July 16, 2025 • 37 mins
You say you want a deposition?
Plaintiff attorneys often request and are sometimes successful in deposing corporate CEOs and other chief executives. But there are many times when defense attorneys want to spare the C-suite from what can be high-risk and time-consuming exercises for someone whose knowledge or expertise may have little or nothing to do with the facts and issues in a case.
In this episode, I talk with Rachel M. Lary, a litigator with a nationwide practice at Lightfoot, Franklin & White, about the Apex Doctrine—a legal principle that protects high-ranking executives from being deposed unless certain conditions are met. Rachel explains how courts weigh an executive’s actual knowledge of a case, the availability of less intrusive discovery, and how judges have ruled on the doctrine around the country. (Her firm's technologist, Sam McAllister, created an interactive map showing state-by-state treatment of the Apex Doctrine. We interviewed Sam in 2023.)
Listen in and you will see why Fortune 500 companies rely on Rachel to represent them as national litigation counsel. I appreciate her sharing her insights on the podcast. I also appreciate that Rachel agreed to give a video tour of her remarkably neat office, which is what she thought I requested. I have a degree in communication, and maybe I should brush up. Rachel is both knowledgeable and a good sport.
As always, if you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com.
Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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If you have comments or want to get involved in one of our projects, drop me a note at Editor@LitigationConferences.com.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Tom Hagy (00:03):
Welcome to the Emerging Litigation Podcast.
I'm Tom Hagy, longtimelitigation enthusiast, editor,
publisher and now podcaster.
I'm founder of HB Litigation,which is now part of Critical
Legal Content, a business Ifounded in 2012 to serve as a
content marketing department forlaw firms and litigation
(00:24):
service providers.
And now here's today's episode.
If you like what you hear,please give us a rating.
If you want to reach me, pleasecheck out my contact
information in the show notes.
Let's start this episode fromthe perspective of a plaintiff
attorney litigating against amajor company.
(00:46):
This defendant has vastresources and thousands of
employees.
They've got a whole bunch oflawyers, they've got anxious
shareholders and a veryattentive board of directors.
Now the plaintiff wants todepose as many executives as
possible, including those at thetop, including the very top,
the chief executive officer.
So why?
(01:07):
After all, CEOs are kind of abig deal.
For many attorneys, though, aCEO deposition can mean an
opportunity to obtaininformation you can't get
anywhere else, or expose acompany-wide strategy or better
understand their decision-making.
They could expose a disconnectin the company's defense, so
(01:27):
maybe there's a need toestablish an organization's
culture, but can't somebody elsedo that by requesting a
high-level deposition?
What else might the plaintiffattorney be doing?
Are they trying to signal theseriousness of the case or is it
a matter of getting press?
Now look at this from the otherside, from the perspective of
the CEO and a defense attorney.
This isn't a hypothetical.
(01:48):
High-profile CEOs like MarkZuckerberg or Tim Cook or Elon
Musk have been summoned totestify in major suits involving
high-stakes antitrustallegations or battles over
intellectual property, and theirtestimonies have sparked
extensive media coverage.
They've ended up setting legalprecedents and they've
(02:10):
influenced public perception ofthe companies.
But there are a lot oflesser-known leaders who find
themselves on plaintiffattorneys' wish lists and cases
involving everything fromproduct liability to employment
discrimination to regulatoryviolations, and the stakes are
high.
What a CEO says in a depositioncan shift the entire trajectory
(02:31):
of a case.
Of course, defense attorneysfor corporate clients aren't
pushovers.
Their stiff resistancetypically hinges on more than
just protecting their client'stime or reputation.
They build defenses to preventwhat they often claim are
phishing expeditions or attemptsat intimidation, or to get a
CEO to fumble in some way.
Say something that they can.
(02:52):
You know a thread they can pullon.
It may sound inconsistent withsomething else that the company
may have testified to.
Now, central to the defenseattorney's playbook is the Apex
Doctrine.
This is a legal principleinvoked to shield high-ranking
executives from depositionsunless the requesting party can
show that the executivepossesses unique personal
(03:14):
knowledge unobtainable fromother sources.
