FILED
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`4/28/2025 7:32 PM
`FELICIA PITRE
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`DISTRICT CLERK
`DALLAS CO., TEXAS
`Margaret Thomas DEPUTY
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`CAUSE NO. DC-24-18864
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`Perimeter International, Inc., IN THE DISTRICT COURT
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`Plaintiff,
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`v. 14TH JUDICIAL DISTRICT
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`Todd Owen and ICAT Logistics, Inc.,
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`Defendants. DALLAS COUNTY, TEXAS
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`Qn LP LP Wr “Orn Lr “Or “Or “Or?
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`PLAINTIFF PERIMETER’S MOTION TO COMPEL THE DEPOSITION OF BRAD
`STOGNER, AND RESPONSE TO DEFENDANT ICAT’S MOTION TO QUASH
`STOGNER’S DEPOSITION AND FOR PROTECTION
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`Perimeter served Defendant ICAT with a notice to take the deposition of Brad Stogner,
`ICAT’s Chief Executive Officer. ICAT moved to quash the deposition, arguing that Stogner “does
`not possess any personal knowledge of relevant material issues in this case” and his deposition
`would be “unreasonably cumulative” as any knowledge Stogner has “is obtainable from other
`sources that are more convenient” and “less burdensome and disruptive to ICAT’s business
`operations.” ICAT’s position is meritless.
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`Perimeter was forced to file this lawsuit to stop ICAT and Defendant Todd Owen, who
`served as Perimeter’s head of aviation sales for more than a decade, from executing a scheme to
`exploit Perimeter’s confidential business information and trade secrets to solicit and divert
`Perimeter’s customers and prospective customers. In its motion to quash, ICAT tells the Court that
`Perimeter’s lost profits attributable to ICAT’s misconduct are relatively minimal, and Perimeter
`does not dispute that, at least at present. But lost profits are only one of the categories of damages
`sought by Perimeter, and the limited lost profits are only because Perimeter was able to act quickly
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`and efficiently to obtain an agreed injunction against ICAT and Owen very soon after they began
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`to execute their plan. However, ICAT and Owen did not make it easy to obtain such relief—trather,
`Perimeter was forced to incur significant attorney’s fees and expenses to obtain the injunctive relief
`to immediately halt ICAT’s misconduct. ICAT’s motion overlooks that Perimeter is rightfully
`entitled to recover those fees and expenses from ICAT because its misappropriation of Perimeter’s
`trade secrets was “willful and malicious.”!
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`As illustrated by the following undisputed facts Perimeter has gathered thus far, Stogner’s
`deposition is undeniably essential to, among other things, Perimeter’s ability to demonstrate ICAT
`conspired with Owen to unlawfully take Perimeter’s trade secrets and other confidential
`information and solicit Perimeter’s customers, prospective customers, goodwill, and employees in
`violation of Owen’s commitments to Perimeter, and that ICAT did so intentionally, willfully, and
`maliciously with full knowledge of Owen’s contractual obligations to Perimeter:
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`1. Stogner is the co-architect of the illegal scheme. In late August 2024, Stogner had
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`lunch with Owen, who was Perimeter’s VP of Aviation and Aerospace at that time.
`Stogner was recruiting Owen to join ICAT. During this interview, only Owen and
`Stogner attended. Immediately after the lunch, Owen texted Stogner instructing him
`to hire Dan Burgen, Owen’s confidant and friend, stating Burgan is “solid and can run
`cover and keep me out of target range.” Stogner responded, “I like the plan!,”’ thus
`hatching ICAT and Owen’s plan to misappropriate and exploit Perimeter’s trade secrets
`and confidential information for ICAT’s benefit. ICAT formally hired Stogner as its
`CEO on September 10" and, shortly thereafter, Stogner hired both Owen and Burgan.
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`Owen reported directly to Stogner to carry out the plan. ICAT’s corporate representative
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`| See TEX. Civ. PRAC. & REM. CODE. ANN. § 134A.005(3).
`? See Exhibit 1, a true excerpted copy of texts between Stogner and Owen (quote cleaned up).
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`3 Id.
