- Resisting Depositions of Apex Officials
- May 11, 2010 | Author: Albert M. Rodriguez
- Law Firm: McCumber, Daniels, Buntz, Hartig & Puig, P.A. - Tampa Office
It is not uncommon for plaintiffs’ attorneys to attempt to set the depositions of high level corporate executives of companies that are defendants in liability litigation, even though these executives, or “apex officials”, rarely have personal knowledge of the key facts or ultimate issues in the case. Typically, the true goal of these deposition requests is not to uncover information reasonably calculated to lead to the discovery of admissible evidence, but rather to harass or inconvenience the officials and assert pressure in an effort to “extort” a settlement.
As a result, the courts in some states have created, and some federal cases have addressed, a rule of procedure known as the “apex doctrine”, which restricts a party’s ability to take the deposition of an “apex” official unless that party can demonstrate that the apex official has special knowledge of the facts at issue and that all other less burdensome means of obtaining the requested information have been exhausted.
One of the first cases to address a party’s right to conduct the depositions of apex officials was Baine v. General Motors Corp., 141 F.R.D. 332 (M.D. Ala. 1991). In Baine, the plaintiff sued General Motors for wrongful death, alleging defective design and manufacturing of an automobile’s seatbelt. The plaintiff sought to depose a General Motors’ Vice President and the court held that such a deposition would be inappropriately burdensome, since the plaintiff did not show an inability to get the information (1) from other lower level employees offered by the defendant; (2) from interrogatories, and (3) from a corporate representative deposition. The court also recognized the need to limit discovery to prevent cumulative, duplicative, harassing, and burdensome discovery. In addition, the court emphasized that, at the very least, requiring the use of more convenient or less burdensome methods would “aid in developing and refining a line of questioning.” Further, the court concluded that the plaintiff had not shown that the Vice President had any superior or unique personal knowledge entitling the plaintiff to the Vice President’s deposition.
Another second seminal case was Liberty Mutual Ins. Co. v. The Superior Court of San Mateo County, 10 Cal. App. 4th 1282 (1st Cal. Ct. App. 1992). In Liberty, a worker sued his employer’s workers’ compensation carrier for failure to provide coverage after the worker fell down an elevator shaft, rendering him permanently disabled. In seeking workers’ compensation benefits, the plaintiff copied Liberty’s Chief Operating Officer on correspondence. Subsequently, the plaintiff sought to depose the Chief Operating Officer, who moved for a protective order. The trial court allowed the deposition, but the appellate court reversed the trial court’s decision, finding it “an abuse of discretion to withhold a protective order when a plaintiff seeks to depose a corporate president, or corporate officer at the apex of the corporate hierarchy,-- absent an exhaustion of less intrusive discovery methods.”
The court in Liberty concluded that a plaintiff may not “leapfrog” to the apex of a corporation without first seeking discovery from lower level employees. The court further reasoned that allowing “apex” depositions to appear before less intrusive discovery methods are exhausted creates a “tremendous potential” that parties may abuse the discovery process, which in turn may lead to unnecessary harassment.
Ultimately, the Liberty court suggested guidelines that it believed should be followed when the deposition of an apex official is requested. It reasoned that the trial court should first determine whether the plaintiff has shown good cause that the corporate officer has unique or superior personal knowledge of discoverable information. If good cause has not been shown, the trial court should grant the motion for protective order, and require the plaintiff to conduct discovery through less invasive means. These methods could include deposing a lower level employee with appropriate knowledge, directing interrogatories to the corporate officer to learn the extent of the officer’s knowledge, or utilizing a deposition by written questions. After these methods are exhausted and the plaintiff makes a colorable showing of good cause, the trial court may lift the protective order.
Unfortunately, the apex doctrine has not been expressly adopted by Florida courts. In Citigroup v. Holtsberg, 915 So.2d 1265 (Fla. 4th DCA 2005), a fraud case, the plaintiffs sought to depose the current and former chief executive officers of Citigroup. The defendants moved for a protective order invoking the apex doctrine, but the Fourth District concluded that Florida had not adopted the apex doctrine and that only the Supreme Court could adopt such a doctrine as it would arguably conflict with the liberal discovery rules of Florida.
While this potentially makes it more difficult to quash an apex deposition in states such as Florida, it does not mean that plaintiffs’ attorneys can improperly seek the depositions of apex officials. Rule 1.280(c) of the Florida Rules of Civil Procedure gives the trial courts broad discretion in overseeing discovery and the power to limit discovery in order to protect a person or party from annoyance, embarrassment, oppression, or undue burden or expense. Motions for protective order should not only cite to Rule 1.280(c), but should also remind the court of the tremendous potential for abuse and harassment associated with the depositions of apex officials and inform the court of all pertinent facts which suggest that the deposition is being taken for improper purposes.
In addition, motions for protective order should be accompanied by an affidavit executed by the apex official denying any knowledge of relevant facts. As cited by the court in Citigroup, states that have adopted the apex doctrine require the party seeking a protective order to file such an affidavit. While there is no requirement to file a supporting affidavit, doing so will alert the court of the lack of knowledge possessed by the apex official, potentially leading the court to inquire further regarding the goal of the deposition, and ultimately increasing the likelihood that a protective order will be granted.
Although Florida does not recognize the apex doctrine and the Florida Rules of Civil Procedure permit liberal discovery, plaintiffs should not be allowed to undermine the discovery process by attempting to conduct the depositions of apex officials for the sole purpose of harassing the defendant to pressure them into a settlement. When faced with a notice for such a deposition, defendants need to establish that the official has no knowledge of any relevant facts and that the information sought can be obtained through other less intrusive means. Most importantly, defendants must continue to work to convince the court in Florida and other similar states that protection is needed utilizing principals found in Rules such as Rule 1.280(c) of the Florida Rules of Civil Procedure. Although difficult, it is possible to have a court limit or prevent an apex deposition even in Florida, and due to the potentially significant impact of such discovery at trial, such relief should be vigorously sought.
For more information on this article, please contact Albert Rodriquez at, [email protected]