United States District Court, E.D. Missouri, Eastern Division
SANDRA DRAKE and RANDY SMITH, on behalf of themselves and others similarly situated, Plaintiffs,
STEAK N SHAKE OPERATIONS, INC., Defendant.
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Steak N Shake
Operations, Inc.'s ("SnS") Motion for
Protective Order. (Doc. 223.) Plaintiffs oppose the motion
(Doc. 225), and SnS has replied (Doc. 226).
26, 2018, Plaintiffs noticed a deposition of SnS CEO Sardar
Biglari. (See Doc. 223.) Plaintiffs intend to ask
Biglari about SnS's 2016 decision to reclassify Managers
as non-exempt, overtime-eligible employees and subsequent
decision to return them to exempt status. (See Doc.
225 at 2.) Plaintiffs suggest that these decisions reflect
Biglari's view of Managers' qualification for exempt
status and that only he can say for sure why Managers were
reclassified. (Id.) SnS asserts that the change in
classification was motivated by the Department of Labor's
proposed amendment to salary requirements and that
Managers' job duties were not discussed. (Doc. 224 at
1-2.) Because this case turns on the issue of Managers'
job duties, SnS argues that the 2016 decision has no
relevance to this suit. Plaintiffs respond that Biglari's
participation is relevant to SnS's knowledge of the FLSA
and Plaintiffs' allegation that SnS willfully violated
the statute or otherwise acted in bad faith. (Doc. 225.)
Courts may limit the frequency or extent of discovery when
the information sought is cumulative or duplicative, could be
obtained from a more convenient source, or is outside the
scope of discovery. Fed.R.Civ.P. 26(b)(2)(C). To that end, a
court may enter a protective order forbidding a deposition to
protect a party from undue burden or expense. Fed.R.Civ.P.
26(c)(1). Information that is not relevant to a claim or
defense is outside the scope of discovery. Fed.R.Civ.P.
addition, courts are often skeptical of attempts to depose
high-level corporate executives in light of the increased
risk of harassment or abuse directed at a defendant's
leadership. This so-called "apex deposition
doctrine" prohibits plaintiffs from deposing high-level
corporate officials unless the plaintiff can show that
"(1) the executive has unique or special knowledge of
the facts at issue, and (2) other less burdensome avenues for
obtaining the information sought have been exhausted."
Gladue v. Saint Francis Med. Ctr., No.
1:13-CV-00186-CEJ, 2014 WL 7205153, at *1 (E.D. Mo. Dec. 17,
2014) (quoting Ingersoll v. Farmland Foods, Inc.,
No. 10-6046-CV-SJ-FJG, 2011 WL 1131129, at *7 (W.D. Mo. Mar.
The "Facts at Issue"
Court finds that Plaintiffs cannot make the required showing.
At issue in this case is whether SnS Managers are properly
classified as exempt administrative or executive employees
under the Fair Labor Standards Act ("FLSA"), 29
U.S.C. § 216(b), and Missouri law. (Doc. 1 at 6-8.) To
establish that Managers qualify for either, SnS must show
that they meet minimum compensation requirements ("the
salary test") and that their job duties align with those
listed in the exemptions ("the duty test").
See 29 C.F.R. § 541.100, .200. Plaintiffs do
not dispute that they meet the salary test. Instead, they
argue that their actually daily work activity does not meet
the duty test under either exemption. Accordingly, the
"facts at issue" in this case, for purposes of the
apex deposition doctrine, are those that relate to
Managers' job duties.
Unique or Special Knowledge "
Court concludes that Plaintiffs have not shown that Biglari
has unique or special knowledge of Managers' job duties.
SnS asserts that the reclassification decision was based on
the higher threshold for the salary test and not the duty
test, and that therefore Biglari does not possess unique or
special knowledge regarding the facts at issue in this case.
That assertion is supported by the deposition testimony of
SnS COO Scott Moore (Doc. 224-2 at 5 (testifying that the
reclassification decision was the result of the Department of
Labor's amended regulations)), the sworn statement of SnS
CFO Duane Geiger (Doc. 224-3 at 1-3 (stating that the
reclassification decision was based on the increase salary
requirement and did not include a discussion of job duties)),
and the timing of the change (See Id. at 2 (stating
that SnS Managers were reclassified as overtime-eligible in
November 2016)); Fact Sheet: Final Rule to Update the
Regulations Defining and Delimiting the Exemption for
Executive, Administrative, and Professional Employees (May
(stating that the increased minimum compensation requirements
would go into effect on December 1, 2016).
argue that Biglari was the ultimate decision-maker and that
"[m]is classification cases involve ... the reasons why
an employer classified an employee as overtime exempt in the
first place." (Doc. 225 at 8.) However, the Court does
not see how a CEO making a final decision as to compensating
employees necessarily indicates that he or she possesses some
unique or special knowledge, especially concerning a
statutory provision that did not affect the decision. Indeed,
Moore testified that Biglari's final decision to
reclassify Managers amounted to little more than a blessing
of Moore's proposed solution. (Doc. 224-2 at 7.)
extent the reclassification decision is relevant to
Plaintiffs' claims, others-some of whom have testified
already and at least one other who will do so soon-have
comparable knowledge. (Moore Depo. Doc. 224-2; Geiger Decl.
Doc. 224-3; Doc. 226 at 2 (representing that Plaintiffs have
noticed a deposition of Mike Conner, an SnS employee involved
in the ...