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`testified that Stogner, and only Stogner, would be able to shed light on the
`communications and events surrounding Owen’s and Burgan’s recruitment and
`execution of the plan.
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`2. Furthermore, it is undisputed that Stogner’s relationship with Owen did not begin in
`August 2024. Rather, in 2023 and before Stogner joined ICAT, Stogner attempted to
`hire Owen while working for a different third-party logistics company, Omni Logistics.
`Stogner was, at the time, Omni Logistics’ chief sales executive. Discovery indicates
`that Stogner received a copy of Owen’s Perimeter agreement, including the restrictive
`covenants at issue in this lawsuit, and ultimately decided not to hire Owen due to those
`restrictions.* In this suit, ICAT attests that it and Stogner had no specific knowledge of
`those restrictions until long after Stogner’s August 27th recruitment of Owen and after
`Owen became employed by ICAT. Only Stogner can iron out these discrepancies. Only
`he can tell Perimeter whether he did indeed receive, and have knowledge of, Owen’s
`restrictive covenants when he (acting as ICAT’s CEO) colluded with Owen to hire
`Burgan to “run cover and keep [Owen] out of target range.”
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`3. To defend ICAT’s misconduct, Stogner attests that “any purported restrictions on
`Owen’s right to work for a competitor of Perimeter were unenforceable” and, in any
`event, he “did not receive a copy of Owen’s agreement with Perimeter until October
`12, 2024.” And, when asked about why Stogner held this belief, ICAT’s corporate
`representative testified that the only person who could answer that question was,
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`unsurprisingly, Stogner himself. And, of course, understanding ICAT’s contentions
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`4 See Exhibit 2, a true excerpted copy of Owen’s texts with Omni VP Dave Hall.
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`5 See Exhibit 3, a true excerpted copy of ICAT’s amended answer to Request No. 2 of Perimeter’s First Set of
`Interrogatories, served by ICAT on March 17, 2025.
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`about why Stogner believed Owen’s restrictions were unenforceable (and specifically
`which of those several restrictions he was referring to) is central to Perimeter’s ability
`to prove that ICAT’s misappropriation of Perimeter’s trade secrets was “willful and
`malicious.”
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`4. Finally, Stogner is one of only three individuals identified by ICAT in its Rule 192.4
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`initial disclosures as a person having knowledge of relevant facts.° The other two are
`Stogner’s partner-in-crime, Owen, and Owen’s confidante, Burgan, who Stogner hired
`for ICAT to “run cover and keep [Owen] out of target range.” Stogner’s direct and
`unique personal knowledge to the central facts and issues in this case (and why he is
`one of only three identified in ICAT’s initial disclosures), is further highlighted by the
`fact he verified ICAT’s interrogatory answers and that ICAT’s corporate representative
`readily admits that Stogner is the only individual who is able to testify about Stogner’s
`communications and actions —information that Perimeter needs to prove its case.
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`At base, ICAT is actively obstructing and abusing the fundamental principles of discovery
`by refusing to produce Stogner for deposition. And ICAT’s conduct is simply indefensible. ICAT
`originally designated Stogner as its corporate representative in November 2024.’ But four days
`before the corporate representative deposition, ICAT abruptly switched course, choosing instead
`to designate its brand new Chief Financial Officer, Christine Mulkay, who was hired after Owen’s
`termination by ICAT and was in no way involved in the underlying facts and events relevant to
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`this case. Perimeter took Ms. Mulkay’s deposition and learned what minimal information she
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`© See Exhibit 4, a true excerpted copy of ICAT’s Rule 194.2 Initial Disclosures, dated January 19, 2025.
`T See Exhibit 5, a true copy of O’Brien’s November 13, 2024 email to Eash.
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`could provide. She directed PGL to Stogner himself to obtain specific information about his
`particular actions and communications.
