Plaintiffs’ attorneys often hope to put a famous face on the business end of lawsuits against corporate defendants. The sight of a celebrity from the business world answering uncomfortable questions creates courtroom drama and, sometimes, a “wrong” for a motivated jury to “right.” And while testimony from a high-level corporate executive can be relevant in some cases, in many others the prospect of deposition from a company executive is used as a cudgel to coerce settlements, or a fishing expedition, or as a means to disrupt a corporate defendant’s business operations.
Discovery from apex witnesses is an uphill climb indeed.
Enter the “apex deposition” doctrine, a court-made rule that significantly limits the ability of a party in civil litigation to obtain sworn testimony from a corporate leader. It’s no surprise that lawsuits involving well-known executives in the technology industry have been a fertile source of rulings on this area of the law.
Discovery Should Be Relevant and Proportionate
In federal courts, Rule 26 of the Federal Rules of Civil Procedure defines the permissible scope of pretrial discovery. Very generally speaking, parties in litigation have the right to obtain discovery of any relevant information, proportionate to the needs of the case, that does not unnecessarily burden the party from whom the information is sought.
Per Rule 26(b)(1):
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
In addition to the proportionality principle explicit in Rule 26(b)(1), an additional limit is described in Rule 26(c), which authorizes the trial court to issue orders limiting otherwise permissible discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”
Rule 30(b)(6), which provides for corporate representative depositions, also creates an implied restriction on depositions of corporate leaders: If the party seeking discovery on relevant matters known to someone within the corporation, the preferred route to that information is via the Rule 30(b)(6) witness.
The Apex Hurdle to Discovery
Finally, high-level business executives have one additional weapon to fend off unwanted pretrial discovery: the “apex deposition” doctrine, which is not found in the text of Rule 26 but is widely accepted in federal – and some state – courts. When the apex deposition doctrine is invoked, the party seeking a high-level executive’s testimony must demonstrate that the executive has direct personal information pertaining to material issues in the lawsuit. And, in some jurisdictions, there’s an additional level of protection: Even when the corporate executive is shown to have direct personal knowledge of relevant information, the trial court may still prohibit the deposition if the corporate executive lacks unique or superior knowledge regarding the information.
These are formidable procedural hoops to jump through, and they frequently spell the end of attempts to depose corporate leaders.
The following list of recent cases – each involving well-known titans of the technology industry – demonstrates just how difficult it can be to depose high-level business executives about personal injury accidents, business dealings, and product development initiatives that took place while they were in charge.
In Ceiva Logic, Inc. v. Amazon.com, Inc., No. 19-cv-09129 (C.D. Calif., Oct. 26, 2021), Amazon chief executive Jeff Bezos employed the apex deposition doctrine to block his deposition in a patent infringement case. The court agreed with the plaintiff that Bezos’ likely testimony on Amazon’s business dealings with the plaintiff was unique and based on personal knowledge; however, it wasn’t relevant to any material issues in the case.
In Sanchez v. American Media, Inc., No. 20-2924 (C.D. Calif., May 8, 2023), Bezos attempted to use the apex deposition doctrine to block a deposition in a case that did not involve Amazon at all. It was a defamation action arising from a rather lurid set of facts, in which Bezos was a witness not a party. The trial court did not decide whether Bezos’ mere status as a high-level executive entitled him to the protections of the apex deposition doctrine. The court, setting aside the apex doctrine, said the deposition of Bezos would nevertheless be unduly burdensome to him.
The case of Tesla, Inc. v. Monserratt, No. 4D2023-2075 (Fla. Ct.App., 4th Dist., Jan. 3, 2024), arose from a motor vehicle accident that occurred while the decedent was operating his Tesla vehicle at a speed of 116 miles per hour. According to the complaint, a Tesla service technician deactivated the 85-mph top speed limiting software previously enabled on the vehicle after the decedent complained he could not accelerate over 85 miles per hour. Tesla Inc. chief executive Elon Musk called the decedent’s father to express his condolences; during the call, allegedly, Musk remarked that perhaps the technician should not have removed the limiter.
