Apex depositions occur when a party seeks to depose an individual at the top of a corporate hierarchy. Apex depositions often provoke disputes as corporations almost uniformly object to their occurrence. Some argue apex depositions are an abusive discovery tactic used to leverage settlement, while others allege they are a legitimate means to reveal discoverable information. Regardless of your position (which may vary depending upon the facts), apex depositions are engendering increasing interest, both for attorneys and corporate clients.
Many jurisdictions have adopted a unique test called the Apex Doctrine to examine the permissibility of apex depositions. This doctrine balances the interests served by permitting an apex deposition with the interests served by precluding the deposition. This balance has been distilled to consideration of the following factors: (1) whether the executive has unique personal knowledge of the facts at issue in the case; (2) whether the information sought from the executive can be obtained from another witness or through an alternative discovery method; and (3) whether sitting for the deposition is a severe hardship given the executive’s obligation to the company.
