LA County Fire Chief To Be Deposed Despite Apex Status

A US Magistrate judge has ruled that Los Angeles County Fire Chief Daryl Osby will have to appear for an “apex” deposition in a lawsuit over photo-taking at the scene of the Kobe Bryant helicopter crash last year. If the term “apex” deposition sounds unusual, it is. Read on.

Vanessa Bryant filed suit against the county alleging emergency responders took and shared grisly photos from the crash scene, causing her and her family emotional distress. The suit is one of five filed against LA County Fire over the crash scene photos.

As part of the lawsuit, Bryant’s attorneys sought to depose Chief Osby and Los Angeles County Sheriff Alex Villanueva. The county resisted the request, contending that the deposition of department heads in a case such as this are inappropriate and unnecessary.

Depositions of the heads of organizations such as fire departments or sheriff’s offices are referred to as “apex” depositions. As explained in the ruling issued by Magistrate Charles F. Eick:

  • Parties generally are entitled to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”
  • However, an “apex” deposition, i.e., “[t]he deposition of a high-level official or executive” “creates tremendous potential for abuse and harassment; and therefore, courts have the discretion to limit such discovery.”
  • Courts exercise this discretion with such frequency that the “[h]eads of government agencies are not normally subject to deposition.”
  • “[T]here is a public policy interest in ensuring that high level government officials are permitted to perform their official tasks without disruption or diversion”.
  • “In determining whether to allow an apex deposition, courts consider (1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods.”
  • When “the official is removed from the daily subjects of the litigation, and has no unique personal knowledge of the facts at issue, a deposition is improper.”
  • Under the extraordinary circumstances of the present case, the assertedly “apex” depositions sought are appropriate.
  • On the present record, it appears that: (1) both Sheriff Villanueva and Fire Chief Osby have “unique first-hand, non-repetitive knowledge” relevant to the issues in this case; (2) such knowledge is not entirely obtainable through the exhaustive discovery from other sources which has been and will be taken in this case; and (3) other, less intrusive methods of discovery would not adequately substitute for the depositions sought.
  • It further appears that Plaintiffs’ purpose in seeking these depositions is neither abusive nor harassing.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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