This addresses the August 7 article, “Deposing the Giant Under the Apex Doctrine.” The so-called “apex doctrine” is another of those tools first created by the defense industry to stymie discovery of evidence. Years ago the Defense Research Institute did something similar by fabricating a theory about “the sanctions tort.” Here’s what two distinguished federal jurists had to say about the proposition that someone is too important to be deposed:

“I am befuddled by an argument that status alone creates a different set of rules for important people. … In my view, important people are subject to the same rules as the working man or woman.” Hon. Donald W. Molloy, Order, Phillips v. General Motors Corp., No. 98-168 (D. Mont. Feb. 24, 2000), Doc. 69 (Molloy, J.).

“The Court is unpersuaded by Defendants’ implication that we have a ‘caste’ litigation system which divides witnesses into classes—a privileged class that must be protected from the inconveniences associated with litigation and everyone else who must put aside private matters temporarily for the administration of justice.” Hon. Clay D. Land, Order, Synovus Trust Co. v. Honda Motor Co., No. 03-140 (M.D. Ga. Aug. 11, 2004) (Land, J.), ECF 104.

Sometimes a high-ranking corporate executive deliberately injects himself into the matter at issue in a case and becomes a crucial witness (e.g. GM’s Harry Pearce in litigation about GM’s sidesaddle gas tank “CK” pickup trucks) or becomes the crucial witness by personally creating the principal defense (e.g. Sergio Marchionne in Walden v. Chrysler). Sometimes a high-ranking corporate executive is merely a material witness, whose elevated status is used to try to block his deposition (e.g. GM’s Robert Stempel, director of engineering when the CK pickup truck was designed, later chairman). Sometimes it is the actual decision makers regarding the matter at issue who most need to be deposed, rather than some designated trained mouthpiece.

The strictures of O.C.G.A. §9-11-26(c) and federal Rule 26(c) are wholly sufficient to address any supposedly “abusive” discovery. But merely training a corporate executive to “proclaim” in an affidavit that she or he has “no knowledge,” as the author of the subject article suggests, should not alone be sufficient to defeat a requested deposition.

The article’s author submits that “sometimes these depositions are necessary, but often they are not.” That’s what trial judges are for: to exercise discretion, based on the facts of a particular case, and decide the question.

James E. Butler Jr.