Existing in Tension: Courts Grapple with the Apex Doctrine

• Pages: 23-23
• Date: 01 January 2025
• Published date: 01 January 2025
• Author: Andrea L. McDonald
• Subject Matter: Administrative & Public Law

nother state supreme court has rejected the apex

deposition doctrine, joining the growing jurisdic-

tional split on the discovery tool. The debated

doctrine shields certain high-level executives

from being subjected to depositions. Across the

country, courts have varied widely in their treatment of the

doctrine, cautiously balancing protection from abusive litiga-

tion with open access to justice. While ABA Litigation Section

leaders disagree in some respects, they advise practitioners in

all jurisdictions to use the principles of the doctrine to posi-

tion themselves for success.

In Stratford v. Umpqua Bank, the borrowers brought an

action against their bank alleging negligent misrepresentation

and negligent hiring, among other claims, and they sought

to depose three high-level bank executives. The trial court

rejected the bank’s arguments that the apex doctrine shielded

its executives from deposition and denied its motion for a

protective order. On appeal, the Washington Supreme Court

considered whether the state had or would adopt the apex

doctrine and ultimately joined several states in rejecting it.

The apex doctrine has taken various forms across jurisdic-

tions. Ultimately, it seeks to prevent abusive discovery tactics

and harassment by shielding high-ranking ofcials, those

at the “apex” of a corporate structure, from deposition. In

Stratford, the bank advanced an iteration of the doctrine that

required parties seeking “apex depositions” to rst show that

the witness has a unique, non-repetitive, rsthand knowledge

of the facts at issue and that other less intrusive means of dis-

covery have been pursued unsuccessfully. The court noted that

this shifts the burden from the party resisting discovery to the

party seeking it, placing the doctrine in tension with broad

rights to discovery. This conict with the civil rules led the

court to reject the doctrine.

The bank claimed that the apex doctrine is almost uni-

versally accepted in the federal system. The court disagreed.

Surveying case law on the issue, it found considerable varia-

tion. For example, some courts developed burden-shifting

schemes while others required proponents of the doctrine to

establish good cause. The court observed that ve states had

recently adopted the doctrine, but seven others had rejected

it. Accordingly, the court concluded that “the apex doctrine

is not widely followed; its application is inconsistent and its

acceptance is waning.”

Throughout its opinion, the Stratford court emphasized the

tension between the apex doctrine and the right to discovery.

The court began by explaining that “[t]he right to discovery is

an integral part of the right to access the courts embedded in

our constitution.” Adoption of the doctrine, the court deter-

mined, compromised this right.

Litigation Section leaders disagree on whether the court’s

concern is persuasive. “Even in jurisdictions with the apex

doctrine, I have never seen a litigant improperly shielded

against legitimate discovery of its senior people,” comments

John B. Strasburger, Houston, TX, Co-Chair of the Litigation

Section’s Commercial & Business Litigation Committee. “If

the apex doctrine is properly applied, the parties in discovery

get what they should get.”

But even if the apex doctrine does not prevent discovery,

it might make it more difcult to obtain. “The doctrine does

unfairly shift the burden to the party with lesser knowledge

to establish the facts necessary to obtain an ‘apex’ deposi-

tion,” observes Rudy R. Perrino, Los Angeles, CA, Co-Chair

of the Section’s Corporate Counsel Committee. “While I often

rely on the apex doctrine, I can’t necessarily disagree with the

court’s analysis and conclusion.”

Nonetheless, Section Leaders see value in the doctrine.

“The apex doctrine is an effective tool for limiting wasteful

discovery that is of little or no value,” concludes Strasburger.

“Because apex depositions are extremely expensive and dis-

ruptive, parties seeking them know that it can be a big lever-

age point in creating value in an otherwise low-value case,” he

notes. “Parties should not be allowed to conduct shing expe-

ditions with high-ranking ofcials. While parties have an abso-

lute right to discovery, there should be some requirement to

show that the ‘apex’ deponent has or should have knowledge

of material facts,” observes Perrino.

Despite the Stratford court’s warning, it is unclear whether

the apex doctrine is going anywhere anytime soon. “My hope

is that the doctrine evolves into something that can continue

to be used with less criticism than it has received,” notes

Perrino. Referencing Federal Rule 26(c), Strasburger adds that

“there should always be a balancing of the cost and benet of

discovery.”

“Practitioners shouldn’t forget to look at those arguments

even if they are in a jurisdiction without the apex doctrine. If

you are seeking to apply the apex doctrine to protect your wit-

ness, arm yourself with the law and, more importantly, with

the facts and arguments that support its application,” advises

Perrino. “But if you are seeking an apex deposition, you need

legitimate reasons to lay the groundwork justifying your need

to depose the executive,” counsels Strasburger. “Whether oper-

ating under the apex doctrine or not, whether seeking discovery

or trying to avoid it, a party should be ready to show why it is

entitled to discovery, or why it should be shielded from it.”

Existing in Tension: Courts Grapple

with the Apex Doctrine

By Andrea L. Mc Donald, Litigation News Asso ciate Edito r

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