You Can't Simply Say "no!" Almighty Ceo: Georgia's View on the Apex Doctrine and Discovery Abuse

• Publication year: 2022

You Can't Simply Say "No!" Almighty CEO: Georgia's View on the Apex Doctrine and Discovery Abuse

W. Warren Hedgepeth

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You Can't Simply Say "No!" Almighty CEO: Georgia's View on the Apex Doctrine and Discovery Abuse

W. Warren Hedgepeth^*

I. Introduction

Discovery is the process that allows litigants to gather information from the opposing party in a civil lawsuit. Discovery practices differ among states, and each state's discovery laws generally determine (1) the scope and limits of what information can be gathered, (2) how it is gathered, and (3) when it is gathered. Depositions are included in discovery methods and allow parties to ask the deponent questions relating to the case. Depositions are not only expensive but can be disruptive, especially to high-level corporate executives whose time and dedication to their companies should be their primary focus. In some jurisdictions, corporate executives rely on the Apex Doctrine, which may prevent such executives from being deposed or being subjected to other forms of discovery due to their high-ranked position. But would enforcement of this doctrine be unfair to litigants in asserting a claim against a large, profitable corporation?

Certainly, the corporation has a large pocket and may utilize the Apex Doctrine to stall the litigation process in hopes the opposing party will give up and settle. Should this be considered discovery abuse? On the other hand, individual litigants could use this doctrine for the same abusive purpose—to pressure a chief executive officer (CEO) to choose between settling or being deposed. This comment evaluates a recent Supreme Court of Georgia decision in the light of the contemporary Apex Doctrine in other jurisdictions, especially Florida. Further, the broader

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issue of abusive discovery practices must be evaluated when utilizing the doctrine from the perceptions of the high-ranked executive or as an individual litigant.

II. History of the Apex Doctrine

Litigants seeking to depose a company executive is often a tactic "used for intimidation or harassment of the corporate defendant."¹ This fact led to the creation of the Apex Doctrine. The primary purpose of the doctrine is to prevent high-ranking corporate executives from being improperly and unnecessarily deposed. While the doctrine has not been specifically adopted in the Federal Rules of Civil Procedure (FRCP),² state and federal courts have implemented the doctrine to "promote efficient discovery" and "to prevent the use of depositions to annoy, harass or unduly burden the parties."³ Before a court can invoke the doctrine and shield an executive from deposition, the court must consider factors such as whether the executive has "superior or unique personal knowledge of facts that are relevant to the litigation" and whether "the party seeking the deposition [can] obtain that information from less burdensome sources."⁴ Essentially, a high-level executive will be able to seek a protective order to prevent being deposed and will rely on the Apex Doctrine. When relying on this doctrine, the high-level executive will need to establish that (1) he or she qualifies as an Apex-individual, (2) lacks unique, personal knowledge of the issues being litigated, and (3) that other, less intrusive means of discovery have not been exhausted.⁵ Only then will the court issue a protective order. Making these determinations is no simple task, however, as courts must consider numerous factors when deciding to prevent the deposition of a high-level executive.

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A. Who is an Apex Individual?

As an initial matter, a corporation or a high-level executive will attempt to utilize the doctrine to prevent being deposed. This occurs when an opposing litigant seeks to depose such an executive. The first question the court must address is: who is considered "high-level" so as to render the invocation of the doctrine proper? The doctrine protects high-level corporate officials, and many courts assume that an individual "in a chief officer position, a board director, or a president" automatically qualifies as an Apex employee—even former or retired executives can qualify as such.⁶ This list of positions is not exhaustive, and even lower-level employees may invoke the doctrine. To that end, courts assess "the size of the company as well as the ranking and responsibilities of the employee."⁷ Considerations of company size include "whether the company is large enough to have executives who are not involved in the day-to-day management of the business."⁸ Assuming the company is large enough, federal and state courts evaluate whether the executive "is typically removed from the subject matter of litigation" and whether a lower-level employee would have better information regarding the disputed issue.⁹ By contrast, district courts have held that CEOs of relatively small companies involved in the business's day-to-day operations and who have direct knowledge regarding the issue in dispute will not be shielded under the doctrine.¹⁰

The Apex Doctrine has been applied not only to corporate executives but also to high-ranked government officials.¹¹ The Apex Doctrine has been used to protect deposing "staff members of the Executive Office of the President, governors, agency heads, former commissioners, chiefs of

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staff for department heads and parole board members."¹² Ultimately, the general goal of the Apex Doctrine is to prevent abuse of discovery when executives or high-ranked government officials do not possess the best sources of information about the disputed issue.

