The Apex Doctrine: Protection From Corporate Harassment in Lawsuits
Large companies get sued. A lot. It’s often just a part of doing business. From employment law cases, to contract disputes, to injury cases, a company can be involved in multiple lawsuits at the same time. If you are the CEO, or some other higher ranking officer, managing what could be a national (or global) company, you may have no personal knowledge of the facts or circumstances of every lawsuit your company is involved in.
So it may surprise you to learn that you could be hauled into court to give a deposition in any one of those cases. Despite the fact that you are busy managing a global company, and have no knowledge of a random lease dispute in your company’s Tallahassee office, there you are, with a subpoena to appear for a deposition in the lawsuit. Can they do that?
The Apex Doctrine
The Apex doctrine says that the higher level executives in a company cannot be compelled to show up for a deposition, unless it can be proven that they have some personal knowledge of the facts in the lawsuit. The idea is to prevent litigants from deposing every CEO, President, or Executive Director, from harassment. Litigants should not be able to depose high level executives, just to disrupt their schedule, make them travel, or spend money on personal lawyers.
You can imagine a customer upset over, say, an Amazon product, suing and then deposing Jeff Bezos, not because he knows anything about the transaction, but just to pressure Amazon into settling the case.
However, if you are a Florida company you should be made aware that Florida has not actually adopted the Apex doctrine. That means that if you are a CEO (or other higher level executive), you cannot just use the Apex doctrine to avoid being deposed.
Arguing for Protection
You can still argue that you know nothing about the claim, and that the deposition is just being noticed to harass you. In many cases, the Court will protect you from deposition. However, simply claiming the Apex doctrine, with nothing more, won’t keep you from being deposed.
In many cases, if a higher level executive is set for deposition, the executive can put forth a written affidavit, verifying that he or she has no knowledge of the facts of the case. The company can also offer a lower-level executive who may have more knowledge of the actual lawsuit, as an alternative to be deposed.
Often, the party seeking the deposition will have to show that they can’t get the information that they would get in the deposition, any other way. The party will also show that information can’t be gotten through less intrusive ways, such as document requests, or written questions.
Call Pike & Lustig, LLP, at 561-291-8298 to help you with your business or commercial litigation lawsuit. Our West Palm Beach business litigation attorneys can help answer your questions.
Resource:
floridabar.org/the-florida-bar-journal/deposing-apex-officials-in-florida-shooting-straight-for-the-top/
https://www.turnpikelaw.com/dont-overlook-so-called-boilerplate-contractual-provisions/
