Insight

Protecting High-level Executives With the Apex Doctrine

The Apex Doctrine, developed to shield high-level executives from inappropriate depositions, is a beneficial asset to lawyers and clients, at least in the states where it’s been adopted.

Apex Doctrine Protects Executives
SC

Sara Collin

June 21, 2022 09:11 AM

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.

Related Articles

SCOTUS Rules in Andy Warhol Fair Use Case


by Sara Collin

Andy Warhol’s iconic work, known for representing well-known objects and images, was the focus of a recent fair use case surrounding possible copyright infringement. A lawyer from a Best Lawyers recognized firm weighed in.

Two images of Prince on orange and purple background

Class-Action Claims to Increase in the Wake of Societal Emphasis of ESG


by Agenique Smiley

Corporate litigators and state lawmakers anticipate a mounting rise in ESG-related issues surrounding class-action lawsuits. One Best Lawyers recognized firm is weighing in with survey data supporting this increase.

Abstract silhouettes of faces in blue, green and beige

Whistleblower Legislation Opens the Doors for More International Claims


by Justin Smulison

An Anti-Money Laundering Act, part of a recently passed Omnibus Budget in the U.S. Senate, is expanding protection for whistleblowers both domestically and internationally.

Shadow figure in spotlight against red and blue brick wall

A New Spin on Continuing Legal Education


by Sara Collin

Attorney Humira Noorestani is launching a program for continuing legal education, one that she’s dubbed the “Netflix of CLE,” allowing lawyers in the U.S. to explore legal knowledge from prominent lawyers around the world.

Hands emerging from computer and cellphone screens

Will Recent Boeing Settlements Create Tailwinds In Corporate Law?


by Justin Smulison

Prominent litigation against Boeing is setting a precedent of accountability, professionalism and commitment among company boards as well as ushering ESG further into the courtroom to help monitor and prevent safety issues.

Recent Boeing Settlements and Corporate Law

Bizarre Murdaugh Case Spotlights State-Based System for Regulating Lawyers


by John Ettorre

The drama surrounding the Murdaugh family case out of a small-town South Carolina court spotlights the need for better system regulations.

Murdaugh Case Spotlights Small-town Court

Prominent 9/11 Lawyer Still Racking Up Awards for Clients


by John Ettorre

Despite 20 years passing since the September 11 terrorist attacks, one lawyer is still working to help families of victims recover compensation.

Prominent Lawyer Helping 9/11 Clients

The Courtroom Climate


by Peter Kolla

Recent decisions across Canada have underscored that courts are wary of usurping legislatures—both provincial and federal—when faced with litigants demanding they do something about climate change.

Factory image with courtroom imagery overlaid

Bringing Down the Hammer


by Joseph Trotti

Thor relied on one weapon, his mighty hammer. General counsel tends to play to their own strengths. What worked for the Viking deity may be a bad idea for you.

Gold plated toolbox with gold tools popping out of it

The Resolution Solution


by John Oh

The pandemic threw sand in the gears of America’s slow-moving trial system, making mediation an increasingly attractive option for plaintiffs and defendants.

Vintage image of man with fists up with yellow backdrop and oversized hand pointing

Chemical Considerations


by David A. Fusco, Laura K. Veith, Tara L. Pehush and Vincenzo R. Chimera

Consumer exposure to a variety of chemicals is increasingly fertile ground for the plaintiffs’ bar, with an array of litigation targeting manufacturers.

Shadowy backlit blue liquid spray bottle

Rise of the Machines


by Michele M. Jochner

New “generative AI” programs have great potential to help attorneys with certain tasks that will make their work more efficient. Yet the use of any new technology must always adhere to strict ethical standards. One notorious recent case shows why.

Illustration of robot thinking

Incendiary Behavior


by Lyssa A. Roberts and Rahul Ravipudi

California’s future will see more frequent wildfires caused by faulty equipment. Litigation tied to recent Golden State infernos shows the way forward.

Mountain range with glow of wildfires behind it

Vanguards of Victory: Best Lawyers: Ones to Watch in Canada 2024


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in Canada™ has been announced, and the lawyers showcased by these awards are rising to the challenge each day as advocates for clients all across the country.

Blue and black background with small squares connected by lines

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

Artificial Negligence


by Gregory Sirico

New AI technology is a marvel, capable of boosting productivity and efficiency across industries of all kinds. But legal marketing teams must tread carefully.

Three animated individuals surrounded by lifesized technology and money symbol

Trending Articles

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

The Long, Short, Thick and Thin of It


by Avrohom Gefen

“Appearance discrimination” based on employees’ height and weight is the latest hot-button issue in employment law. Here’s a guide to avoid discrimination.

Woman stands in front of mirror holding suit jacket

Trailblazing Titans of the Industry: Announcing the 4th Edition Best Lawyers: Ones to Watch® in America


by Best Lawyers

Best Lawyers honor and celebrate these talented, innovative newer lawyers who are trailblazing their way to victories in courtrooms across the country.

Connected web above map of the U.S.

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Pearls of Wisdom: Celebrating 30 Editions of Best Lawyers’ Rankings


by Best Lawyers

In celebration of our landmark 30th edition, Best Lawyers’ leadership explains how the world’s original and most trusted legal awards maintain their esteem, integrity and reputation for excellence among the top legal entities and their clients.

Best Lawyers logo for 30th edition release with gold glitter in background

Vanguards of Victory: Best Lawyers: Ones to Watch in Canada 2024


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in Canada™ has been announced, and the lawyers showcased by these awards are rising to the challenge each day as advocates for clients all across the country.

Blue and black background with small squares connected by lines

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Announcing the 2023 The Best Lawyers in Canada Honorees


by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

IN PARTNERSHIP

Thomson Rogers: Toronto Personal Injury Lawyers


by Thomson Rogers

Since establishment in 1935, Toronto-based firm Thomson Rogers has consistently delivered results for their clients struggling through complex litigation.

Top of a Staircase Featuring Two Large Black Doors with Bookshelves and Chairs on Each Side

The Best Lawyers in South Africa™ 2023


by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

IN PARTNERSHIP

How Long Does a Felony Stay On Your Record in California


by Peter Blair

A felony can remain on your record for life in California. Some felonies qualify for expungement. Learn how to remove a felony conviction from your record in California.

Hand setting bird free out of a guarded fence

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Incendiary Behavior


by Lyssa A. Roberts and Rahul Ravipudi

California’s future will see more frequent wildfires caused by faulty equipment. Litigation tied to recent Golden State infernos shows the way forward.

Mountain range with glow of wildfires behind it

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?