ChemImage Corporation v. Johnson & Johnson

Background

ChemImage sought to depose Ashley McEvoy, Johnson & Johnson’s former Executive Vice President and Worldwide Chair of MedTech. Defendants moved under Federal Rule of Civil Procedure 26(c) for a protective order preventing the deposition.

Defendants argued that McEvoy was a high-level executive who had no firsthand involvement in Ethicon’s project with ChemImage and no unique knowledge about whether Ethicon properly terminated the contract for cause after ChemImage failed to meet an early-stage milestone. They said McEvoy did not negotiate the agreement, oversee the project, or participate in the decision to terminate it.

Defendants also argued that the documents produced in the case showed only limited involvement by McEvoy. According to the motion, she received one email during the contract negotiations, roughly a dozen high-level updates after the agreement was signed, and sent one brief email responding to an update. Defendants pointed to other witnesses and planned corporate-representative depositions as less burdensome ways for ChemImage to obtain relevant information.

Legal standard and ruling

The court applied the rule that a senior executive generally should not be deposed unless the executive has unique evidence or personal knowledge of the claims and the information cannot be obtained from other witnesses or through less burdensome means.

The court agreed with Defendants that Ashley McEvoy lacked “unique or personal knowledge of the claims at issue.” Judge Furman therefore granted Defendants’ letter motion substantially for the reasons stated in the motion. The Clerk of Court was directed to terminate the motion.