When Must Executives Testify In Corporate Litigation? Wisconsin Judge Provides Insight

When can top executives in large corporations and other organizations avoid testifying in litigation involving the organization? Under a recent ruling by Federal Judge William Conley of Madison, the answer turns, in part, on the organization's ability to show that the executive lacks unique knowledge of the pertinent facts sought or established through his or her testimony. The decision provides important guidance for in-house counsel to consider when a notice of deposition for a key executive is received and offers insights on an issue that has received little attention from our appellate courts.

While depositions of high-ranking corporate executives are occasionally necessary, no in-house lawyer wants to have to tell the boss that he or she is being deposed. Worse than the deposition itself is the possibility that a plaintiff-side lawyer is trying to gain leverage by noticing a deposition even where an executive is only tangentially connected to a case. This situation, and the understandable desire of defense attorneys to avoid it, has given rise to the so-called "apex" doctrine, an unsettled point of law in the Seventh Circuit that was recently confronted by Judge William Conley in Epic Systems Corp. v. Tata Consultancy Services, Ltd., No. 14CV748 (W.D. Wis. Jan. 22, 2016).

The facts of the case are these: Epic alleged that U.S. employees of the Indian conglomerate Tata improperly accessed Epic's computer network and downloaded thousands of proprietary files in order to bolster Tata's competing health care software business. Epic sought to compel the deposition of Natarajan Chandrasekaran, Tata's Mumbai-based CEO. Epic alleged that Chandrasekaran was aware of the alleged trade secret theft, had personally recommended that Tata hire one of the employees involved in the alleged theft, and was involved in the marketing of Tata's competing software in the United States.

Tata opposed the deposition, and argued that Chandrasekaran was a busy executive whose involvement in the facts of the case was so limited that his deposition would be unreasonably burdensome and that the information sought was readily available from other sources. Tata also filed a declaration from Chandrasekaran in which he asserted he had no memory of discussing the marketing strategy for the competing software, and that he further had no memory of being involved in Tata's internal investigation of the allegation that Tata employees improperly accessed Epic's network.

Epic...