C-Suiters Can’t Use Apex Doctrine to Avoid Deposition In Washington

The so-called “apex doctrine” has been used in many jurisdictions to shield C-suite executives from being deposed in litigation. Recently, a defendant in a case in the state of Washington, Umpqua Bank, argued that a specific application of the apex doctrine should be adopted.

As reported in The Stoel Rives Appellate Law Blog, a party seeking to depose a high-level officer under apex must first show that the witness has unique firsthand knowledge of the facts at issue, and other less intrusive means of discovery have been exhausted. In September, the Washington Supreme Court rejected the argument, and the apex doctrine more generally.

Umpqua and its loan officer were defendants in a case brought by loan applicants for negligent misrepresentation, fraud, and negligent hiring arising from the alleged misconduct of a loan officer and a deal that the officer facilitated for the applicants. During discovery, plaintiffs sought to depose Umpqua’s president and CEO and three other executives.

Umpqua moved for a protective order, which the trial court denied. Umpqua asked the Washington Supreme Court on appeal to find that its understanding of the apex doctrine applied.

The Supreme Court rejected the appeal, explaining that the version of the apex doctrine that Umpqua argued for would change the burden of proof in discovery motions, contradictory to Washington Civil Rules. It emphasized that Washington’s Civil Rules prevent the harms addressed by the apex doctrine, and concluded that absent the apex doctrine, Umpqua had the burden of establishing that good cause existed to limit discovery, which it failed to do.