Understanding The Ground Rules for an Apex Deposition Is Critical

Those who have been in the crosshairs of an Apex deposition – where one party in a lawsuit seeks to depose the opponent’s president and/or CEO – understand the drama and tension that can result from such a legal maneuver.

Immediately, both sides must up their game because one party is attempting to strike a mortal blow to the case of their adversary. With stakes this high, it’s critical to know some ways to protect your corporate executive from unreasonable discovery or, conversely, argue to the court why an Apex deposition is important and necessary to your case.

Each side faces obstacles from the get-go. For example, a responding party may not know the role of persons in upper management who participated in an investigation relating to the opposing party’s damages or injuries. And the party requesting the deposition may not know the people in upper management who participated in any investigation regarding the plaintiff’s claims.

But legal counsel can remove many obstacles by following a few ground rules of the Apex deposition. Among them:

• Upon receiving notice from opposing counsel that they intend to take an Apex deposition, the opponent’s counsel should immediately notify the client – including the in-house counsel.
• Counsel can take the lead and work with the corporate IT department to undertake a comprehensive search for documents and other information that relate to the specifics of the topic set forth in the notice of deposition.
• Coupled with Rule 30 B 1, which requires a party to give reasonable written notice when intending to take a deposition, the corporate representative may separately be deposed in both their individual capacity as well as in their corporate designated capacity – either at the same time or at different times, which brings its own difficulties.
• Under the current discovery rules, a conference of counsel is required. The meet and confer conference allows parties to identify collaboratively topics that are too broad, too narrow, or not relevant or not proportional to the claims and defenses in the lawsuit.
• After the meet and confer conference, the responding entity must designate one or more witnesses to testify on their behalf.
• The current rules mandate and are attempting to avoid the common scenarios wherein parties disagree about (1) the scope of the topics, and (2) the overall burden of the demands that the notice places on the entity.
• Counsel has a duty to help prepare the witness so they can fully testify on all designated topics on behalf of the entity. This is critical because the designated witness testimony will be binding on the entity regardless of the accuracy or completeness of the witness’s response.
• Even if the documents in the case are voluminous and review of documents would be burdensome, the deponent is still required to review them to prepare themselves to be deposed. Problems can arise when the deponent did not reasonably review the documents so that they can say that they used material reasonableness to identify and find the information.
• In conference, counsel should go over the specifics of what topics will be included, as well as all logistics of setting the deposition, and counsel should try to identify any likely problems and to be discussed with the court. Hopefully, they will reach a mutual agreement about the scope of the deposition before it occurs.
• Among other things, counsel should prepare a set of all prior discovery written responses and documents (including videos or other electronic recordings) which have already been produced by the client in discovery. The corporate representative will need to be prepared and able to know what information has already been given to the opposing party – privilege material needs to be identified and segregated.

Remember, pursuing or defending an Apex deposition involves numerous strategies, lots of pressure and emotion – particularly from the deponent. But familiarity with the basic ground rules will go a long way to keep the tension and emotion in check, and hopefully provide the desired outcome in the deposition.

Now it’s showtime – time to show how the company failed to follow its own policies, procedures and stated mission. Or defend your client against such allegations. Good luck!