In Washington, the right to discovery (including interrogatories, requests for production, requests for admission, and depositions) is a key component of the right to access the courts. Discovery, after all, is designed to get all relevant facts of a case out in the open so that issues in dispute can be narrowed and matters can be resolved faster and with less expense. A person may be subpoenaed to attend a deposition and required to answer questions relevant to the subject matter of the litigation.
Nobody really wants to have to sit for a deposition. You might feel as though you are too busy, or that you don’t know anything relevant to the matter, or that you are just too nervous to attend. Unfortunately, in many cases, you will have to attend the deposition or face potential consequences for contempt of court.
However, in some states and some federal courts in this country, being a high-ranking company official can help to insulate you from being deposed. This is known as the “apex doctrine.” The apex doctrine, in jurisdictions where it is recognized, can shield executives from depositions and is meant to protect them from unwarranted harassment and abuses of the discovery process.
In September, the Washington Supreme Court issued its opinion in Stratford v. Umpqua Bank, and officially declined to follow the apex doctrine in our state. In Stratford, Umpqua Bank (“Umpqua”) was sued for negligent misrepresentation, fraud, and negligent hiring, among other claims. The plaintiffs sought to depose three high-level executives, but Umpqua argued the executives had no personal knowledge relevant to the claims, and the apex doctrine should protect them from the being deposed in the matter. Umpqua moved for a protective order, and the trial court denied the request. Umpqua asked the Washington Supreme Court to review the trial court’s denial of their request, and the request for review was granted.
In a unanimous opinion, the Washington Supreme Court upheld the trial court’s decision, and officially established that Washington does not, and will not, follow the apex doctrine. It reasoned that the Civil Rules—the rules that govern discovery issues (among many other things)—already prevent the harms that the apex doctrine attempts to address. Trial courts already have great discretion to limit discovery, including depositions, on a case-by-case basis. Discovery can be limited by a trial court on a number of grounds, including if the requested discovery is unreasonably cumulative or duplicative, or obtainable from a different source that is more convenient, less burdensome, or less expensive.
Further, upon a showing of good cause, a trial court may enter an order to protect a person from whom discovery is sought from annoyance, embarrassment, oppression, undue burden, or expense. To establish good cause for the issuance of the protective order, the party seeking protection must show that the order would prevent the harm sought to be avoided without impeding the discovery process.
The apex doctrine, on the other hand, requires the party seeking to depose the executive to show that the executive “(1) has unique, non-repetitive, firsthand knowledge of the facts at issue in the case, and (2) that other less intrusive means of discovery . . . have been exhausted without success.” The court held that the apex doctrine’s flipping of the burden of persuasion to the party seeking discovery from the party seeking to avoid the deposition conflicts with the Civil Rules and the broad right of discovery they provide.
Ultimately, the Washington Supreme Court opined Umpqua could not rely on the apex doctrine to shield its executives from deposition. Beyond disallowing application of the apex doctrine, the court held Umpqua failed to show that the requested depositions would be duplicative, burdensome or harassing (which, if shown would have allowed the court to limit the depositions), and also failed to show that prejudice or harm would result from the depositions (which, if found, would have allowed the court to enter a protective order). In short, Umpqua’s unsupported argument that the executives lacked personal knowledge and that the information sought was available elsewhere was not enough to shield the executives from deposition.
In sum, because the apex doctrine is not followed in Washington, a corporate executive’s status alone carries no weight when a court must decide whether or not the executive must sit for a requested deposition. However, Washington’s civil rules can, and do, protect everyone (not just upper level executives) from harassing or other inappropriate discovery requests. However, as the Washington Supreme Court highlighted in Stratford, whether or not the protections should be applied is a fact-specific and case-specific determination.