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`After learning that Stogner no longer would be ICAT’s corporate representative, Perimeter
`requested dates for Stogner’s individual deposition. ICAT initially agreed to furnish Perimeter
`with dates for Perimeter to depose Stogner.’ ICAT, however, did not keep its word. Perimeter
`provided ICAT with at least six proposed dates to take Stogner’s deposition. ICAT provided
`Perimeter with none, forcing Perimeter to notice the deposition unilaterally. ICAT moved to quash
`the deposition for the first time, taking the position that Stogner “does not have personal, unique,
`or superior knowledge of facts relevant to Perimeter’s claims against Owen and ICAT.””" But, as
`illustrated above, Stogner’s attestation is not true.
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`Ultimately, ICAT has forced Perimeter to again involve the Court in what should have been
`a routine discovery scheduling matter. This is now the second time that ICAT has engaged in a
`frivolous discovery dispute to avoid a deposition. It is a waste of the Parties’ and the Court’s time
`and resources. Perimeter respectfully asks the Court to put a stop to ICAT’s games and compel
`the deposition of Stogner and deny ICAT’s motion to quash. Further, although Perimeter is loath
`to do so, Perimeter believes it must respectfully request that the Court award it the attorney’s fees
`and expenses it has incurred in bringing this motion to compel. Perimeter has been forced to spend
`an extraordinary amount of time and resources obtaining the most basic, and quintessentially
`discoverable information from ICAT, demonstrating that ICAT is taking wholly indefensible
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`positions in discovery.
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`8 See ICAT Mot. at Ex. A-4.
`° See ICAT’s Am. Mot. at Stogner Decl., 98.
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`10 Stogner makes no representations about his personal knowledge of facts relevant to ICAT’s defenses.
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`Il.
`Brief Factual and Procedural Background
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`This is a case about Owen and ICAT’s plan to steal Perimeter’s trade secrets, confidential
`business information, customer goodwill, and customers. That plan was hatched in August 2024
`— while Owen was employed by Perimeter and before ICAT formally hired Stogner. Stogner and
`Owen met for lunch on August 27" and just a few hours after the lunch ended Owen texted Stogner,
`instructing him that ICAT needed to hire Owen’s old friend and confident, Dan Burgan, to “run
`cover and keep [Owen] out of target range” due to Owen’s contractual obligations to Perimeter.
`Stogner replied, “I like the plan!"
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`Within weeks after that meeting, Stogner was officially ICAT’s CEO, and Owen and
`Burgan had accepted offers to join ICAT’s sales team, despite the fact that Owen was still, at that
`time, employed by Perimeter. Owen reported directly to Stogner while he was employed by
`ICAT, and Burgan, in turn, reported to Owen. As the three formalized their employment with
`ICAT, the undisputed evidence shows they were actively executing their plan to use Burgan as a
`cover to solicit and divert to ICAT a number of customers serviced by Owen at Perimeter.
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`When Perimeter learned from one of its customers that Owen might be working for a new
`company while still employed by Perimeter, Perimeter took swift action. Perimeter filed this
`action on October 25, 2024. Three days later, the Court entered a TRO and authorized expedited
`discovery. Perimeter promptly took Owen’s deposition. Perimeter also noticed ICAT’s deposition
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`for December 6, 2024. ICAT designated Stogner as ICAT’s corporate representative.'* Ultimately,
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`1] See Exhibit 1.
`12 See Exhibit 5.
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`the December deposition did not occur because ICAT and Owen signed an agreed temporary
`injunction in December 2024.
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`As the focus of discovery shifted from expedited interim relief to the merits, Perimeter
`asked ICAT for new dates to take ICAT’s deposition. ICAT refused to provide dates, forcing the
`parties to bring their first discovery dispute before the Court. The Court compelled ICAT to make
`its corporate representative available on March 21, 2025.° In doing so, the Court expressed
`extreme displeasure for having to address a discovery dispute that should not have necessitated the
`Court’s involvement.
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`Four days before the March 21st deposition of ICAT’s corporate representative, ICAT
`surprisingly changed course, notifying Perimeter that Stogner would no longer be its corporate
`representative. ICAT instead designated Christine Mulkay, its new CFO who had been with ICAT
`for only three months and knew nothing about the facts and events pertinent to this case. Perimeter
`took ICAT’s deposition, as scheduled.
