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I.
INTRODUCTION
The Apex deposition doctrine has become well-known to corporate counsel and to private practitioners who represent companies in liability litigation. The Apex doctrine generally holds that, before a plaintiff is permitted to depose a defendant company's high-ranking corporate officer (an "Apex" officer), the plaintiff must show that the individual whose deposition is sought actually possesses genuinely relevant knowledge which is not otherwise available through another witness or other less intrusive discovery. A number of states and jurisdictions have considered and adopted this doctrine.1
Typically, the goal of an Apex deposition request is not primarily to uncover information reasonably calculated to lead to the discovery of admissible evidence. Instead, the goals are to assert pressure in an effort to extort settlement, and to elicit testimony from a high-ranking officer which is not particularly relevant to the matters at issue, but which is potentially prejudicial in large part for the very reason that the deponent lacks specific knowledge regarding the liability claim. In addition, as illustrated during the cross-examination of former Enron chief Kenneth Lay at his recent Houston trial, corporate executives may not always be disposed to respond judiciously or patiently to abusive and harassing examination by a showboating trial lawyer. Given the lack of relevant knowledge a high-ranking officer is likely to have, the chance that the officer's testimony could be harmful, and the genuine inconvenience and distraction posed by a deposition under such circumstances, companies and their lawyers are eager to prevent Apex depositions from going forward.
Having outlined the relevant context, this article will provide a brief synopsis of the genesis of the Apex doctrine and its application in those jurisdictions in which it is most developed. It will consider as well the strategies for effectively precluding the Apex deposition. With that knowledge, the Apex deposition request can be seized by defense counsel as an opportunity to educate and focus the judge on the real issues in the case, emphasizing the opponent's opportunistic attempt to avoid relevant facts in favor of a high-profile sideshow. An effective response will educate the judge about the actual facts at issue in the litigation, as well as the ability of lesser ranked corporate representatives to provide relevant testimony and discovery information. Such a response...