The apex deposition doctrine is a judge-made rule that protects company executives from harassing, repetitive depositions in cases in which the executive has little relevant evidence to provide. Courts applying the doctrine weigh the executive’s involvement in the facts that gave rise to the litigation, ask whether the evidence sought can be obtained from some other source, consider placing protections around the deposition to minimize inconvenience, and in some jurisdictions shift the burden to the deposing party to demonstrate that the executive’s deposition is really necessary.
In the federal system, the authority for protecting company executives from allegedly abusive or harassing depositions comes from Federal Rule of Civil Procedure 26(c)(1), which provides that courts “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Federal courts cite Rule 26(c) when limiting discovery from high-level executives where the discovery sought can be obtained from a more convenient, less burdensome, or less expensive source.
Priscilla Presley No, Mark Zuckerberg Yes
A paradigmatic case involving the apex deposition doctrine is Elvis Presley Enterprises v. Elvisly Yours, 936 F.2d 889 (6th Cir. 1991), where the Sixth Circuit affirmed a protective order preventing the deposition of Elvis Presley Enterprises CEO Priscilla Presley, the former wife of Elvis Presley. The plaintiffs were able to demonstrate that Priscilla Presley “had virtually no personal knowledge of the facts” giving rise to the litigation prior to filing suit.
Courts applying the doctrine weigh the executive’s involvement in the facts that gave rise to the litigation, ask whether the evidence sought can be obtained from some other source, consider placing protections around the deposition to minimize inconvenience, and in some jurisdictions shift the burden to the deposing party to demonstrate that the executive’s deposition is really necessary.
Corporate executives don’t always win these discovery disputes, however. The Georgia Supreme Court declined to block the deposition of General Motors’ chief executive Mary Barra in a wrongful death case involving GM’s Chevrolet Trailblazer vehicle. The Georgia case is also noteworthy due to the state supreme court’s refusal to create special procedural protections for company executives whose testimony is requested during pretrial discovery.
Very recently, in Kadrey v. Meta Platforms Inc., No. 23-cv-3417 (N.D. Cal., Sept. 24, 2024), a federal district court in California turned back an objection to the deposition of Meta CEO Mark Zuckerberg in litigation arising from Meta’s alleged use of copyrighted works to train its generative artificial intelligence technologies. The court ruled that an apex deposition was justified because, among other things, the plaintiffs made a showing that Zuckerberg directly supervised the company’s AI products and was “the principal decision maker” concerning key aspects of their development.
Along the way, the court, in a footnote, remarked that Meta’s objection to the Zuckerberg deposition had been “all-or-nothing.” In other words, Meta’s first procedural move was to attempt to prevent the deposition from occurring at all.
But Meta had other options. It could have sought to limit the Zuckerberg deposition to fewer than the seven presumptive hours provided by Rule 30. It could have requested restrictions on the subjects to be covered. And it could have insisted any deposition of its CEO be conducted at a time and place convenient to its executive. Or that the deposition be conducted remotely. And Meta may still request these sorts of limits on the Zuckerberg deposition at some subsequent point in the litigation.
Deposition of Taiwan Exec Will Be Remote
The availability of a remote deposition can be an important factor in any procedural dispute where convenience, efficiency, expense, travel distances, and burden to litigants are relevant considerations. This point was recently made in Largan Precision Co. v. Motorola Mobility LLC, No. 21-cv-9138 (N.D. Cal., Dec. 30, 2024), a patent infringement case in which Taiwan-based Largan Precision was resisting the proposed deposition of its chief executive in the district – the Northern District of California – where Largan Precision had filed suit. Turning back the claim that a proposed deposition was harassing and unnecessary, the court concluded that Largan Precision’s CEO possessed enough relevant personal knowledge of the facts underlying the case to justify taking his deposition.
However, the court added protections for the executive. The deposition could only last two hours. And the deposition must be conducted remotely via videoconference – unless Motorola Mobility was willing to travel to Taiwan to conduct the deposition in person.
The Largan Precision case is a prime example of the judiciary’s embrace of remote technologies to address claims of inconvenience or undue burden during pretrial discovery. Whether it’s the need to take a deposition before the discovery deadline expires, to accommodate legitimate health concerns, to minimize the expense of deposing parties in far-flung locales, or merely to expeditiously advance litigation when in-person court reporters are in short supply, remote depositions will be one of the first options considered by courts in any disputed matter. Creative litigators should always consider the possibility of taking depositions remotely whenever court rules or case precedent – such as the apex deposition doctrine – make relevant considerations such as convenience, efficiency, travel distances, or expense.
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