            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



SCOTT KURASHIGE, PH.D., and EMILY MA                              UNPUBLISHED
LAWSIN,                                                           October 8, 2019

              Plaintiffs-Appellees,

v                                                                 No. 344559
                                                                  Washtenaw Circuit Court
UNIVERSITY OF MICHIGAN,                                           LC No. 16-001111-CD

              Defendant-Appellant.


Before: RIORDAN, P.J., and K. F. KELLY and CAMERON, JJ.

PER CURIAM.

       In this discovery dispute, defendant-appellant, the University of Michigan (“the
University”), appeals the trial court’s order denying the University’s request for a protective
order prohibiting the deposition of then Board of Regents Chairperson Michael Behm (“Regent
Behm”).1 We affirm.

        This matter arises from plaintiffs-appellees, Scott Kurashige and Emily Lawsin, filing
suit against the University based on allegations that the University engaged in discrimination,
harassment, and retaliation in violation of the Elliott-Larsen Civil Rights Act, MCL 37.2101, et
seq., and the Michigan Persons with Disabilities Civil Rights Act, MCL 37.1101, et seq., during
the time that plaintiffs were employed by the University.

       During the course of discovery, the University filed a motion for a protective order
pursuant to MCR 2.302(C) to limit the number of depositions that plaintiffs were permitted to


1
  This Court denied the University’s emergency interlocutory application for leave to appeal.
Kurashige v Univ of Mich, unpublished order of the Court of Appeals, entered July 23, 2018
(Docket No. 344559). Subsequently, our Supreme Court, pursuant to MCR 7.305(H)(1) and in
lieu of granting leave to appeal, remanded this case to this Court for consideration as on leave
granted. Kurashige v Univ of Mich, 503 Mich 868 (2018).



                                              -1-
conduct. Relevant to this interlocutory appeal, the University contended that the apex-deposition
rule prohibited plaintiffs from deposing several high-ranking university officials, including
Regent Behm. The University argued that the trial court had to limit the amount of depositions
that plaintiffs were permitted to conduct to avoid unwarranted harassment. The University
further argued that it was plaintiffs’ burden to demonstrate that the individuals who plaintiffs
sought to depose possessed unique information that was relevant to plaintiffs’ claims. Plaintiffs
opposed the motion.

        After hearing oral arguments, the trial court denied the University’s motion for a
protective order. In doing so, the trial court stated the following from the bench:

              On the issue of depositions, I’m not limiting and telling you who you can
       or cannot depose. You depose who you want, and you depose who you want, and
       I recognize that’s going to take some time.

        In response to the trial court’s ruling, the University filed a limited motion for
reconsideration and argued that the trial court failed to apply the apex-deposition rule when
ruling on the University’s motion for a protective order in relation to Regent Behm. More
specifically, the University argued, in relevant part, the following:

               2. [The University] is not seeking reconsideration of the Court’s order
       overall and is accepting the ruling that Plaintiff[s] can take over 30 depositions.
       [The University] is seeking reconsideration regarding only one witness: Chair of
       the University of Michigan Board of Regents, Michael Behm.

               3. Board Chair Behm does not have any unique personal knowledge
       regarding relevant issues in this case that cannot be obtained from lower-ranking
       officials and from documents previously produced (including policies).

               4. Much of the information Plaintiffs seek from Board Chair Behm is
       outside the scope of this case as defined by this Court’s May 1, 2017 Order.2

              5. Legal precedent holds that a high-ranking official such as the Chair of
       the Board should not be subjected to deposition in these circumstances.

The trial court denied the University’s motion for reconsideration without explanation. The
instant appeal followed.

       This Court reviews for an abuse of discretion a trial court’s decision to grant or deny a
motion for a protective order. Dep’t of Health and Human Servs v Genesee Circuit Judge, 318
Mich App 395, 407; 899 NW2d 57 (2016). “An abuse of discretion occurs when the decision



2
 In the May 1, 2017 Order, the trial court ruled that plaintiffs’ claims “must be limited to events
pertaining specifically to one or both [p]laintiffs which occurred on or after December 5, 2013.”



                                                -2-
falls outside the range of reasonable and principled outcomes.” McQueer v Perfect Fence Co,
502 Mich 276, 296; 917 NW2d 584 (2018).

        “Michigan has a broad discovery policy that permits the discovery of any matter that is
not privileged and that is relevant to the pending case.” Arabo v Mich Gaming Control Bd, 310
Mich App 370, 398; 872 NW2d 223 (2015) (quotation marks and citation omitted). However,
where warranted, that broad discovery policy is not without reasonable limits. Id. In this case,
the University sought a protective order precluding Regent Behm’s deposition pursuant to MCR
2.302(C). MCR 2.302(C) provides, in relevant part, the following:

       [o]n motion by a party or by the person from whom discovery is sought, and on
       reasonable notice and for good cause shown, the court in which the action is
       pending may issue any order that justice requires to protect a party or person from
       annoyance, embarrassment, oppression, or undue burden or expense . . . .
       [Emphasis added.]

