## Facts

- Susie J. Salter, executrix of Rufus Salter’s estate, sued The Upjohn Company alleging it inadequately tested and labeled the prescription drug Cleocin, resulting in Rufus Salter’s death.
- A jury returned a general verdict for Upjohn, and the district court entered judgment for Upjohn.
- During discovery, Salter sought to depose Upjohn’s president, Dr. William Hubbard, relying in part on a prepared statement he had previously given to a U.S. Senate committee about Cleocin.
- First attempt (January 1976): Salter noticed depositions of employees “most familiar” with Cleocin and also noticed Hubbard; the district court granted a protective order vacating Hubbard’s deposition and required Salter to depose other identified employees first, indicating Hubbard could be deposed later if needed.
- Second attempt: Salter moved to compel Hubbard’s deposition in Montgomery, Alabama; the motion did not clearly explain why Hubbard was necessary or why the deposition should occur there rather than in Kalamazoo, Michigan; the district court denied the motion.
- Third attempt: Salter again moved to compel, requesting Montgomery as the location or cost-shifting for a Kalamazoo deposition; the district court denied the motion, citing timing near or after the agreed discovery cutoff and inconvenience to Hubbard.
- On appeal, Salter challenged multiple trial rulings, but the principal issue requiring extended discussion was the refusal to permit Hubbard’s deposition.

## Issues

1. Whether the district court abused its discretion under the Federal Rules of Civil Procedure by denying Salter’s requests to depose Upjohn’s president, including rulings on sequencing, location, and cost-shifting.

## Decision

- The Fifth Circuit affirmed the judgment for Upjohn.
- The court held the district court did not abuse its discretion in managing discovery and denying the motions to compel Hubbard’s deposition.
- The initial protective order was treated as a sequencing directive, not a categorical prohibition on taking Hubbard’s deposition.
- The district court reasonably relied on the availability of other Upjohn employees with more direct knowledge of Cleocin.
- The district court acted within its discretion in considering burden, location (Michigan versus Alabama), the discovery deadline, and the lack of a specific showing of unique need for Hubbard’s testimony.

## Legal Principles

- District courts have broad discretion to control discovery, including the sequence, scope, and conditions of depositions, and appellate review is for abuse of discretion.
- An order completely barring a deposition is unusual and may be erroneous absent extraordinary circumstances, but requiring a party to pursue less burdensome discovery first can be permissible.
- Protective orders may be appropriate for high-level corporate officers when the proponent fails to show the officer has unique, personal knowledge unobtainable from other sources and the deposition would be unduly burdensome or duplicative.
- Courts may consider deposition location, inconvenience to the deponent, agreed discovery deadlines, and the timing and specificity of the requesting party’s showing when ruling on motions to compel and related cost requests.

## Conclusion

The Fifth Circuit upheld the district court’s discovery management and affirmed judgment for the manufacturer, concluding that refusing to compel the corporate president’s deposition was a permissible exercise of discretion given alternative witnesses with superior knowledge, the burden and location concerns, and the late and insufficiently justified requests.


Salter v. Upjohn Co., 593 F.2d 649 (5th Cir. 1979)