It has become an increasingly common tactic for opposing counsel to seek the depositions of top corporate executives. These depositions are generically referred to as apex depositions. The apex deposition poses a unique set of challenges for deponents and corporations, but an emerging line of cases has developed providing guidance on how to limit and/or quash them. In fact, the abusive practice of noticing high ranking corporate officials has become so pervasive a number of courts have fashioned an entire body of law governing the appropriate procedure for deposing corporate presidents, chairmen, and other highly situated corporate officials – aptly named the apex doctrine. “The apex doctrine provides that depositions of the highest-ranking corporate officials should not take place absent a showing of specific, unique knowledge on the part of the requested deponent and an initial attempt to obtain relevant, necessary discovery through less intrusive methods.” Baine v. General Motors Corp., 141 F.R.D. 332, 334 (M.D. Ala. 1991).
Nearly every court addressing apex depositions recognize that these depositions create a tremendous potential for abuse. With that in mind, courts have fashioned three general grounds to restrict or prohibit the depositions of an apex executive: (1) the apex executive has very limited knowledge of the facts of the case or the matters related thereto; (2) where the party seeking discovery has not yet attempted to obtain the information from lower level employees of the corporation; and (3) where the deposition request is used primarily as a method to harass the apex executive.
Courts applying the apex doctrine have rationalized the strict limitations placed on deposing apex officials as follows, “high level executives are vulnerable to numerous, repetitive, harassing, and abusive depositions, and therefore need some measure of protection from the courts.” Evans v. Allstate Insurance Co., 216 F.R.D. 515, 519 (N.D. Ok. 2003). As a result, many courts have required that a party seeking an apex deposition first try to gather information from lower level employees prior to noticing the burdensome deposition of the apex executive. See Thomas v. International Business Machines, 48 F.3d 478, 483 (10th Cir. 1995). Not all courts have recognized the apex doctrine as a separate and unique legal rule, but have still reached similar decisions based on Fed. R. Civ. P. 26(c). These courts have found that because the language of Rule 26 allows a court to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, there is no need to create or apply a special doctrine.
For all that, despite the courts’ efforts, there is no absolute protection for high-level apex officials. Because the knowledge held by apex officials is so varied, courts must apply the doctrine on a case by case basis. Nevertheless, courts will generally never permit a party to use liberal discovery requests to harass or burden upper echelon corporate executives. In any event, the apex doctrine can be a useful tool for attorneys when the goal is to prevent the harassment and unnecessary exposure of their corporate clients’ high-level personnel.
Authored by Benjamin Z. (Ben) Claxton, Sr.