Apex Depositions Bring High Tension and Drama to Business Litigation

Great drama and tension come together when one party seeks to depose its opponent’s President or CEO. In the profession, we call this an Apex deposition. It is one of the most critical and trying moments in business litigation.

An Apex deposition involves going after an opponent’s CEO with the full force of the courts’ subpoena power and discovery rules with the goal of decapitating the opponent’s case.

The mere filing of a notice to take the deposition of your opponent’s highest officer sets off an immediate and inevitable flurry of opposing motions. The first motion(s) will try to stop the Apex deposition process from going forward altogether. The stakes are high. Legal costs rise quickly.

It’s important to note that many courts have adopted a doctrine allowing Apex depositions only when extraordinary circumstances are shown. Courts have placed the burden on the party seeking the Apex deposition to show they meet special threshold criteria.

Counsel on both sides must master the strategies essential to navigate the gauntlet of an Apex deposition’s motions and emotions. Counsel must master the ins and outs of the courts’ rules, procedures and mandatory conferences. Counsel must select and calm both the corporate witness as well as the corporate client.

To be able to convincingly explain why their request meets the threshold standards required to go forward with an Apex deposition, “initiating” counsel must know the case law in their jurisdiction, intimately. For months before making their Apex request, counsel will have worked and planned the goals of their Apex deposition request as well as their arguments to convince the court to allow them to go forward.

Defending counsel must know the multiple strategies to protect and narrowly limit the examination of their corporate executive. Judges place the burden on the “opposing” party to demonstrate why the court should issue protective orders that would prevent the corporate executives from undue burden or expense during discovery.

Why seek an Apex deposition? Counsel may go on the offense in hopes of gaining some advantage to weaken an opponent’s case, to override “good” testimony from lower employees, or, better yet, to land some “mortal blows” to their opponent’s case. Perhaps even finding some “smoking gun” testimony designed to generate significant damages.

One goal may be to leverage the cost and time away from the executive’s work routine in order to obtain a better settlement. The amount of work a top executive must do to prepare for an Apex deposition is considerable.

The corporate witness has a duty to locate and gather all of the information and knowledge that others in the company may have – information typically well beyond the corporate executive’s own personal knowledge. This takes hours of the executive’s time to investigate as they talk to other employees in the company, locate and review all corporate documents relevant to the lawsuit, and meet with counsel and educate themselves as to the matters specified in the deposition notice.