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August 27, 2020 Practice Points

Apex Depositions: Best Practices for Depositions of C-Suite Executives

Strategies to take and defend depositions of top executives

By Charles W. Stotter

Two of the Commercial & Business Litigation Committee’s own, former co-chairs, P. John (“Jack”) Brady and Michael S. LeBoff, along with in-house counsel Christina Zabat-Fran, recently conducted a roundtable that addressed important strategies and considerations that go into taking or defending the deposition of top executives, so-called Apex depositions. Examining the C-Suite: The Do’s and Don’ts of Director and Officer Depositions (August 12, 2020).

The Roundtable was presented by the Section of Litigation’s Professional Liability Litigation, Trial Evidence, and Commercial & Business Litigation Committees. Among the topics covered were (i) whether such a deposition is best for the client, or whether there are grounds to prevent it, (ii) the type of personality who would make a good witness, or a good communicator, (iii) working with in-house counsel to prepare or defend such depositions, and (iv) formal requirements for an Apex deposition, including the factors considered by the courts in allowing or disallowing them. The roundtable discussion was engaging and informative. It was recorded, so please check the Section’s Roundtable website here, where it will soon be posted.

In the meantime, the panel prepared a highly useful PowerPoint addressing the issues and matters discussed, which any practitioner will find useful to review. Examining the C-Suite: Strategies to Prepare and Defend High-Level Executive Depositions.

The Roundtable is well worth listening to, and the PowerPoint well worth reviewing, for the valuable insights they provide to practitioners and in-house counsel on this topic.

Charles W. Stotter is with Carlton Fields, P.A., in Florham Park, New Jersey.

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