting the Court of Appeals to accept jurisdiction over the matter.

The NCAA later filed a second motion for a protective order which, again, sought to quash the three depositions. In addition to attaching the executives’ affidavits, the NCAA included excerpts from the depositions of two lower-level employees that the Athletes conducted after the trial court's decision on the first motion. Pointing to these depositions, the NCAA asserted that the Athletes had less intrusive discovery methods that should be exhausted before deposing the three executives. Alternatively, the NCAA requested that the trial court certify its decision for interlocutory appeal if it decided not "to prohibit the depositions at this juncture." The Athletes asked the court to deny both requests, characterizing the NCAA's motion as a "repetitive motion" or a "motion for reconsideration" which, under Indiana Trial Rule 53.4(A), cannot "delay the trial or any proceedings in the case."

The trial court summarily denied the NCAA's second request for a protective order but certified that order for discretionary interlocutory appeal pursuant to Appellate Rule 14(B). On the NCAA's timely request, the Court of Appeals accepted jurisdiction over the matter. Nat'l Collegiate Athletic Ass'n v. Finnerty , 170 N.E.3d 1111, 1117 (Ind. Ct. App. 2021). The panel did not address the protective-order issue, however, because a majority held the NCAA had forfeited its right to appeal. Id. at 1120. Specifically, the majority concluded the NCAA's second motion for a protective order was "nothing more than a motion for the trial court to reconsider its earlier ruling seeking a renewed opportunity to" appeal the issue. Id. Thus, relying on Trial Rule 53.4(A), the majority held the trial court's order on that motion could not extend the time within which to seek a discretionary interlocutory appeal. Id.

The NCAA petitioned for transfer, which we granted, vacating the Court of Appeals opinion. App. R. 58(A).

Discussion and Decision

We first address a threshold issue: whether the trial court's second order denying the NCAA's motion for a protective order can be certified for discretionary interlocutory review under Appellate Rule 14(B). The Athletes argue that the NCAA's second motion was nothing more than a reconsideration motion that cannot extend the time for seeking appellate review. The NCAA disagrees, contending that "no category of interlocutory orders is ineligible for Rule 14(B) certification."

We hold that Appellate Rule 14(B) broadly permits review of "other interlocutory orders," including an order on a repetitive motion or a motion to reconsider. Such an appeal is proper so long as the trial court timely certifies the order, and the Court of Appeals accepts jurisdiction. Because the NCAA satisfied both conditions, this appeal is properly before us.

We next consider whether to adopt the apex doctrine. In recognition that executives who are at the "apex" of a corporation's hierarchy can be vulnerable to repetitive or harassing depositions, the apex doctrine—or apex-deposition rule—generally shields such officials from depositions unless the requesting party makes two showings. See, e.g. , Crown Cent....