American Journal of Trial Advocacy

Molly John, Mount Everest, The Tallest Peak in the Himalayas, Nepal (photograph), in The World’s Tallest Mountain Ranges, WorldAtlas (Feb. 17, 2021), https://www.worldatlas.com/articles/the-world-s-tallest-mountain-ranges.html.

Authored by Madison E. Clark

The prevalence of constant litigation exposes corporations to the burden of navigating potentially frivolous lawsuits initiated by aggressive litigants.[1] As a result, high-level executive depositions, often called “apex depositions,” have become particularly arduous, costly, and impractical.[2] Instead of targeting employees or executives possessing direct knowledge of pertinent facts, plaintiff lawyers opt for apex depositions of top-tier executives despite the limited additional insights they may offer.[3] Such tactics are pursued with the awareness that these depositions are disruptive to the executives and the overall functioning of the companies they lead.[4] The practice underscores the importance of maintaining fair and equitable legal processes without unduly burdening corporate entities with frivolous or overly aggressive litigation strategies.[5]

Protective orders are a key safeguard against abusive discovery practices under the Federal Rules of Civil Procedure. Rule 26(c) outlines the general framework for requesting a court to prevent an apex deposition.[6] It is specifically provided in Rule 26 that “a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”[7] According to Rule 26(c), the party seeking the protective order must show “good cause” for the order to be issued.[8] The majority of states have also enacted laws mirroring civil procedure rules.[9] In Georgia, for instance, at the request of a party or the individual from whom discovery is sought, and upon showing good cause, “the court where the action is pending . . . [may] make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden and expense.”[10]

Despite the Federal Rules and complementary state law, courts have broad discretion when deciding whether protective orders should be imposed.[11] A unique line of authority has evolved under Rule 26(c)(1) known as the apex doctrine.[12] The apex doctrine “provides courts with a framework for determining whether good cause exists to forbid or limit the deposition of a high-ranking corporate executive who lacks personal, unique knowledge of facts relevant to the litigation.”[13] As a result of the apex doctrine, corporate bosses can avoid depositions unless a plaintiff demonstrates they have specific information that cannot be obtained anywhere else.[14] In contrast to Rule 26(c)(1), which imposes the burden of showing “good cause” why the deposition should not be taken, the apex doctrine shifts the burden of proof to the party seeking the deposition.[15] By applying the apex doctrine instead of the Rule 26(c)(1) standard, courts require the party seeking the deposition to: “(1) show that the putative deponent possesses ‘unique or superior’ and often ‘first hand’ relevant knowledge and (2) demonstrate it has pursued all other ‘less burdensome’ means of acquiring that knowledge.”[16]

Even though some courts refuse to recognize the apex doctrine as a separate rule, they reach similar conclusions as courts that adopt the doctrine solely on the basis of Rule 26(c) or similar state laws.[17] According to these courts, since Rule 26 allows a court to protect a party or person from annoyance, embarrassment, oppression, or undue burdens or expenses, the apex doctrine is not needed.[18] The inquiry is substantially the same regardless of whether a court uses the term “apex doctrine.”[19] For example, in General Motors v. Buchanan, the Georgia Supreme Court declined to adopt the apex doctrine but held that the party opposing the apex deposition may raise certain apex factors in support of a motion for protective order.[20] In particular, General Motors established that trial courts must evaluate certain apex factors to determine if “good cause” exists, which include “the executive’s high rank, the executive’s lack of unique personal knowledge of relevant facts, and the availability of information from other sources.”[21]

In determining whether to grant or deny a protective order under the apex doctrine, courts primarily assess whether the apex deponent possesses “unique or superior knowledge” pertinent to the matter in question.[22] This conclusion usually drives the court’s decision on whether to grant or deny the protective order because the apex doctrine “is normally aimed at high-level decision makers who have no particular knowledge of the facts pertaining to the particular lawsuit.”[23] Within In re Alcatel USA, Inc.,[24]the Texas Supreme Court made significant strides in clarifying the parameters of “unique” or “superior” knowledge within the context of apex depositions.In this case, the party seeking to depose a high-ranking corporate official was tasked with presenting factual evidence to the court, illustrating that the official could possess relevant, discoverable information.[25] The court’s ruling in Alcatel emphasized that mere relevance alone wouldn’t suffice; instead, there must be a demonstration that the executive holds personal knowledge that is either exclusive to them or of significantly greater quality or quantity than other potential sources.[26] The court underscored that a plaintiff must do more than merely establish the existence of discoverable information; they must establish that the executive possesses uniquely valuable insights into the matter at hand.[27] The Alcatel decision affirmed that adopting a relaxed “some knowledge” standard would effectively render apex depositions devoid of meaning, highlighting the necessity for a rigorous standard to ensure the integrity and efficacy of the legal process.[28]

