Defending Against Requests for Taking Depositions of Apex Witnesses

An "Apex Witness" is the person that sits at the highest level of a large organization, such as the Chairman of the Board, President of the Company, or Chief Executive Order. Most courts throughout the country recognize that deposition notices directed at an official at the apex of a company creates tremendous potential for abuse or harassment. Celerity, Inc. v. Ultra Cleaning Holding, Inc., 2007 WL 205067 (N.D. Cal. 2007). As such, it is prudent to file a Motion for Protective Order to prevent the deposition of the apex witness, especially when it is clear that there are other less intrusive means of obtaining the same discovery.

A generalized claim that a "corporate president has ultimate responsibility for all corporate decisions or has knowledge of corporate policy is insufficient to establish that the corporate president has unique or superior knowledge of discoverable information."In re El Paso Healthcare System, 969 S.W.2d 68, 74 (Tex. Ct. App. 1998). The Court in AMR Corp. v. Enlow, 926 S.W. 2d 640, 644 (Tex. App. 1996) has held "testimony that a chairman of the board would have ultimate authority over any policy by virtue of his position is nothing more than a simply recognition that the highest-ranking corporate officer of a corporation has ultimate responsibility for all corporate decisions."

When determining whether to allow an apex deposition, the Court should consider the following:

(1) Whether or not the high-level 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, such as Interrogatories and Depositions of lower level employees.

Affinity Labs of Texas v. Apple, Inc., 2011 WL 205067 (N.D. Cal. 2011).

In our practice, Kring & Chung has successfully suppressed requests for depositions of apex level employees by the filing of a Motion for Protective Order. This shifts the burden to the requesting party to demonstrate to the Court why the deposition of the high-level official is necessary, that the high-level individual has unique knowledge, and why the evidence cannot be obtained through less intrusive means. One added benefit is that if the requesting party is forced to oppose a Motion for Protective Order, the motivations for the deposition will be revealed.

In defense of the Motion, reasonable alternatives should be provided such as offering the deposition of lower level employees who may actually have more knowledge of the facts and issues at hand. Offering a reasonable solution should work to increase the odds that the Court will grant the Protective Order.

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