B. In What Circumstances Does the Apex Doctrine Apply to Non-Government Executives?

In jurisdictions that utilize the Apex Doctrine, and upon the determination that a corporate executive qualifies as an Apex employee, the court must first conduct a balancing test to decide whether to invoke the doctrine. The court will balance the burdensome and harassing nature of the deposition against the broad scope of the applicable discovery rules.¹³ The court will assess (1) whether the Apex executive has unique, personal, and relevant knowledge of the subject matter of the issue in dispute and (2) whether the opponent may obtain that knowledge through less burdensome alternatives.¹⁴ If such alternatives exist, the court will typically invoke the doctrine and prevent the deposition.¹⁵

The first issue contemplates the requisite level of knowledge of the subject matter of the litigation so that an Apex executive can be deposed. Generally, "[m]erely having some knowledge of the subject matter of a dispute is typically not enough to compel the deposition of a high-ranking executive."¹⁶ The rationale is that it is improper to depose an executive under the presumption that "he or she has the ultimate responsibility for all corporate decisions or knows corporate policy."¹⁷ Likewise, having "generalized knowledge about the subject matter of the litigation is not enough to justify deposing an Apex employee."¹⁸ Second, if the Apex

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employee is the only source of the information, deposing the employee may be proper.¹⁹ Even then, courts still assess whether the information sought can be obtained through alternative discovery methods such as "interrogatories or depositions of a designated spokesperson or lower ranked employee."²⁰ Ultimately, less burdensome alternatives should be attempted prior to seeking the deposition of an Apex employee, and if no alternative exists, the court will determine whether such deposition should proceed.

C. How is the Apex Doctrine Applied?

Application of the doctrine varies amongst jurisdictions. Typically, when a litigant seeks to depose a corporate executive, the executive or the corporation will file a motion seeking a protective order under the application of the Apex Doctrine.²¹ Under the FRCP, a protective order is allowed "whenever justice requires 'to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.'"²² In support of the motion, evidence must be presented, "typically [through] an affidavit, demonstrating that: 1) the executive is an Apex employee and 2) lacks unique personal knowledge."²³ Upon filing a motion for protection, the opposing party bears the burden of establishing "that the relevant information sought cannot be obtained without the Apex deposition."²⁴ The court will then conduct the aforementioned test

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to determine whether deposition is proper. If the court cannot definitively establish that the deposition is proper, it may implement limitations on the deposition, such as what topics may be discussed and the length of the deposition.²⁵ Ultimately, and as further discussed below, jurisdictions vary when determining when and how to invoke the Apex Doctrine to shield corporate executives. Nevertheless, executives and corporations should utilize this doctrine as a first line of defense to avoid depositions that could disrupt and burden the Apex executive.

D. How has the Apex Doctrine been Adopted?

Federal and state courts that adopt the Apex Doctrine "typically base their decision on existing rules that address unduly burdensome civil discovery."²⁶ For example, the FRCP, along with "many state rules of civil procedure, expressly limit the frequency or extent of discovery that is 'unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.'"²⁷ Courts have reasoned that the rationale to adopt the doctrine is to "promote[] the overall goal of civil procedure rules [and state rules]," and "to 'secure the just, speedy, and inexpensive determination of every action.'"²⁸ Under the Apex Doctrine, the party seeking the deposition must show the purpose is to advance the litigation and not for an improper purpose.²⁹

In Crown Central Petroleum Corp v. Garcia,³⁰ the Texas Supreme Court adopted the Apex Doctrine and stated, "'virtually every court which has...