A recent illustration of this principle emerged in the Florida Court’s ruling in Telsa, Inc. v. Monseratt,[29] where Florida’s version of the apex doctrine was invoked. Here, the court articulated that if a senior corporate official, through a sworn affidavit, attests to lacking unique knowledge concerning the disputed issues, plaintiffs must demonstrate they’ve exhausted alternative discovery avenues, that such methods were insufficient, and that the apex deponent indeed harbors distinctive, personal insights into the discoverable facts.[30] The court held that the plaintiff failed to meet this burden, and therefore, the apex deposition was denied.[31] Tesla emphasized the careful requirements for apex depositions and the strict criteria necessary to justify their necessity, highlighting the delicate balance between protecting high-ranking individuals from undue burdens and ensuring that relevant information is thoroughly explored in legal proceedings.

Furthermore, courts frequently consider whether the party seeking a deposition pursued less burdensome discovery methods when applying the apex doctrine.[32] The opposing party may request that the deposition of an apex deponent be postponed until all other discovery methods have been exhausted.[33] A court will generally determine whether a party seeking the deposition has exhausted a number of other discovery options, including depositions of lower-level employees with relevant knowledge, interrogatories, depositions on written request, and depositions of corporate representatives.[34] It may be possible for the court to bar the apex deposition if the requesting party has not exhausted all other discovery options.[35] However, in such a case, the court may include a provision to reconsider the protective order if the information cannot be obtained through other means.[36]

In the case of Celerity, Inc. v. Ultra Clean Holding, Inc., the plaintiff initiated a patent infringement lawsuit against the defendant.[37] The defendant sought a protective order to prevent the deposition of two high-ranking executives under the apex doctrine.[38] According to legal precedent, a plaintiff can only depose top-tier employees once it has exhausted other avenues of discovery, such as interrogatories or depositions of lower-level staff.[39] However, the court found that the plaintiff mistakenly believed that merely scheduling the executives’ depositions after those of lower-level employees fulfilled this requirement.[40] The court clarified that such an approach didn’t adhere to legal standards; rather, plaintiffs must demonstrate a genuine effort to obtain the desired information through thorough interrogatories and lower-level depositions before targeting high-ranking executives.[41] Half-hearted attempts at lower-level depositions solely to pave the way for apex depositions were deemed insufficient.[42] The court emphasized the necessity for plaintiffs to engage in bona fide efforts to obtain relevant information before pursuing apex depositions.[43]

The apex doctrine stands as a strategic tool for counsel to navigate the deposition process, offering the opportunity to sidestep or curtail the deposition of high-ranking executives or officers. It is crucial for counsel to fully understand the procedural and substantive nuances of the apex doctrine before seeking a protective order to prevent an apex deposition.[44] With well-supported motions for protective orders, skilled counsel can often achieve similar relief in jurisdictions that do not recognize the apex doctrine.[45] Even so, it’s important to remember that no apex deponent is completely protected from deposition, especially if they possess “relevant, unique, or superior knowledge of the issues in the case that cannot be obtained through alternative discovery methods.”[46] When this occurs, counsel should negotiate reasonable limits on the timing, location, scope, and method of the deposition to balance the parties’ interests.[47]

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[1] Lionel Lavenue et al., The Apex Doctrine and Depositions of High-Level Executives: The Divide Among, Reuters (Mar. 14, 2023, 12:39 PM), https://www.reuters.com/legal/legalindustry/apex-doctrine-depositions-high-level-executives-divide-among-circuit-courts-2023-03-14/.

[2] Id.

[3] Michael Hewes & Jordan Jarreau, The First Line of Defense Against Plaintiff Overreach, JDSupra(June 3, 2022), https://www.jdsupra.com/legalnews/the-apex-doctrine-and-the-c-suite-8813387/.

[4] Apex Depositions: A Question of Unique Personal Knowledge, Wasser Russ : Blog (Nov. 26, 2013), https://www.wasserruss.com/apex-depositions-a-question-of-unique-personal-knowledge/.

[5] Id.