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`On the same day that Perimeter learned that Stogner no longer would be ICAT’s corporate
`representative, March 17th, Perimeter asked that ICAT provide dates for Stogner’s deposition
`given his unique personal knowledge of the facts and circumstances relevant to this case.4 This
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`request and several others went unanswered and ignored by ICAT.'® ICAT later agreed to provide
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`13 See Order denying ICAT’s motion to quash deposition, dated January 27, 2025.
`14 See ICAT Mot. at Ex. A-2.
`15 See ICAT Mot. at Ex. A-3.
`ICAT’s motion omits Perimeter’s e-mail on March 19" at 5:54 p.m. (“Hi John. This is our third request for ICAT to
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`confirm the date when Perimeter can take Mr. Stogner’s deposition ... ICAT has not responded...”). A true copy is
`attached as Exhibit 6.
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`dates, but never actually did so, yet again ignoring Perimeter’s repeated requests.'© !’ It was not
`until more than two weeks after Perimeter first asked for Stogner’s deposition that ICAT took the
`position Stogner was immune from deposition under the apex doctrine.'* ICAT’s delay tactics and
`discovery gamesmanship were on full display during this process.
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`To avoid unnecessary motion practice and address ICAT’s contention that there might be
`undue burden and expense associated with Stogner’s deposition, Perimeter was receptive to trying
`to find an accommodation that might work for both Parties.'? Even after ICAT filed its motion to
`quash, Perimeter offered to limit Stogner’s deposition to five (5) hours and to provide ICAT
`with the deposition topics at least a week before the deposition.” Perimeter’s offer went
`unanswered, thus necessitating this motion and the Court’s involvement.
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`In all, Perimeter has furnished ICAT with at least 10 different dates to take Stogner’s
`deposition and has offered to limit its duration to five hours and provide the topics in advance.
`ICAT, in turn, has provided no dates despite initially promising it would. The non-expert discovery
`deadline is July 8, 2025. This case is set for a non-jury trial on October 21, 2025.
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`Il.
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`The Court Should Grant this Motion and Enter an Order Setting the Date of
`Stogner’s Deposition
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`16 See ICAT Mot. at Ex. A-4.
`17 See ICAT Mot. at Exs. A-5, A-6, A-7, A-8, and A-10.
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`ICAT’s motion omits Perimeter’s e-mail on March 25" at 2:51 p.m. (“Hi John. Perimeter has made six attempts
`now. ICAT has failed to furnish a single date for Mr. Stogner’s deposition. ...”). A true copy is attached as Exhibit
`7.
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`18 See ICAT Mot. at Ex. A-11.
`19 See Exhibit 8, a true copy of Lynch’s email to Eash, April 11, 2025 at 2:11 pm.
`20 See Exhibit 9, a true copy of Hersh’s email to Lynch, April 14, 2025 at 10:26 am (emphasis original).
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`The purpose of discovery is to seek the truth, thus allowing disputes to be decided by what
`the facts reveal and not by what facts are concealed. Axelson, Inc. v. Mcllhany, 798 S.W.2d 550,
`555 (Tex. 1990). The rules permit discovery into any matter not privileged that is relevant to the
`subject matter and reasonably calculated to lead to the discovery of admissible evidence. Jd. at
`553; see also TEX. R. CIV. P. 192.3(a). Parties are entitled to obtain the fullest knowledge of
`facts and issues prior to trial. Axelson, 798 S.W.2d at 555 (citing Gutierrez v. Dallas Indep. School
`Dist., 729 S.W.2d 691, 693 (Tex. 1987)). The rules do not dictate the sequence or order in which
`discovery must be conducted. See TEX. R. CIV. P. 192.2(b).
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`Perimeter needs Stogner’s deposition. As ICAT’s corporate representative readily
`admitted, Stogner possesses first-hand, personal knowledge of events relevant to this action.
`More specifically, he is one of the two primary bad actors, and many of his personal actions,
`impressions, and communications are central to Perimeter’s claims and ICAT’s defenses:
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`e Stogner is the only ICAT witness with personal knowledge of his communications
`with Owen about “the plan” in August 2024.
