Two recent legal decisions within a few days highlight the uncertainties surrounding the controversial apex doctrine, a legal concept that shields high-ranking corporate executives from being deposed in civil lawsuits. The apex doctrine aims to prevent plaintiffs from using depositions as a strategic tool to harass executives for purely tactical reasons. It treats top corporate executives as a special class of witnesses, recognizing the unique value of their time and energy. The application of the apex doctrine can vary among federal circuits and state courts, creating inconsistencies in its use.
In a recent Florida case involving Tesla CEO Elon Musk, the apex doctrine was successfully invoked. The lawsuit, brought by the estate of a deceased teenage passenger, sought to depose Musk regarding a call he made related to a fatal Tesla crash. Musk, claiming no recollection of the call, convinced the court that the deposition would serve no purpose other than to harass and burden Tesla.
In contrast, in an antitrust class action against Microsoft’s $69 billion purchase of Activision, the court rejected the use of the apex doctrine. The video gamers challenging the deal sought to depose Microsoft CEO Satya Nadella, and the court ruled that the plaintiffs were entitled to question Nadella as he had unique information as the ultimate decision-maker at Microsoft.
The article emphasizes that the burden of persuasion plays a crucial role in the application of the apex doctrine. In Florida, if a high-ranking corporate official asserts in a sworn affidavit that they have no unique knowledge about disputed issues, plaintiffs must demonstrate why they still need to depose them. In contrast, California federal trial judges require companies and executives to prove why apex witnesses deserve special protection.
While some states have formally adopted the apex doctrine, others have rejected it, signaling a lack of consensus on its parameters. Recent decisions in Washington, Georgia, Colorado, and Pennsylvania have either rejected or questioned the adoption of the apex doctrine, indicating a trend of its declining acceptance. Courts seem increasingly unwilling to extend special privileges to corporate officials in civil suits, reflecting a reluctance to provide additional protection based on rank.
