The Apex Witness Doctrine: Deposition Protections for High-Level Employees

By Casey Shomaker, Baker Botts L.L.P.

During discovery, the opposing side may send a number of requests, including deposition notices for particular employees at your client’s company.  Oftentimes, discovery targets certain executives or high-level employees (e.g., chief executive officer), in order to create certain settlement leverage. One remedy for protecting these high-level employees is the “Apex Witness Doctrine,” which allows a party to prevent a deposition.

In order to utilize this doctrine, a party must show certain facts first.  The “Apex Witness Doctrine” protects high-level employees from being deposed in cases where the high-level employee:  (1) does not have unique personal knowledge and (2) the information sought can be obtained through less intrusive methods.[1]  Parties opposing a deposition of a high-level employee under the Apex Witness Doctrine may seek a protective order preventing the deposition, but bear the burden of establishing the applicability of the Apex Witness Doctrine.[2]  The apex designation alone is not “a tool for evading otherwise relevant and permissible discovery” and “[w]hen a witness has personal knowledge of facts relevant to the lawsuit, even a corporate president or CEO is subject to deposition[.]”[3]  However, where a high-level employee does not have “unique” personal knowledge and there are less intrusive methods of obtaining the desired information, the Apex Witness Doctrine can protect the high-level employee from deposition.  Since its inception in California state courts, federal courts have applied similar doctrines to protect apex witnesses from deposition, including in patent litigation.

This doctrine is especially useful in patent cases where the key issues will focus on the underlying technology.  High-level employees often do not possess unique, personal knowledge of technical details as they are frequently more focused on the company’s day-to-day business operations.

The Apex Witness Doctrine arose in the California appellate courts in 1992 when plaintiff sought to depose Gary Countryman, the president and chief executive officer of defendant Liberty Mutual, plaintiff’s workers’ compensation insurance carrier.[4]  Liberty Mutual moved for a protective order to prohibit Countryman’s deposition, arguing that plaintiff had no need to depose him and was only seeking the deposition to annoy and harass.[5]  The lower court denied the motion for a protective order and allowed Countryman’s deposition to proceed.[6]  The California Court of Appeals, however, granted a writ of mandate to compel entry of a protective order, finding that “‘apex’ depositions…when conducted before less intrusive discovery methods are exhausted, raise a tremendous potential for discovery abuse and harassment.”[7]  Furthermore, the Court of Appeals held that when a deposition of “a corporate president or other official at the highest level of corporate management” is sought, and the party opposing the deposition moves for a protective order, “the trial court should first determine whether the plaintiff has shown good cause that the official has unique or superior personal knowledge of discoverable information.”[8]  If good cause is not shown, “the trial court should issue the protective order and first require the plaintiff to obtain the necessary discovery through less intrusive methods,” including “interrogatories directed to the high-level official to explore the state of his or her knowledge or involvement in plaintiff’s case; the deposition of lower level employees with appropriate knowledge and involvement in the subject matter of the litigation; and the organizational deposition of the corporation itself, which will require the corporation to produce for deposition the most qualified officer or employee to testify on its behalf as to the specified matters to be raised at the deposition.”[9]  If, after these avenues have been exhausted, the party seeking the deposition makes a showing of good cause that the apex witness knows of information necessary to the case, the protective order may be lifted and the deposition may proceed.[10]

Since Liberty Mutual, certain federal district courts such as the Northern District of California and the Eastern District of Texas have begun adopting versions of California’s Apex Witness Doctrine, including in patent infringement cases.[11]

Who Qualifies as an Apex Witness?

While some high-level officials, including corporate Presidents and CEOs, “represent the quintessential ‘apex’” witness, courts have found that division presidents, EVP, SVP, and CEOs are high-ranking employees who also may qualify as apex witnesses.[12]  In determining whether a witness is an apex witness, courts “look first to the relative position of the proposed witness in the company and within his sub-organization.”[13]  Notably, the central issue in cases addressing the apex witness doctrine has not typically whether the witness qualifies as an apex witness based on title but  rather whether the witness has “unique personal knowledge.”

What is “unique personal knowledge”?

