The Apex Doctrine Does Not Preclude Taking the Depositions of Top-Level Executives and Agency Heads with Personal Knowledge of Information or Communications Material to the Action

Corporate Defendants may try to block the depositions of top-level executives and agency heads on the basis that the witness is an “apex witness.” The general rule in California and federal court is that agency heads and other top governmental executives are not subject to deposition absent compelling reasons. “The general rule is based upon the recognition that an official’s time and the exigencies of his everyday business would be severely impeded if every plaintiff filing a complaint against an agency head, in his official capacity, were allowed to take his oral deposition.” Contractors’ State License Bd. v. Superior Court (2018) 23 Cal.App.5th 125, 131. Further, top-level corporate executives are generally considered apex witnesses for the same reasons. See Liberty Mut. Ins. Co. v. Superior Court (1979) 10 Cal. App. 4th 1282.

When seeking to depose an apex witness, the party seeking the deposition (oftentimes the Plaintiff[s]) must show that compelling reasons exist for permitting the deposition. Contractors, supra, 23 Cal.App.5th at p. 131. First, the deposing party must show that the witness has direct personal factual knowledge pertaining to material issues in the case. Second, the deposing party must show that the information to be gained in the deposition is not available through any other source. Westly v. Superior Court (2004) 125 Cal.App.4th 907, 911. However, the deposing party is not required to accept as true the testimony of other witnesses regarding communications involving an apex witness – especially where other witnesses have foggy memories.

In cases involving corporate fraud where decisions made at the highest level ultimately affect the bottom line, top-level corporate executives (apex witnesses) may very well have factual personal knowledge sufficient to justify taking a deposition. Procuring this showing of personal knowledge through early discovery will serve to better your chances of obtaining critical apex witness depositions, which will almost surely face a Motion for Protective Order.


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