Justices create new framework for determining if good cause exists to limit, prohibit high-level depositions

A trial court must revisit the question of whether three of the Indianapolis-based NCAA’s highest-ranking executives have to sit for depositions in a concussion lawsuit after the Indiana Supreme Court established a new framework for examining requests to limit depositions.

Addressing two issues of first impression, the justices established a legal framework harmonizing the apex doctrine’s underlying principles with Indiana’s applicable trial rules.

The case involves the NCAA’s efforts to prevent key executives — President Mark Emmert, Chief Legal Officer/Chief Operating Officer Donald Remy and Chief Medical Officer Dr. Brian Hainline — from facing depositions conducted by attorneys representing three deceased former college football players.

The litigation centers on Neal Anderson, who played at the University of Illinois from 1960-1964; Andrew Solonoski Jr., a North Carolina State University player from 1966-1970; and Cullen Finnerty, who died at 30 after playing at the University of Toledo and Grand Valley State University from 2001-2006.

Representatives for each claimed they suffered chronic traumatic encephalopathy, or CTE, and asserted claims including negligence and fraudulent concealment against the NCAA. Those claims were consolidated in Marion Superior Court, and the plaintiffs sought to depose Emmert, Remy and Hainline.

The NCAA responded with a motion for a protective order to quash the subpoenas, relying partly on the apex doctrine, which shields high-level executives from depositions unless the executive “possesses unique or personal knowledge relevant to the issues being litigated” and has information that “cannot be obtained through a less intrusive discovery method.”

The trial court issued an order restricting the topics of Emmert and Remy’s depositions but not Hainline’s. The NCAA moved to certify the order for interlocutory appeal, but that motion was deemed denied when the trial court had not ruled within 30 days.

The trial court belatedly granted the motion for certification a few weeks later, but the NCAA did not ask the Court of Appeals of Indiana to accept jurisdiction because it believed it was time-barred.

The NCAA then filed a second protective order or, alternatively, asked the trial court to certify its decision for interlocutory appeal.

The trial court did the latter, and a split Court of Appeals of Indiana ruled in 2021 that the NCAA’s time for seeking an interlocutory appeal had long-since passed. The majority held that 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.

COA Judge Elizabeth Tavitas dissented, arguing that she would address the NCAA’s interlocutory appeal “even if the second motion for a protective order was repetitive under Trial Rule 53.4(A).”

The Supreme Court granted transfer, addressing two issues of first impression in a Tuesday opinion.

First, the justices determined that a trial court’s order on a repetitive motion or a motion to reconsider is an “other interlocutory order” under Indiana Appellate Rule 14(B). As a result, the NCAA’s appeal was properly before the high court.

“A discretionary interlocutory appeal is proper so long as the party timely and successfully moves (1) the trial court to certify the order and (2) the Court of Appeals to accept jurisdiction over the appeal,” Chief Justice Loretta Rush wrote. The court determined that although the NCAA did not clear both hurdles for an appeal of the order denying its first motion for a protective order, it did clear them for an appeal of the order denying its second motion.

The justices ultimately declined to adopt the apex doctrine, but instead established a legal framework that harmonizes its underlying principles with Indiana’s existing trial rules — more specifically, a legal framework for determining whether good cause exists to limit or prohibit the deposition of a high-ranking official.

“When a party seeks to limit or prohibit the deposition of a high-ranking official, our trial courts should use this framework to determine whether good cause exists for issuing a protective order,” Rush wrote, later encouraging trial courts “to issue findings and conclusions when rendering their decisions.”

First, the Supreme Court concluded that courts must determine whether the deponent qualifies as an apex official before relying on that status in deciding whether good cause exists. If the trial court finds good cause and the party seeking the deposition did not file a responsive motion, the justices concluded that the court should issue a protective order either prohibiting the deposition or otherwise limiting it under Trial Rule 26(C).

“But when the requesting party submits a responsive motion, the trial court must determine whether either the executive’s apex status or the good cause showing has been negated or rebutted,” Rush wrote.

The court noted that whether the motion negates or rebuts the basis for a protective order will dictate how a trial court should proceed.

“When confronted with a responsive motion that rebuts — rather than negates — the apex official’s good cause showing, the court must use its discretionary authority to balance the parties’ needs and impose a protective order that (1) restricts the topical scope of the deposition or (2) requires the exhaustion of less intrusive discovery methods,” Rush wrote.

“Less intrusive methods may include deposing lower-level employees, deposing a corporate designee, or submitting to the corporation interrogatories and requests for production of documents,” she continued. “If the party seeking the deposition exhausts alternative methods to no avail, the court should modify the protective order upon the party establishing a specific, outstanding need for the deposition.”

The justices observed that the trial court in the case at hand did not have the benefit of such a framework when it denied the NCAA’s second motion for a protective order.

“Further, in that second order — the appealed order before us — the court summarily denied the NCAA’s motion, leaving us unable to determine whether its reasoning comported with our guidance,” Rush concluded. “We therefore remand to the trial court to evaluate the NCAA’s motion in light of our guidance and encourage it to enter findings and conclusions supporting its decision.”

The case is National Collegiate Athletic Association v. Jennifer Finnerty, et al., 21S-CT-409.

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