Earlier this month, a case out of Georgia made legal headlines after its Supreme Court refused to allow the application of the “apex doctrine” to limit the deposition of high-ranking corporate officials. In General Motors, LLC v. Buchanan, et al., the plaintiffs had attempted to depose General Motors’ CEO in a wrongful death suit. In response, General Motors sought a protective order barring the deposition, citing the apex doctrine. However, the Court expressly rejected the application of the doctrine, noting that it was in fact a federal court-created rule of discovery that did not apply under Georgia’s broader scope of discovery rules.
But what is the “apex doctrine”?
As noted in the General Motors case, the apex doctrine is aimed at shielding high-ranking employees, such as CEOs, CFOs, COOs and CIOs, from improper, unnecessary or abusive depositions. The doctrine can also apply to high-level government officials. In essence, the doctrine provides courts with a framework for determining whether good cause exists to forbid or limit the deposition of a high-ranking corporate executive who lacks personal, unique knowledge of facts relevant to the litigation.
“The apex doctrine helps protect the business from disruption,” explains Brent R. Owen, a partner at Squire Patton Boggs LLP in Denver, Colorado. “It mitigates the other side’s ability to use abusive discovery as a litigation tactic on its own by ensuring that the other side cannot drag high-level executives into every lawsuit the company faces.”
Concretely, Owen stated that the apex doctrine is the right tool where a party seeks to depose an executive that does not have any personal information about a dispute. He observed that it applies to protect a high-level executive in the following circumstances:
- The executive does not know about the particulars of the dispute;
- The information sought from the executive can be obtained from a different witness;
- The information sought can be obtained through alternative discovery—including written discovery; or
- Sitting for the deposition will cause a severe hardship for the company.
As seen in the recent General Motors case, not all states have adopted the apex doctrine. Owen clarified, however, that while this may be the case, because many states have adopted rules of civil procedure that mirror the Federal Rules of Civil Procedure, courts in those jurisdictions may find the apex doctrine persuasive.
Owen, who handles high-stakes litigation, including class action disputes and bet-the-company litigation, and specializes in representing energy, retail and mining clients, has used this tool as part of his arsenal: “I have invoked the apex doctrine to keep executives of my clients from having to sit for a deposition (and prepare to testify at a deposition) where the executive should not be subject to that discovery.”
You can read the full text of the General Motors decision here.
Brent R. Owen has been listed since 2021 in Best Lawyers: Ones to Watch in America for Energy Law.
Sara Collin is a Quebec-based lawyer, specializing in legal writing, editing, research and translation throughout Canada.