[6] Nathan Davis et al., The Apex Rule and Protecting Your Client’s Management Team When Conducting Deposition Discovery, Found. for Nat. Res. and Energy L. 1, 6 (2022), https://www.jdsupra.com/legalnews/the-apex-rule-and-protecting-your-3081411/.

[7] Fed. R. Civ. P. 26(c)(1).

[8] Id.

[9] Sara Collin, Protecting High-level Executives with the Apex Doctrine, Best Laws. (June 21, 2022, 9:11 AM), https://www.bestlawyers.com/article/apex-doctrine-protects-executives/4580#:~:text=But%20what%20is%20the%20“apex,to%20high%2Dlevel%20government%20officials.

[10] Ga. Code § 9-11-26(c).

[11] Nathan Davis et al., supra note 6, at 2.

[12] Timothy St. George et al., Opposing “Apex” Depositions of Top Corporate Executives, Prac. L. 1, 1 (2015), https://www.troutman.com/a/web/4762/Opposing%252520Apex%252520Depositions%252520of%252520Top%252520Corporate%252520Executives%252520(1-602-9445)-REV.PDF.

[13] Gen. Motors, LLC v. Buchanan, 313 Ga. 811, 811 (Ga. 2022).

[14] Alison Frankel, Why Elon Musk Was Able to Duck a Deposition but Satya Nadella Was Not, Reuters (Jan. 10, 2024, 3:50 PM), https://www.reuters.com/legal/transactional/column-why-elon-musk-was-able-duck-deposition-satya-nadella-was-not-2024-01-10/.

[15] Amalia L. Lam, The Unwarranted Weight of a “Paper Barrier”: A Proposal to Ax the Apex Doctrine, 89 Wash. U. L. Rev 1457, 1462 (2012).

[16] Id. at 1462-63.

[17] Timothy St. George et al., supra note 12, at 2.

[18] Id.

[19] Id.

[20] Gen. Motors, 313 Ga. at 823.

[21] Christian Bromley & Justin Jorgensen, Georgia Supreme Court Finds “Apex Doctrine” Factors Are Entitled to Consideration, JDSupra (June 14, 2022), https://www.jdsupra.com/legalnews/georgia-supreme-court-finds-apex-8508771/.

[22] Timothy St. George et al., supra note 12, at 2.

[23] Wal-Mart Stores, Inc. v. Vidalakis, No 07- MC-00039, 2007 WL 4591569, at *1 (W.D. Ark. Dec. 28, 2007).

[24] 11 S.W.3d 173 (Tex. 2000).

[25] In re Alcatel USA, Inc., 11 S.W.3d 173, 173 (Tex. 2000).

[26] Id. at 179.

[27] Id.

[28] Id.

[29] 384 So. 3d 194 (Fla. Dist. Ct. App. 2024).

[30] Telsa, Inc. v. Monseratt, 384 So. 3d 194, 197 (Fla. Dist. Ct. App. 2024).

[31] Id.

[32] Amalia L. Lam, supra note 15, at 1467.

[33] Timothy St. George et al., supra note 12, at 2.

[34] Litigation, Overview – Apex Deposition Doctrine: Discovery, Bloomberg L., https://www.bloomberglaw.com/document/X1OMC7C000000 (last visited July 28, 2024).

[35] Nathan Davis et al., supra note 6, at 9 (“To the extent other forms of discovery could be used to discover the desired information . . . the apex executive should identify those alternative methods of discovery that likely would satisfy the need for discovery so that the court is informed of less-burdensome alternatives that may satisfy the need for discovery. Doing so often at least postpones the need for an apex witness to sit for a deposition and often precludes apex depositions altogether.”).

[36] Amalia L. Lam, supra note 15, at 1467.

[37] No. C 05-4374MMC(JL), 2007 WL 205067, at *1 (N.D. Cal. Jan. 25, 2007).

[38] Celerity, Inc. v. Ultra Clean Holding, Inc., No. C 05-4374MMC(JL), 2007 WL 205067, at *2 (N.D. Cal. Jan. 25, 2007).

[39] Id at *3.

[40] Id at *5.

[41] Id.

[42] Id.

[43] Id.

[44] Lionel Lavenue et al., supra note 1.

[45] Christopher R. Christensen & Justin M. Schmidt, Revisiting the Apex Doctrine, Priv. Project 200, 207 (2011), https://condonlaw.com/wp-content/uploads/2019/09/Revisting-the-Apex-Doctrine.pdf.

[46] Id.

[47] Id.