A Florida appellate court blocked the deposition, reasoning:
Plaintiff has not shown that the existing discovery is inadequate or that Mr. Musk has unique, personal knowledge of discoverable information. The only arguably unique, personal knowledge Mr. Musk may have is whether or not he remembers the phone conversation. Mr. Musk, however, has already twice provided sworn testimony attesting that he does not recall making any statements during the phone call regarding the speed limiter. Under these circumstances, requiring Mr. Musk to sit for a deposition would serve no purpose other than to harass and burden Tesla and disrupt Mr. Musk’s ability to meet his obligations to consumers, stockholders, Tesla’s employees, and other activities integral to his position as CEO.
Last month, in Rodriguez v. Google LLC, No. 20-cv-04688 (N.D. Calif., June 25, 2025), Alphabet (Google) chief executive Sundar Pichai successfully invoked the apex doctrine to block the opposing party’s attempt to call him as a trial witness in an upcoming privacy-related class action. The court remarked that Pichai didn’t have “unique first-hand, non-repetitive knowledge” of the facts; in also questioned the plaintiff’s motives and diligence, given that that plaintiff had not attempted to depose Pichai.
Mark Zuckerberg, chief executive at Meta Platforms Inc. (Facebook), lost his bid to avoid a deposition in In re Meta Pixel Healthcare Litig., No. 22-cv-03580 (N.D. Calif., April 10, 2025). Zuckerberg invoked the apex deposition doctrine, but the court was convinced that Zuckerberg’s role as Facebook’s chief policymaker on privacy-related matters, and his legal obligation to be directly involved in Facebook’s privacy practices under the terms of a Federal Trade Commission consent order, made his expected testimony both unique and valuable. The court limited the topics that could be covered during the deposition, and it limited the deposition to three hours.
Apple chief executive Tim Cook was ordered to sit for a three-hour deposition in Masimo Corp. v. Apple Inc., No. 20-00048 (C.D. Calif., Nov. 16, 2022), a trade secrets appropriation case where it appeared to the trial court that Cook was one of the few Apple employees with direct knowledge of Apple’s relevant business strategies.
Former Apple chief executive Steve Jobs fared better in Personal Audio, LLC v. Apple, Inc., No. 09-cv-111 (E.D. Texas, June 1, 2010), where he successfully invoked the apex doctrine to avoid the obligation to answer written interrogatories:
Although Personal Audio was not requesting an oral deposition of Mr. Jobs, it was asking Apple to obtain information directly from Mr. Jobs, including his personal views and opinions, to fully answer the interrogatory. Personal Audio had other, less burdensome avenues of obtaining this information – i.e., interrogatories or depositions of lower-level individuals, and/or production of documents relating to the conception and development of the accused devices-that have not yet been exhausted.
In Computer Acceleration Corp. v. Microsoft Corp., No. 06-cv-140 (E.D. Texas, June 15, 2007), a patent infringement action, the trial court wasn’t convinced that Microsoft Corp. chief executive Bill Gates possessed superior, unique, relevant information based merely on a series of emails he wrote encouraging engineers to focus on certain performance metrics in upcoming software launches. The court believed that corporate representative depositions and depositions of other Microsoft engineers would yield sufficient relevant information.
The “apex deposition doctrine” might be better-described as the “apex doctrine” because it isn’t limited to depositions at all. The doctrine has been successfully invoked in opposition to other types of pretrial discovery such as answering interrogatories or complying with document production requests. Or to appear at trial. And when parties succeed in obtaining an apex deposition, it is almost always after multiple fact witnesses and corporate representative depositions conclusively demonstrate, to the trial court’s satisfaction, that the information sought from the high-level executive is available nowhere else. Discovery from apex witnesses is an uphill climb indeed.