Thus, “[t]he movant must demonstrate good cause for the issuance of a protective order.” Arabo,
310 Mich App at 398.

        In this case, the University argues that good cause existed for the trial court to issue a
protective order because Regent Behm’s deposition is precluded by the proper application of the
apex-deposition rule. In Alberto v Toyota Motor Corp, 289 Mich App 328, 339-340; 796 NW2d
490 (2010), this Court explained the rational for adopting the apex-deposition rule:

       [A]n apex corporate officer, like a high-ranking governmental official, often has
       no particularized or specialized knowledge of the day-to-day operations or the
       particular factual situations that lead to litigation, and has far-reaching and
       comprehensive employment duties that require a significant time commitment.
       And, therefore, to allow depositions of high-ranking governmental officials or
       corporate officers without any restriction or conditions could result in the abuse of
       the discovery process and harassment of the parties.

        A corporate official, or the corporate entity on the official’s behalf, invokes the protection
of the apex-deposition rule by filing a motion for protection accompanied by an “affidavit or
other testimony” of the official to support that the official “lacks personal knowledge or unique
or superior information relevant to the claims in issue[.]” Id. at 336-339. Once the corporate
official or the corporate entity moves for protection and provides a sufficient affidavit or
testimony, the burden shifts to the party seeking the deposition to demonstrate that the official
“has unique or superior knowledge of issues relevant to the litigation and that the information
cannot be obtained by less intrusive means, such as by deposing lower-level officials or
employees.” Id. at 339.

        In this case, the University sought to invoke the protection of the apex-deposition rule by
filing a motion for a protective order. However, the motion was not accompanied by an affidavit




                                                 -3-
or other testimony from Regent Behm to support that he lacked personal knowledge or unique or
superior information that was relevant to plaintiffs’ claims.3 Thus, the University—as the party
opposing the deposition—failed to meet the initial burden outlined in Alberto, and plaintiffs were
therefore not required to show that Regent Behm possesses “unique or superior knowledge of
issues relevant to the litigation and that the information cannot be obtained by less intrusive
means” in order to procure Regent Behm’s deposition. See Alberto, 289 Mich App at 339.
Although the University provides various explanations on appeal as to why Regent Behm does
not have information relevant to this litigation, we cannot accept counsel’s mere representations
concerning the extent of Regent Behm’s personal knowledge. See e.g., In re Marx’s Estate, 201
Mich 504, 507; 167 NW 976 (1918) (“[I]t is not one of the functions of counsel to enlarge the
record by voluntary and unsupported statements of fact in the brief, statements setting up facts
which have been testified to by no witnesses, nor properly inferable from those established.”).

       In sum, the University failed to offer the requisite proof to demonstrate that Regent Behm
was entitled to the protection of the apex-deposition rule. Because the University did not present
the required evidence before the trial court to establish the good cause necessary for the issuance
of a protective order under MCR 2.302(C), the trial court’s decision to deny the University’s
motion for a protective order did not fall outside the range of reasonable and principled
outcomes. See McQueer, 502 Mich at 296.4 Although the trial court appears to have not applied
the necessary standard set forth in Alberto, we will nevertheless uphold the ruling because the


3
  The University did not provide an affidavit or other testimony from Regent Behm when it filed
its limited motion for reconsideration.
4
  We note that the University argues that the trial court erred by failing to read the contents of its
motion for a protective order before ruling on the motion. However, in so arguing, the
University does not provide authority or explain or rationalize the arguments. As a result, the
argument is abandoned. See Houghton ex rel Johnson v Keller, 256 Mich App 336, 339; 662
NW2d 854 (2003) (“An appellant may not merely announce his position and leave it to this
Court to discover and rationalize the basis for [appellant’s] claims, nor may [appellant] give
issues cursory treatment with little or no citation of supporting authority.”) (citations omitted).
In any event, we find no factual support for the University’s argument. Review of the relevant
transcript establishes that the trial court heard oral arguments on the University’s motion for a
protective order at the same time that the court heard oral arguments in relation to plaintiffs’
motion to compel and plaintiffs’ motion for leave to file a third amended complaint. At the
beginning of oral arguments, the trial court indicated that the court did not read “every one of
those pages. . . .” The context in which this statement was made suggests that the trial court did
not read the entirety of plaintiffs’ motion to compel, which included a multitude of exhibits.
Further, even if the trial court did not read the University’s motion for a protective order before
the hearing, the trial court specifically asked counsel to “distill” “the key points” raised in the
motions and then provided the parties with ample time to make arguments. The University made
use of this opportunity by making arguments concerning the apex-deposition rule. Thus, because
the University was provided with the opportunity to make oral arguments in relation to the apex-
deposition rule before the trial court rendered its ruling, the trial court was clearly aware of the
University’s arguments.


                                                 -4-
trial court reached the right result. See Gleason v Mich Dep’t of Transp, 256 Mich App 1, 3; 662
NW2d 822 (2003).

       Affirmed.



                                                           /s/ Michael J. Riordan
                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Thomas C. Cameron




                                              -5-
