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The Apex Deposition: Practice Tips and Standards

Joseph V. Schaeffer

The Apex Deposition: Practice Tips and Standards
Mlenny via Getty Images

Litigants (primarily defendants) have long complained about the in terrorem effect of discovery and its use for extracting settlements even in cases of dubious liability. While from the complainers’ perspective most of those grievances go unheeded, sometimes they find a sympathetic ear with the judiciary. The apex-deposition doctrine is a shining example.

Under the apex-deposition doctrine, courts will issue a protective order preventing the deposition of a high-level corporate employee. (A similar doctrine exists for high-level governmental officials.). It is not a "get out of jail free card," though. To avail itself of the apex-deposition doctrine, the party opposing the deposition generally must show that (1) the witness lacks unique, first-hand knowledge of the facts at issue and (2) other, less intrusive means of discovery have not been exhausted. As a consequence, most courts require the deposition of lower-ranking employees before permitting the deposition of an executive-level employee to proceed.

In a patent-licensing dispute pending in the Southern District of California, Magistrate Judge Nita L. Stormes applied this doctrine to prevent the deposition of one of the defendant's former corporate executives. Rembrandt Diagnostics, LP v. Innovacon, Inc., No. 16-cv-0698 CAB, 2018 WL 692259, at *6–7 (S.D. Cal. Feb. 2, 2018). In fact, it wasn't a particularly close call. The witness had been employed as only one of only three global presidents for an international, publicly traded company. Moreover, the plaintiffs had yet to depose lower-ranking employees within the company. The only real wrinkle was that the corporate executive had since left the company. Judge Stormes, however, gave that argument short shrift and relied on a number of cases extending the apex-deposition doctrine to former executives.

The primary takeaway from Rembrandt is that litigants should establish a special need before seeking the deposition of a high-level corporate employee. This can be done through written discovery, such as by identifying unique communication with the corporate employee, and also through depositions of lower-level employees. If the less-intrusive efforts leave gaps that can only be filled by executive's deposition, most courts will allow it to proceed over objection.

A secondary takeaway from Rembrandt, however, concerns how to set up a dispute over an apex deposition for the court's resolution. In Rembrandt, the party seeking the executive's deposition argued that the executive should be produced as a Rule 30(b)(6) witness. Although Judge Stormes did not reach that issue, she was skeptical. A party is not under obligation to produce a specific witness in response to a Rule 30(b)(6) notice and may prepare any person of its choosing. Instead, the better practice is for the party seeking an executive's deposition to notice the deposition under Rule 30(b)(1), but only after, of course, ensuring it has met the apex-deposition requirements.