So as long as it looks like someone’s tes­ti­mony isn’t the only way to obtain infor­ma­tion, indi­vid­u­als can avoid tes­ti­fy­ing if they claim its against their reli­gion. Huh. Time to start pray­ing if you want to keep your job, kiddo.

In related news, a Texas appeals court just ruled that the head of the Church of Sci­en­tol­ogy, David Mis­cav­ige, won’t have to tes­tify in a case about church harass­ment of an ex-Scientologist. But it wasn’t Hobby Lobby that got him off the hook. It was the “apex-deposition doc­trine”:

statesman.com
Sci­en­tol­ogy head can’t be forced to tes­tify, Texas court rules

By Chuck Lindell

Updated: 2:47 p.m. Thurs­day, July 17, 2014 | Posted: 1:47 p.m. Thurs­day, July 17, 2014

American-Statesman Staff

David Mis­cav­ige, head of the Church of Sci­en­tol­ogy, can­not be forced to tes­tify in a harass­ment law­suit filed by the wife of a promi­nent church critic who lives in Comal County, a state appeals court ruled Thursday.

The 3rd Court of Appeals in Austin ruled that Monique Rath­bun, who alleged that Sci­en­tol­o­gists con­ducted a three-year harass­ment cam­paign when her hus­band, Marty Rath­bun, began speak­ing out against church activ­i­ties, did not prove that Mis­cav­ige had “unique or supe­rior knowl­edge” to offer in a deposition.

How­ever, the court did not rule out the pos­si­bil­ity that “addi­tional, less intru­sive means of dis­cov­ery” could estab­lish Rathbun’s right to force Mis­cav­ige to answer ques­tions, under oath, in a future deposition.

Marty Rath­bun is a for­mer high-ranking mem­ber who left the Church of Sci­en­tol­ogy in 2004 and later accused Mis­cav­ige of phys­i­cally and psy­cho­log­i­cally abus­ing other church mem­bers, court records show.

In her law­suit, Monique Rath­bun claims church mem­bers responded by con­duct­ing covert sur­veil­lance of their Bulverde-area home, fol­low­ing them with cam­eras and hir­ing pri­vate inves­ti­ga­tors to spread dis­parag­ing infor­ma­tion about her hus­band under the guise of inter­view­ing fam­ily, friends and co-workers.

Her law­suit argued that Mis­cav­ige, “the unques­tioned ruler of all Sci­en­tol­ogy orga­ni­za­tions,” was the only per­son who could have autho­rized the activities.

...

In its rul­ing, the 3rd Court of Appeals over­turned state Dis­trict Judge Dib Waldrip’s order allow­ing Monique Rath­bun to depose Miscavige.

Waldrip’s order, the appeals court ruled, vio­lated the apex-deposition doc­trine, which seeks to bal­ance a litigant’s need for infor­ma­tion against a high-ranking executive’s right to be pro­tected from expen­sive, harass­ing or bur­den­some depositions.

“Monique has not demon­strated that depos­ing Mis­cav­ige is likely to lead to (rel­e­vant) infor­ma­tion … which is not obtain­able through less intru­sive means,” said Jus­tice Scott Field, writ­ing for the court’s unan­i­mous three-judge panel.

Inter­est­ingly, the “apex-deposition doc­trine” has rules that sound pretty sim­i­lar to the new Hobby Lobby rul­ing: Exec­u­tives to can avoid being forced to tes­tify, even if they have per­sonal knowl­edge of the mat­ter at hand, as along as the infor­ma­tion inves­ti­ga­tors are seek­ing can poten­tially be found by depos­ing some­one lower down in the orga­ni­za­tion:

Law 360
A Spe­cial Rule for Cor­po­rate Exec

New York (Octo­ber 08, 2010, 5:22 PM ET) –

While the U.S. Supreme Court rec­og­nized more than a quar­ter of a cen­tury ago the poten­tial abuse that can occur when the depo­si­tion of a com­pany exec­u­tive is notice, the rules of civil pro­ce­dure in state and fed­eral courts gen­er­ally allow a party to depose “any per­son.” See, e.g., Fed. R. Civ. P. 30(a).

A wit­ness gen­er­ally can­not escape a depo­si­tion by claim­ing lack of knowl­edge of rel­e­vant facts because the party seek­ing the depo­si­tion is enti­tled to test that lack of knowl­edge. Charles Alan Wright, Arthur R. Muller and Richard L. Mar­cus, Fed­eral Prac­tice and Pro­ce­dure § 2037 (2d ed. 2009).

Courts bal­ance lib­eral dis­cov­ery rules and the unique bur­dens placed on high-level offi­cials at the apex of the com­pany whose depo­si­tion is sought. Some courts, using what has been termed the “apex doc­trine,” bal­ance a party’s right to dis­cov­ery and an executive’s right to avoid harass­ment and abuse.

In gen­eral, the apex doc­trine pro­hibits the tak­ing of such depo­si­tions of exec­u­tives unless and until: 1) the plain­tiff can show that the depo­nent has unique or supe­rior knowl­edge of facts that are rel­e­vant to the claim; and 2) alter­na­tive meth­ods to obtain the infor­ma­tion have been exhausted with­out suc­cess. See, e.g., Baine v. Gen­eral Motor Corp., 141 F.R.D. 332 (M.D. Ala. 1991).

Some courts reject the apex rule, but use the tra­di­tional rule regard­ing pro­tec­tive orders to reach the same result. See, e.g., Ex. rel. Ford Motor Co. v. Messina, 71 S. W. 3d 602 (Mo. 2002).

The bur­den of proof is not uni­formly applied. Some courts place the bur­den of per­sua­sion on the party seek­ing the depo­si­tion. See, e.g., Lib­erty Mutual Co., v. Supe­rior Court, 10 Cal. App. 4th 1282, 13 Cal. Rptr. 2d 363 (1992). Other courts place the bur­den on the party seek­ing to avoid the depo­si­tion. See, Crest Infiniti v. Swin­ton, 174 P.3d 996 (Okl. 2007).

...

So it looks like Hobby Lobby may have extend the “apex-deposition doc­trine” to all mem­bers of secre­tive cults. It’s still time to start pray­ing, kiddo.

http://spitfirelist.com/news/divine-laissez-faire-comparing-the-theocratic-free-market-philosophies-of-the-muslim-brotherhood-and-the-family/