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`e Stogner is the only individual capable of testifying about his awareness of Owen’s
`contractual obligations to Perimeter when Owen and he hatched “the plan.”
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`e Stogner is the only individual who can testify as to why he averred in ICAT’s
`interrogatory responses that he believed Owen’s contractual restrictions were
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`unenforceable.
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`e Stogner is one of only three people identified in ICAT’s initial disclosures that
`ICAT admits have knowledge relevant to this case.
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`ICAT’s interrogatory answers state that Stogner believed that “any purported restrictions
`on Owen’s right to work for a competitor of Perimeter were unenforceable” and, in any event, he
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`“did not receive a copy of Owen’s agreement with Perimeter until October 12, 2024.’?! Stogner
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`21 See Exhibit 3.
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`verified these answers.” But the facts uncovered thus far tell a very different story.
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`In 2023, Stogner worked for a third-party logistics company named Omni Logistics.”
`Omni extended a written employment offer to Owen in January 2023, but ultimately did not hire
`him.** Omni’s records do not reflect the reason, but other text message communications from the
`time indicate that Stogner did not hire Owen because of concerns surrounding Owen’s restrictive
`non-solicit covenants—the very covenants at issue in this lawsuit.> During discovery in this suit,
`Perimeter has learned that, in September 2023, Omni Vice President Dave Hall texted Owen,
`“Dude you coming over [to Omni] or that non-compete killing the deal?” Owen responded, “No
`waiting on Brad [Stogner]...”° Stogner is the only witness in this case who has personal knowledge
`about his access to and assessment of Owen’s restrictive covenants at the time Owen and Stogner
`hatched their plan so that ICAT could solicit and divert Perimeter’s customers using Perimeter’s
`confidential information and trade secrets.
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`All of these matters predate Stogner’s September 10, 2024 hiring as ICAT’s CEO.
`However, Stogner’s personal knowledge of events, communications, and impressions after joining
`ICAT are equally or more relevant to this action:
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`e Stogner hired Owen and Burgan in October 2024 to carry out “the plan.”
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`e Stogner had Owen report directly to him, even though Stogner also had recently
`hired an Executive Vice President of Sales.
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`e Text messages show that Stogner and Owen communicated about Owen’s efforts
`to unlawfully solicit Perimeter’s customers, but their communications were not
`limited to texts.
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`22 See Exhibit 13, Hersh Decl. at § 27(b).
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`23 See Exhibit 13, Hersh Decl. at § 27(c).
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`4 Perimeter served third-party discovery on Omni in February 2025. See Exhibit 10.
`25 See Exhibit 2.
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`26 Td,
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`e Stogner is one of three individuals listed in ICAT’s Rule 192.4 initial disclosures.?’
`e Stogner verified both sets of ICAT’s answers to Perimeter’s interrogatories.”*
`Denying or limiting Perimeter’s ability to depose Stogner about his personal knowledge on
`all of these subjects materially impairs Perimeter’s ability to uncover the truth about matters
`indisputably relevant to this case and will unfairly prejudice Perimeter’s ability to prosecute its
`claims against Owen and ICAT.
`Hil.
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`ICAT Offers No Bona-fide Reason to Prohibit Perimeter from Taking Stogner’s
`Deposition, and the Court Should Deny ICAT’s Motion
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`ICAT’s motion is a thinly veiled attempt to delay Stogner’s deposition and prevent
`Perimeter from meaningfully prosecuting its claims against Defendants by denying it the ability to
`depose one of the two architects of the conspiracy entered into by ICAT and Owen. Although
`ICAT offers three explanations as to why the Court should prohibit Perimeter from deposing
`Stogner, none of them justify the relief that ICAT seeks.
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`A. ICAT’s Unavailability Argument Is Disingenuous
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`As a preliminary issue, ICAT objects because “the parties have not agreed to a date,” and
`Perimeter unilaterally set the April 11th date.”” Perimeter set the date only after proposing multiple
`possible dates for Stogner’s deposition and offering accommodations to reduce the burden of the
`deposition. Perimeter heard crickets from ICAT, in response. It is simply impossible to mutually
`select a deposition date when the opposing party refuses to provide dates. In any event, ICAT
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`offers no evidence that Stogner was specifically unavailable on April 11" or any other date.
