GC Avoids Deposition With “Apex Doctrine”

A recent ruling from the Southern District of Florida rebuffed an attempt by a whistleblower plaintiff to depose the vice president and GC of the company that fired him. The court’s declaration was based in part on the so-called Apex Doctrine, “a common-law creature that shields high-level corporate executives from depositions in cases in which they have little-to-no information about the relevant issues,” explains attorney Todd Presnell. This relatively obscure doctrine, which is separate from any notion of privilege, requires the party seeking the deposition to make the case there is not a less intrusive way of getting the answers it seeks and that the high-level executive has unique first-hand knowledge. In this case, Tillman v. Advanced Public Safety, Inc., the court relied on excerpts from other depositions to conclude on an obvious question that can arise when the Apex Doctrine is invoked: Is this person really at the “apex” of the company hierarchy? The Tillman decision, says Presnell, “offers in-house lawyers, and particularly general counsel, another line of defense when a notice of deposition hits their desks.”