Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Ill.: Deposition of John Deere's CFO to proceed in ‘right to repair’ litigation, (May 20, 2025)

By Kenneth H. Ryesky, M.B.A., J.D.

Judge cites his own article on apex witness doctrine, written a decade ago before he was elevated from magistrate judge to federal district judge.

The federal district court in Rockford, Illinois has denied Deere & Company's motion for a protective order to bar the deposition of its CFO/Senior Vice President. The motion was grounded totally in "apex witness doctrine" arguments. The court analyzed the yet-undeveloped legal standards for applying the doctrine, and applied them to the case. Weighing the relevant factors, the court found that the circumstances did not warrant the implementation of the doctrine, and ordered the parties "to make mutually agreeable arrangements" to conduct the deposition at some time after the executive has concluded his current high-priority meetings with other company executives (In Re: Deere & Company Repair Services Antitrust Litigation, No. 3:22-cv-50188 (N.D. Ill. May. 19, 2025)).

Background. Computer-like electronic control units (ECUs) are integral components of various mechanical machinery items. Repairs of such machinery often require adjustments to their ECUs. Tractors and other farm equipment are among the lines of machinery that have become heavily dependent upon the sound functioning of their ECUs. Repair of a device such as a tractor or harvester now has both hardware and software aspects.

In 2022, several so-called "right to repair lawsuits" alleging Sherman Act violations were filed against farm equipment manufacturer Deere & Company (Deere), alleging that Deere restricts access by farmers and independent repair providers (IRPs) to the software necessary to repair its products, thereby monopolizing its repair services by compelling the farmers and IRPs to go through Deere's network of authorized dealers in order to make repairs Six of these cases were consolidated in the Northern District of Illinois for multi-district litigation.

On February 13, 2023, the Department of Justice Antitrust Division filed a Statement of Interest in the MDL. On January 2015, the FTC, joined by the attorneys general of Illinois and Minnesota, filed a separate lawsuit alleging violations of the Sherman Act, the FTC Act, and state antitrust statutes. The attorneys general of Arizona, Michigan, and Wisconsin joined in as plaintiffs the next month. Right to repair legislation has been enacted in various states, and is pending in others.

Deere seeks to depose Joshua Jepsen, Deere's Senior Vice President and CFO. Deer moved for a protective order to prevent the deposition from occurring, asserting the so-called "apex witness doctrine" by arguing that "that Mr. Jepsen shouldn’t be deposed because he recently prepared an earnings report … and is presently meeting with Deere’s executive suite."

Apex witness doctrine. The apex witness doctrine, "more of a legal theory than a formal 'doctrine,'" posits that (1) the information sought from high echelon organizational officers often can be obtained from employees of lesser position who are not as preoccupied with weighty managerial matters; and (2) there is a danger that inconveniencing higher ranked officers to sit for depositions can be abusively used to induce reluctant settlements of nuisance cases.

The legal standards regarding apex witnesses are "somewhat indeterminate." Sifting through case law of the district and scholarly writings (including one of the judge's own), the court applied a three-prong test. The first prong is whether the executive possesses "unique personal knowledge" on the matter in dispute; if not, then a protective order is warranted without further inquiry by the court. If the executive does have unique personal knowledge of the matter, the court goes to the second prong, whether "less intrusive discovery methods" can suffice to obtain the information. If so, then the court can order such discovery in lieu of deposing the higher situated officer. If less intrusive discovery would not be practicable, the court then weighs whether "the deposition unduly interferes with the officer's professional duties."

Application of the apex witness factors. The court denied Deere's motion for a protective order after applying the three-prong test. The judge first found that Mr. Jepsen has unique personal knowledge beyond what has heretofore emerged from discovery. Although Deere has not made internal performance or profitability projections regarding right to repair legislation, "Mr. Jepsen uniquely understands the company’s internal assessments and what it would consider to generate such" projections and reports.

The court then considered the second and third prongs. Here, less intrusive discovery methods have already been tried, and witnesses from lower levels of the Deere's organizational chart have testified at deposition that they do not have personal knowledge of the financial projections sought by the plaintiffs.

Moreover, Mr. Jepsen's temporary preoccupation with other Deere executives does not suffice to excuse him from sitting for the deposition in light of the relevance of his testimony and his unique knowledge of the matters, especially since his testimony would likely not be duplicative.

The Case is No. 3:22-cv-50188.

Judge: Johnston, I.

Attorneys: Alexander E. Barnett (DiCello Levitt LLP) for Forest River Farms. Bret Koch Pufahl (Foote, Mielke, Chavez & O'Neil, LLC) for Plum Ridge Farms, Ltd. Joseph M. Lyon (The Lyon Firm, P.C.) for Daniel Brown. Alexandra M. Ortiz Hadley (Butler Snow LLP) for Deere & Co.

Companies: Forest River Farms; Plum Ridge Farms, Ltd.; Deere & Co.

Cases: Antitrust IllinoisNews