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`27 See Exhibit 4.
`28 See Exhibit 13, Hersh Decl. at { 27(b).
`29 See ICAT Am. Mot. at 2.
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`B. The Proportionality Rule Does Not Warrant Protection for ICAT
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`Next, ICAT argues the Texas discovery rules — specifically Rule 192.4 — prevents
`Perimeter from taking Stogner’s deposition because “any discoverable information that could be
`gleamed from a six-hour (sic) deposition into the minutiae of Stogner’s communications is likely
`to be of little benefit given the small amount of damages in controversy as well as the diminishing
`issues at stake in this case.”°°
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`Under the “new” discovery rules (adopted in 1999), a court may limit discovery if it
`determines that “the burden or expense of the proposed discovery outweighs its likely benefit,
`taking into account the needs of the case, the amount in controversy, ... the importance of the
`issues at stake in the litigation, and the importance of the proposed discovery in resolving the
`issues.” Tex. R. Civ. P. 192.4(b). The Texas Supreme Court describes Rule 192.4 as imposing a
`“proportionality standard that requires a case-by-case balancing of jurisprudential considerations.”
`Inre State Farm Lloyds, 520 S.W.3d 595, 599 (Tex. 2017). The comment to the Rule makes clear
`that “courts should limit discovery under this rule only to prevent unwarranted delay and expense
`as stated more fully in the rule.’””!
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`Rule 192.4 does not support prohibiting Perimeter from taking Stogner’s deposition
`because ICAT’s arguments wholly ignore the importance of Stogner’s unique personal knowledge
`of the facts and issues in this case, which cannot be reasonably denied. ICAT’s argument also
`ignores the multiple proposed accommodations Perimeter has offered (even though Perimeter had
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`no obligation to do so). ICAT’s argument is meritless and should be rejected.
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`30 See ICAT Am. Mot. at 8.
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`31 Td. at comment 7 (emphasis added).
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`Boales v. Brighton Builders, Inc. illustrates this concept. 29 S.W.3d 159, 168 (Tex. App.—
`Houston [14th Dist.] 2000, review denied). In that case, homeowner-plaintiffs sued their developer
`and builders, alleging fraud, DTPA, conspiracy, breaches of warranty, and other causes. The
`homeowners sought to depose the builder-defendant’s general counsel. The builder moved for a
`protective order, citing the “apex” doctrine among other reasons. The court of appeals recognized
`that the apex guidelines did not apply because the homeowners did “not seek to depose [the GC]
`merely because of his corporate position. Rather they [sought] to depose him because they allege
`he ha[d] first-hand knowledge of certain facts, that is, the advice he gave to a Perry Homes vice
`president during contract negotiations between Perry Homes and Wimpey and to Perry Homes'
`sales representatives during training sessions regarding buyer disclosure and the DTPA.’*
`Although the court of appeals affirmed the trial court’s protective order, it did so only because the
`testimony sought from the GC was protected by the attorney-client privilege.*’
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`In re Gutierrez also is instructive. 2023 WL 3356701, at *6-9 (Tex. App.—Houston [14th
`Dist.] 2023, no writ). Gutierrez is an ancillary proceeding limited to whether plaintiffs in a
`Louisiana breach of contract lawsuit could depose the defendant’s CEO, who previously held the
`COO position. The CEO resided in Texas. The court of appeals held that the apex doctrine —
`although applicable — did not prevent Gutierrez’s deposition based on the CEO’s personal
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`knowledge. The plaintiffs presented evidence showing that the CEO was involved in and
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`corporate official because of his first-hand knowledge of certain facts, that is, the advice he gave to the VP during
`contract negotiations with another party and to a company sales representative during a training session regarding
`buyer disclosure and the DTPA); see Jn re Gutierrez, 2023 WL 3356701, at *7-9 (Tex. App.—Houston [14th Dist. ]
`2023, no writ) (holding that the apex doctrine does not apply where the discovering party offered evidence that
`established that the CEO was involved in and contributed to the company’s decision to approve the settlement of
`the claims giving rise to Plaintiff's cause of action for breach of contract).
