The Apex Doctrine And Depositions Of High-Level Executives: The Divide Among Circuit Courts

JurisdictionUnited States,Federal
Law FirmFinnegan, Henderson, Farabow, Garrett & Dunner, LLP
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation
AuthorMr Lionel Lavenue, Joseph Myles and Maram Al-Shaer
Published date30 March 2023

With corporations in constant litigation, and in some instances in specious lawsuits from aggressive litigants, depositions of high-level executives, "apex depositions," have become profoundly burdensome, costly, and impractical. (An apex deposition is a deposition of the persons at the apex of the corporate tree). Rather than taking the depositions of employees and/or executives with first-hand knowledge of the relevant facts, plaintiff lawyers sometimes seek apex depositions of high-level executives, who offer little to no additional information, knowing that such depositions are disruptive to top executives and the companies they lead.

In such instances, companies can invoke the protections of Rule 26(c)(1)(A) of the Federal Rules of Civil Procedure, which allows a court to "issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense," by barring the deposition of certain individuals. The party seeking the protective order bears the burden of showing good cause exists to issue the order. However, most jurisdictions have also established a doctrine that prevents the deposition of top executives, known as "the apex deposition rule."

A. Apex depositions are generally unnecessary and barred

Because apex depositions rarely reveal any significant information in discovery, some jurisdictions presumptively bar them due to the unnecessary distractions they create on top executives. And, even when apex depositions are noticed by an aggressive litigant, district courts often review the potential for oppression, inconvenience, and burden on the company, and if necessary, issue a protective order to prevent the deposition.

But there is a divide between the circuits about the manner by which apex depositions are quashed. Some courts view apex depositions as part of the traditional discovery process and require that a company opposing the apex deposition do so via motion practice. Other courts have established apex deposition rules that require less hassle to oppose an apex deposition without resorting to motions for protective orders and/or motions to quash until other avenues ' such as deposing a lower-ranked executive ' are taken first. If you are an apex executive, your likelihood of being deposed may depend on if you live in a state that is friendly or unfriendly to apex depositions.

B. Lucky executives in jurisdictions with a presumption against apex depositions

Several circuits have taken a proactive...

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