Dov Kesselman and Brian Murphy Published in the New York Law Journal
"The Sword and Shield: Protective Orders Guard Against Unwarranted Depositions of Executives"

Dov Kesselman and Brian Murphy’s article, "The Sword and Shield: Protective Orders Guard Against Unwarranted Depositions of Executives," was published in the September 18, 2008 issue of the New York Law Journal. In their article, Dov and Brian discuss the significant burden and distraction imposed by the threat of an overzealous plaintiff's counsel who seeks depositions of their CEOs or senior executives. They recommend that "while senior executives are in no way immunized from deposition by virtue of their positions, companies should aggressively respond to inappropriate deposition demands by seeking a protective order pursuant to Rule 26 (c) of the Federal Rules." The authors explain the various factors that the U.S. Court of Appeals for the Second Circuit closely consider when deciding whether the burden or expense of the proposed discovery outweighs its likely benefit. 

As they conclude, "the courts in the Second Circuit, while carefully ensuring the broad discovery provided for by the Federal Rules of Civil Procedure, are well aware of the burden that improperly motivated depositions can impose and will readily issue protection orders where appropriate. Companies can and should respond to inappropriate depositions by first seeking to convince the opposing counsel of the impropriety of the request, and if agreement cannot be reached, immediately seeking a protective order."