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`36 Td. at 168 (citing Simon v. Bridewell, 950 S.W.2d 439, 442 (Tex.App.—Waco 1997, no writ) (“apex” doctrine
`applies where corporate officer has been noticed for deposition merely because of officer's corporate position; an
`officer with first-hand knowledge of relevant facts cannot avoid deposition because of “apex” status)).
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`37 Td.
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`contributed to the company’s decision to approve the settlement of the claims giving rise to
`Plaintiff's cause of action for breach of contract.** Thus, the plaintiffs carried their burden since
`they “arguably show[ed] that Gutierrez has some unique or superior knowledge of discoverable
`information.*® The court of appeals affirmed the trial court’s decision to deny the defendant’s
`motion for protection and to compel Gutierrez’s deposition.
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`Here, the apex guidelines do not prevent Perimeter from taking Stogner’s deposition, and
`it is not a close call. Perimeter is not seeking to depose Stogner because of his corporate position,
`but rather because of his unique, first-hand personal knowledge of relevant events as demonstrated
`herein. For example, and without limitation, in 2023, he participated in the decision-making at
`Omni Logistics not to employ Owen due to his “non-compete.’”° Fast forward a year, beginning
`in late August 2024, Stogner hatched “the plan” to misappropriate and exploit Perimeter’s trade
`secrets, confidential business information, customers, and goodwill.’ It is astonishing that ICAT
`would attempt to invoke the apex doctrine given not only Stogner’s unique, personal involvement
`in these events, but also because Stogner was not employed by ICAT when he obtained his first-
`hand personal knowledge about either of these two subjects. The apex deposition guidelines do
`not apply when the party seeking discovery “has arguably shown” that the deponent possesses
`“any unique or superior knowledge of discoverable information,” as Perimeter has here.“
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`Even if the apex deposition doctrine somehow applies, Perimeter nonetheless is entitled to
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`take Stogner’s deposition because it has satisfied the doctrine’s other guidelines. First, the exhibits
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`38 Td. at *6,
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`3° Td. (citing Crown Cent., 904 S.W.2d at 128).
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`4° See Exhibit 2.
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`41 See Exhibit 1.
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`42 See Crown Cent. Petroleum Corp., 904 S.W.2d at 128 (emphasis added).
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`to this motion contain evidence supporting the relevance and materiality of Stogner’s testimony.
`Second, Perimeter’s less intrusive discovery efforts — namely, the November 14, 2024 deposition
`of Defendant Owen, the March 21, 2024 deposition of ICAT’s corporate representative, and
`Perimeter’s February 2025 third-party discovery to Omni Logistics* — have been insufficient to
`obtain what Stogner’s deposition can provide.
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`None of this party and third-party discovery can tell us, among many other things: (1) what
`Stogner did or did not know about Owen’s restrictive covenants during Stogner’s recruitment
`effort on behalf of ICAT; (2) why Stogner, acting as ICAT’s CEO, allegedly believed the
`restrictive covenants Owen was bound to were not enforceable; and (3) the facts and circumstances
`surround Stogner’s decision to collude with Owen to divert customers and business from
`Perimeter. Put simply, Stogner plays a central role in the misconduct alleged in this case and
`contains unique personal knowledge of the facts that cannot be derived from any other source.
`ICAT made this abundantly clear when it had Stogner verify its answers to two sets of
`interrogatories and ICAT’s corporate representative directed Perimeter to Stogner for answers to
`many issues central to this case, such as, for example:“
`
`e ICAT’s corporate representative could not answer how Stogner arrived at his
`impression that Owen’s commitments to Perimeter were allegedly unlawful. She
`did not know whether Stogner sought professional advice or what he discussed with
`Owen. She testified that Perimeter would need to talk directly to Stogner. See
`
`ICAT Depo. at 195:1 — 196:24 (“I believe you would talk to Mr. Stogner if you
`want to know his particular impression of something.’’).*°
`
`43 See Exhibit 10, a true copy of Perimeter’s subpoena to Omni Logistics.
