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Not so fast – The Apex Doctrine may shield a high-ranking executive or government official from sitting for a deposition

10/17/23

By: Cameron Regnery and Scott Eric Anderson

The “Apex Doctrine” is a legal principal aimed at protecting top executives and government officials from having to sit for a deposition in certain situations. The Doctrine recognizes that the burden and disruption of deposing a top executive or government official should be weighed against the potential relevance of the information sought, the necessity of the deposition, and the availability of the information from other sources. It seeks to protect executives or government officials from the danger of being continuously deposed in matters in which they have little to no personal knowledge of the facts and when the relevant information sought is available by other means. The doctrine varies among federal and state jurisdictions; although, there is a general consensus of a set of non-exhaustive factors to determine whether “good cause” exists. Typically, those factors are:

1. Whether the deponent is a sufficiently high-ranking executive or government official considering her role and responsibilities within the organization or agency;
2. Whether the information sought is properly discoverable;
3. Whether the information sought is relevant to the subject matter of the claim or defense;
4. Whether the executive or official has “unique” personal knowledge of the relevant facts; and
5. Whether the information sought is available from other sources or through alternative, less burdensome means.

In some jurisdictions, a balancing of these factors results in a rebuttable presumption against the deposition, and the burden shifts to the party seeking the deposition to make a showing of the necessity for the testimony. In other jurisdictions, the burden is on the one invoking the doctrine to show cause why the deposition should not proceed or should be limited in scope. We delve a little bit more into apex doctrine below.

Discovery is the process by which litigants gather information from opposing parties. It is a crucial aspect of civil litigation. As a general matter, courts and the rules of civil procedure alike favor full discovery and promote broad, liberal discovery rules. An important tool to attaining this broad, full discovery is a deposition, which allows litigants to question and obtain information from individuals with knowledge pertinent to a case. Depositions pose a risk, however, in that they also can be weaponized to harass, intimidate, or burden opposing parties. This resulting conflict between promoting full discovery and minimizing harassing, intimidatory, or burdensome tactics has given rise to both federal and state protections for individuals from whom discovery is sought.

In federal court, the Federal Rules of Civil Procedure provide safeguards against abusive discovery practices, specifically through protective orders. Rule 26(c)(1) provides that a party from whom discovery is sought may move for a protective order and 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.” Likewise, most states have enacted statutory protections against improper discovery requests as well. Georgia’s law governing discovery, for example, provides that upon motion and for good cause shown, the court may “make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden and expense.” O.C.G.A. § 9-11-26(c).

While the Federal Rules and complimentary state law provide the framework for protective orders, courts have ultimately created the mechanisms for determining when to impose them. One such judicially created vehicle for imposing a protective order is the “apex doctrine.” The apex doctrine is designed to protect high-level officials within an organization or government agency from being deposed on lower-level matters over which they have limited, if any, knowledge. For example, in May 2023, Georgia enacted a statute (i.e., O.C.G.A. § 9-11-26.1) that expressly provides for the issuance of a protective order for certain high-ranking members of a governmental body or entity in certain circumstances.

Logically, the apex doctrine makes sense. For example, why should the CEO of the XYZ Chain Restaurant Corp. have to sit for a deposition in every case in which a customer alleges to have slipped and fallen at any number of restaurants across the country? The CEO would never get anything done and would not have time to run the company. Certainly, the restaurant manager would have better, more unique, personal first-hand knowledge of the circumstances that led to the alleged slip and fall. The CEO sitting multiple states away would not have any such first-hand personal knowledge.

For an individual’s “apex-ness” to prevent his deposition, the potential deponent must be a sufficiently “high-level” official. In the corporate setting, the apex doctrine is generally applied to upper management and executives such as chief executive officers (CEOs), directors, and presidents.[1] For example, in Apple Inc. the district court noted that the CEO of Samsung was the “quintessential apex.”[2]

The apex doctrine is not limited to the corporate boardroom, however, as courts have extended its protections to government officials as well. In Odom v. Roberts, the Northern District of Florida noted that “high-ranking government officials” are generally exempt from depositions absent special circumstances.[3] The district court held that sheriffs were sufficiently high-ranking government officials because they were the highest-ranking officials and chief policy makers in their respective departments.[4] Federal courts have accordingly extended apex protections to sheriffs, county police commissioners, and prison superintendents, among others.[5]

An individual’s high-level status alone is not a guarantee of apex protections. In Apple Inc., the district court articulated a two-prong test to determine whether to allow an apex deposition for high-level corporate officials, asking (1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods. Relying on this test, the district court found that although the CEO was unquestionably a high-level official, Apple had proffered sufficient evidence of unique personal knowledge such that the CEO was not shielded from being deposed. The Apple Inc. test, or slight variations thereof, has been adopted using similar language in both federal and state courts across the country.

In the context of high-ranking government officials, federal courts have expanded the general test articulated in Apple Inc. In Odom, the district court added another consideration to the Apple Inc. test, asking whether the deposition would interfere with the ability of the official to perform his government duties.[6] Because the sheriff in that case did not demonstrate that a brief deposition would substantially inhibit his abilities to perform his official duties, the apex doctrine did not bar him from being deposed.[7] The analyses in Odom and Apple Inc. highlight the limits of the apex doctrine’s applicability. While the apex doctrine will protect the CEO of XYX Major Chain Restaurant Corp. from being hailed into a deposition whenever there is a minor slip-and-fall in a restaurant, it will not similarly protect the CEO of ABC Tech Corp. when the CEO has unique information pertinent to a dispute with a competitor company.

The preceding discussion illustrates why the apex doctrine is so aptly named. Once an individual has demonstrated she is sufficiently “high-level” to open the door to apex protections, courts must engage in a careful balancing test to determine whether the deposition is warranted. Ultimately, the dividing line is whether the potential deponent has unique, first-hand personal knowledge relevant to the issues and whether less intrusive discovery methods can be utilized. While the apex doctrine has not been uniformly adopted across jurisdictions, it nonetheless provides a method for harmonizing the encouragement of full, broad discovery and the prevention of abusive discovery practices.  

The commercial litigation attorneys at Freeman Mathis & Gary, LLP have a wealth of experience in business disputes and can provide you with legal options for you and your business.

For more information, please contact Cameron Regnery at Cameron.Regnery@fmglaw.com, Scott Eric Anderson at Scott.Anderson@fmglaw.com, or your local FMG attorney.

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[1] General Motors, LLC v. Buchanan, et al., 313 Ga. 311 at 817, 874 S.E.2d 52 at 61 (2022).

[2] Apple Inc. v. Samsung Electronics Co., Ltd., 282 F.R.D. 259, 265 (N.D. Cal. 2012). (markings omitted).

[3] 337 F.R.D. 359, 363 (N.D. Fla. 2020)

[4] Odom, 337 F.R.D. at 364.

[5] See Murray v. Cnty. of Suffolk, 212 F.R.D. 108 (E.D.N.Y. 2002) (county police commissioner); Warren v. Washington, No. C11-5686 BHS/KLS, 2012 WL 2190788 (W.D. Wash. June 14, 2012) (prison superintendents).

[6] 337 F.R.D. at 365.

[7] Id. at 365.