Apex witnesses have been found to possess unique personal knowledge when, after the exhaustion of less intrusive discovery methods, the information sought is not revealed.  For example,  in Adaptix, Inc. v. Alcatel-Lucent USA, Inc., the Eastern District of Texas denied the plaintiff’s motion for a protective order to limit the deposition of its CEO, finding the defendant had shown it was unable  to obtain the necessary information about Adaptix’s transactions with Microsoft and Samsung through other discovery means, including the deposition of Adaptix’s 30(b)(6) witness.[14]

On the contrary, in Affinity Labs of Texas v. Apple, Inc., the Northern District of California denied the plaintiff’s motion to compel the deposition of Apple founder and CEO Steve Jobs, finding that the deposition of other witnesses who could testify about what Mr. Jobs meant when he made his statements, use of interrogatories seeking the reasons why Mr. Jobs made the statements and the identification of Apple witnesses with personal knowledge of those statements, and requests for admissions could be and had been used to gather information about Mr. Jobs’ public statements about the importance of the technology at issue, even though  Mr. Jobs was the only witness who actually made the specific statements to the public.[15]  Furthermore, in Motion Games, LLC v. Nintendo Co., LTD, the plaintiff’s motion to compel the deposition of the defendant’s CEO was denied because any relevant, desired information about the CEO’s public statements regarding novelty of the accused products, a licensing agreement covering the accused technology, and meetings between the plaintiff’s and defendant’s representatives could be, or had already been, obtained through less-intrusive means, including 30(b)(6) depositions and personal depositions of other employees or third-parties.[16]

When are there “less intrusive methods”?

As discussed above, courts require a showing that the party seeking the apex deposition has been unsuccessful in obtaining the information sought thorough less intrusive discovery means, including 30(b)(6) depositions,[17] interrogatories, requests for admission,[18] and personal depositions of other, lower-ranking employees or third parties.[19]

Recommendations

Parties who wish to oppose an apex witness’ deposition should request evidence that the apex witness possesses unique knowledge that cannot be, or has not been, obtained through alternative means before agreeing to present the witness.  If the party seeking the depositions refuses, or cannot present sufficient evidence, a protective order may be sought.

Conversely, those seeking apex depositions should be prepared to identify the unique knowledge the apex witness can testify about and confirm that all other discovery avenues have been exhausted without success prior to requesting the deposition.  At least in some cases, an executive’s public statements relevant to the case, without more, may not be sufficient to justify their deposition.

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Casey Shomaker is an associate at Baker Botts LLP who works on a range of intellectual property matters, focusing primarily on patent litigation and patent prosecution. She can be reached at cshomaker@bakerbotts.com.

 

[1] Apple Inc. v. Samsung Elecs. Co., Ltd, 282 F.R.D. 259 (N.D. Cal. 2012); see also Finisar Corp. v. Nistica, Inc., 2015 WL 3988132, (N.D. Cal. 2015).

[2] Id.

[3] Apple, Inc., 282 F.R.D. at 4.

[4] Liberty Mut. Ins. Co. v. Superior Court, 10 Cal. App. 4th 1282, 1289, 13 Cal. Rptr. 2d 363 (1992).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Because support for the Apex Witness Doctrine is found in the Federal Rules of Civil Procedure, Federal Courts apply federal law on this issue.  In particular, FRCP 26(c) grants district courts the power to protect against abuses in discovery, and the Advisory Committee Notes on FRCP 26 provide that “the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of discovery.”

[12] Apple, Inc., 282 F.R.D. at 4.  See also Adaptix, Inc. v. Alcatel-Lucent USA, Inc., et al., No. 12-cv-00022 (E.D. Tex. 2014).

[13] Apple, Inc., 282 F.R.D. at 7.

[14] Adaptix, Inc., No. 12-cv-00022.

[15] Affinity Labs of Tex. v. Apple, Inc., 2011 WL 1753982, at *15 (N.D. Cal. 2011).

[16] Motion Games, LLC v. Nintendo Co., Ltd., No. 12-cv-00878 (E.D. Tex. 2015).

[17] Finisar Corp., 2015 WL 3988132.

[18] Affinity Labs of Tex., 2011 WL 1753982.

[19] Motion Games, LLC, No. 12-cv-00878.

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