`
`44 ICAT’s argument that Perimeter’s corporate representative topics were not sufficient to allow ICAT to prepare a
`witness on these issues is meritless. Topic #3 of the corporate deposition was “Owen’s hiring and onboarding
`process with ICAT, including the initial communications or negotiations between and among Owen and ICAT about
`potential employment and communications about any potential opportunity with ICAT.” This necessarily
`encompasses Stogner’s recruitment activities. Topic No. 5 was “ICAT’s knowledge of any and all obligations owed
`by Owen to Perimeter, including without limitation Owen’s non-solicitation and confidentiality obligations.” Topic
`No. 9 was “Communications referring to, evidencing, or relating to Owen’s Confidentiality Agreement, including
`without limitation all restrictions contained therein, and any Documents related to same.”
`
`45 See Exhibit 11, a true excerpted copy of ICAT’s deposition.
`
`16
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`e ICAT’s corporate representative admitted that Stogner is the most knowledgeable
`person about his own conduct and communications, including those with Owen.
`Id. at 210:7 - 211:13 (“Q. Do you think Mr. Stogner would be aware of his
`interactions with Mr. Owen prior to the date that Mr. Owen was employed by
`ICAT? ... A. I believe that Mr. Stogner is the most knowledgeable person about his
`own actions.”’).*
`
`e ICAT’s corporate representative could not even provide testimony about when
`Stogner instructed Owen not to use Perimeter’s customer information, and
`concedes that Stogner himself can provide that information. /d. at 177:14-178:2:
`
`14 Q. (Ms. Eash) So sitting here today as the ICAT
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`15 corporate rep, you can't tell me when the CEO told
`16 Owen that he wasn't allowed to use PGL customer
`17 information?
`
`20 A (ICAT Corp. Rep.) | can't give you an exact date because it
`21 wasn't a written communication that | could verify a
`22 date.
`
`23 Q. Who is going to be able to give me that
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`24 date?
`
`1 A. | believe you have to ask Mr. Stogner when
`
`2 that communication happened.*’
`
`Thus, the apex doctrine does not prohibit Perimeter from deposing Stogner. As Boales and
`Gutierrez illustrate, the Apex guidelines simply do not prevent a deposition where the corporate
`official arguably has any direct personal knowledge of relevant events. See Crown Cent.
`Petroleum Corp., 904 S.W.2d at 128. This is a low threshold and, as demonstrated throughout,
`one that is easily satisfied here.
`
`IV.
`Perimeter is Entitled to Recover its Reasonable Attorney Fees
`
`Like ICAT’s earlier attempt to unsuccessfully thwart Perimeter’s deposition of ICAT’s
`
`corporate representative, Perimeter has incurred substantial expenses in preparing and filing this
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`46 Td.
`47 Td.
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`17
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`motion to obtain Stogner’s deposition. This should have been a routine scheduling matter. It
`should not have necessitated the Court’s intervention. But ICAT never provided dates for
`Stogner’s deposition after representing that it would, and then it altogether refused to make Stogner
`available based on proportionality and the apex doctrine, which plainly do not apply. ICAT has
`even ignored Perimeter’s offer to limit Stogner’s deposition to five hours and furnish Stogner with
`the deposition topics at least a week before the deposition.
`
`Under Texas Rule of Civil Procedure 215.1(d), Perimeter is entitled to reasonable expenses
`incurred in obtaining the order compelling Stogner’s deposition, including reasonable attorney
`fees. In support of these expenses, Perimeter is attaching the declarations of its counsel, which are
`incorporated herein for all purposes. The declarations of Katrina Eash and Barry S. Hersh are
`attached hereto and incorporated herein as Exhibits 12 and 13, respectively.
`
`V.
`Conclusion
`
`Perimeter respectfully asks that the Court grant this motion and order the deposition of
`Brad Stogner on a date certain in the immediate near future. Perimeter also respectfully asks that
`the Court deny ICAT’s motion to