In Print: Volume 89: Number 6
The Unwarranted Weight of a “Paper Barrier”: A Proposal to Ax the Apex Doctrine
By Amalia L. Lam
89 Wash. U. L. Rev. 1457 (2012)
(PDF)
[I]f Mr. Iacocca has any information, albeit inadmissible as evidence reasonably calculated to lead to the discovery of admissible evidence, he must be required to reveal the same. His prestigious position is an unimpressive paper barrier shielding him from the judicial process . . . . [But] [t]he fact remains he is a singularly unique and important individual who can be easily subjected to unwarranted harassment and abuse. He has a right to be protected, and the courts have a duty to recognize his vulnerability.
Lee Iacocca is one of the most recognizable CEOs in the world, linked with both Chrysler’s successful revival and the Ford Pinto’s unenviable infamy. In Mulvey v. Chrysler Corp., the plaintiffs alleged that a car accident in which they were injured was caused by a design defect in a 1975 Dodge van. The Mulvey plaintiffs claimed that Mr. Iacocca, who at the time of the suit served as Chairman of the Chrysler Board, “in his published biography . . . made certain damaging statements relevant to [Chrysler Corporation’s] liability, and the plaintiffs should now be given the right to explore [Mr. Iacocca’s] knowledge which underl[ied] said statements.” The court, remarking that “discovery ha[d] become an abusive tool in the hands of certain attorneys,” barred the plaintiffs from taking Mr. Iacocca’s oral deposition.
The Mulvey court’s concern—that Mr. Iaccocca’s “prestigious position” rendered him vulnerable “to unwarranted harassment and abuse” by enterprising plaintiffs —was shared by other courts keen to protect high-ranking corporate officers from discovery abuse. Today, some federal courts limit the depositions of high-ranking corporate officers by applying the apex doctrine, although they “stop well short of establishing a rigid rule applicable in all cases.” The apex doctrine is a heightened protection framework courts use to “protect[] high-level corporate officials from deposition unless (1) the executive has unique or special knowledge of the facts at issue and (2) other less burdensome avenues for obtaining the information sought have been exhausted.” As a result, courts applying the doctrine may bar the depositions of high-ranking corporate officers when the party seeking the deposition has not yet deposed lower-level employees or has failed to provide sufficient evidence that the apex officer possesses “unique” knowledge.
This Note examines the variety of ways federal courts have approached apex deponents and the apex doctrine. Part I dissects the relevant Federal Rules of Civil Procedure and summarizes the considerations embedded in apex depositions decisions. Part II reviews cases in which courts have applied the apex doctrine. Part III examines cases in which courts declined to apply the apex doctrine. Part IV analyzes the range of decisions and argues that as applied to corporate officers, the apex doctrine creates the appearance of preferential treatment and unnecessarily complicates the protective order analysis. Finally, Parts V and VI propose that federal courts abandon the application of the apex doctrine to corporate deponents.
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