An Apex Deposition Isn’t Always Out of the Question

by David Cosgrove

A couple of years back, I took the deposition of a billionaire CEO. Despite almost 25 years of litigation experience, it was a pretty unusual event. The CEO certainly thought so as well. Although most corporate defendants would be smart enough to settle a matter before they let their smug chief make a record for eternity, you may actually find yourself sitting before such an animal with a court reporter some day.

Taking the recorded sworn testimony of the likes of a CEO or CFO is called an “Apex” deposition. Generally speaking, you need to show the court a damn good reason to take one. In Websidestory, Inc. v. Netratings, Inc.1, the Federal District Court provides a helpful and clear review of the law and issues at play in this area. In the underlying matter, the defendant sought to take the deposition of its former CEO, Jeffery Lunsford. The plaintiff, of course, filed a motion for a protective order. In its motion, the plaintiff asserted that because Lunsford was an “Apex deponent” the defendant had to demonstrate that Lunsford had unique personal knowledge of the facts at issue in the case and that other less intrusive discovery methods were inadequate.

The District Court first evaluated Lunsford’s current status as a member of the board of directors and concluded that he was, indeed, deserving of the Apex classification2. Unfortunately for the movant, it had identified Lunsford as a person with relevant information and disclosed relevant e-mails sent by Lunsford. But that did not, of course, conclude the Court’s analysis of the applicable two-prong test.Cosgrove

In this regard, the plaintiff offered to submit a declaration from Lunsford swearing that he didn’t know anything that someone else didn’t know as well. If it were only that easy. The Court rejected the sufficiency of that proffer, noting in part that the plaintiff had failed to respond to the defendant’s request for a Rule 30(b)(6) designation. But the court also admonished the defendant for waiting four months to gripe about that short-coming. In sum, the Court concluded that the movant failed to meet its burden in establishing that a specific harm or prejudice would result from Lunsford’s deposition. Food for thought: Don’t out-lawyer yourself and simply assume an Apex deposition is not to be had.

12007 WL 1120567 (S.D. Cd.)

2Id. at 3.