Successfully Opposing the “Apex” Deposition

by | Sep 28, 2009 | Business & Commercial Litigation, Litigation

A frequent litigation tactic by parties suing a business entity is the so-called “Apex” deposition, i.e. the deposition of a high-ranking corporate officer. Typically, the goal of an Apex deposition is not primarily to uncover information relevant to the litigation. Instead, it seeks to exert pressure in an effort to leverage a better settlement, and to elicit testimony from a high-ranking officer that may be favorable, principally because the high-ranking officer has little or no firsthand information about the issue involved in the case.

Many jurisdictions have adopted procedures for dealing with Apex deposition requests that afford the company some measure of protection against deposition requests made for these improper purposes. While Indiana has not implemented formal rules for Apex depositions, there is plenty of authority existing which allows the company to successfully oppose an Apex deposition request.

Indiana’s Trial Rule 26, which governs the scope and methods of discovery in litigation, allows a party to oppose a discovery request by showing the Court that: “(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought or; (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” This provision in Rule 26 is relatively new, but it was borrowed from the Federal Rules of Civil Procedure. There is a large body of case law under the federal rules describing the limitations a Court may impose on a party seeking to take an Apex deposition, and Indiana judges would likely follow the reasoning from those federal cases.

The federal cases demonstrate that the Apex doctrine was developed to combat the aggressive use of coercive depositions discovery against corporations by requiring that depositions of their highest-ranking corporate officials should not occur without a showing that the corporate official had specific, unique knowledge, and that the opposing party had made an initial attempt to obtain the relevant, necessary discovery through less intrusive means. These “less intrusive means” can include interrogatories, document requests, and depositions of lower ranking officials who have direct knowledge of the matters in issue.

A proper defense against an Apex deposition request is not to attempt to impress the Court with how important the corporate officer is, or how valuable his time is. After all, the judge who is going to rule on the matter thinks he’s pretty important, too. And his valuable time is being taken up with the matter. Instead, opposition to an Apex deposition should focus on the fact that the deposition is likely to add nothing of value to the information exchange between the parties that is supposed to be the goal of the discovery process. An affidavit from the corporate officer as to his duties and responsibilities, and his lack of direct knowledge about the matters in controversy, coupled with informal correspondence from counsel sent to the opposing party suggesting alternative means to obtain the desired information, before the Court’s intervention was sought, is much more likely to be successful. This demonstrates to the Court that the corporate party is not attempting to obstruct the discovery process; rather, to streamline it and make it more efficient.

One of the best ways to oppose an Apex deposition is to offer the opportunity for a Rule 30(B)(6) deposition instead. Under this Rule, the party seeking the deposition simply lists the subjects on which he would like to take a deposition, and leaves it up to the company to designate a person to speak for the corporation on these issues. The designated person must be educated by the company so that he can speak authoritatively on behalf of the company on the subjects listed. It is very difficult for a party seeking an Apex deposition to convince the Court that a Rule 30(B)(6) deposition is not a less intrusive, but more effective way to attain whatever legitimate objectives the deposition seeks. Of course, a Rule 30(B)(6) deposition has its own risks, so it should not be offered lightly.

In summary, the common litigation tactic of seeking an Apex deposition can be effectively countered if counsel properly structures the opposing argument to show that the deposition is unlikely to advance the course of the litigation, but other less intrusive means are available which will serve legitimate purposes.

More about Robert F. Parker

More about Robert F. Parker

Bob is an Of Counsel attorney at BCC and is resident in the firm’s Merrillville office. His practice is concentrated in commercial, professional liability, and personal injury litigation.