The doctrine's foundation restson balancing judicial
efficiency with fair access toevidence, and courts across
jurisdictions weigh numerousfactors before compelling such
testimony.
So what exactly are thecontours of the Apex Doctrine?
What hurdles must attorneysclear to convince a judge that a
(03:35):
CEO's deposition is or is notwarranted?
To help us navigate this, I hadthe pleasure of interviewing
Rachel Lary, a partner atLightfoot Franklin White.
She's a seasoned litigator witha specialty in complex product
and business litigation.
She's the right person to talkto.
Her expertise not only spanshigh stakes corporate disputes,
but also encompasses the nuancedtactics required for successful
(03:58):
advocacy in deposition battles.
Her insights will illuminatethe practical realities behind
the Apex Doctrine and thestrategic calculus attorneys
must make.
With that, here is myconversation with Rachel Lary, a
partner with Lightfoot,Franklin and White.
I hope you enjoy it.
P.
S.
What you didn't get to enjoy isa guided tour of Rachel's
(04:19):
extremely neat office, which youcan only see on the video.
So we encourage you to take alook at that.
Or if you're watching the videoright now that'll make no sense
, but you can see how neat it is, and you almost got a tour
because I'm not clear aboutthings.
All right now, here's theepisode.
Well, Rachel Lary, thanks verymuch for joining me to talk
about this today.
(04:39):
Why don't you tell folks alittle bit about yourself and
then we'll dive into the topic?
Rachel Lary (04:43):
I am actually here in Birmingham, Alabama.
I work and have worked my wholecareer at a firm called
Lightfoot Franklin and White.
We are a litigation boutique.
I've been here for about 20years now.
Majority of my practice isproduct litigation, although I
do some business litigation too.
I became interested in the Apexstructure because, as you can
(05:07):
imagine, I had a case.
Tom Hagy (05:08):
Yeah, that has a way of getting a person to focus.
So why don't you give us somebackground on the Apex Doctrine
and what are its objectives?
Rachel Lary (05:16):
So the Apex Doctrine actually is derived
through federal common law.
It's derived from Rule 26, thatRule 26C specifically, that
provides certain protectionsagainst discovery that may be
harassing or embarrassing orunduly burdensome.
And so the APEX doctrine henceits name, apex is to protect
(05:40):
those individuals who are at theapex of a corporation or a
company, c-suite executives orother high-ranking executives,
to protect them againstdepositions that may be
harassing or burdensome.
Given the certain circumstancesover several decades in the
(06:10):
federal system, federal courtsystem is factors through which
the courts will determinewhether or not a protective
order should be issued toprotect against depositions of
executives.
And so there's certain factorsthat they look at, the first
being the obvious is thisdeponent a high ranking official
or executive?
Second being do they have anysort of specialized or personal
knowledge?
(06:30):
Third being knowledge about therelevant facts of the case.
And then, fourth, whetherthere's other, less intrusive
means of getting the samediscovery.
Tom Hagy (06:41):
In other words, are there other lower level ranking?
Rachel Lary (06:43):
employees who may have the same discovery.
In other words, are there otherlower-level ranking employees
who may have the same knowledge?
Tom Hagy (06:49):
So it has to be C-suite.
Do they go by title?
Do they go by number ofemployees?
Or, like you know, I'm the CEOof my company.
I've got five people orsomething.
So how does it work?
Rachel Lary (07:01):
You know, it depends.
So, there's not an exact titlethat you have to have in order
to be to claim that the Apexdoctrine should protect you.
Now, if you the bigger thecompany, the bigger the
organization and the higherranking you are, the more likely
that you may be protectedagainst deposition because you
(07:22):
won't have the knowledge or therelevant facts about the
individual, about the litigationand the individual facts and
claims that are involved in thecase.
So, generally speaking, theknowledge factor is really the
most important factor and so themore knowledge that a high
(07:44):
ranking executive has about therelevant facts of the case, the
more likely they are to bedeposed.
The less knowledge that theyhave about the facts of the case
, the less likely they are to bedeposed.
So really the driving factor isthe knowledge, not necessarily
the title or the number ofemployees.
Tom Hagy (08:01):
That makes sense.
So what's the risk of a CEOgoing in and being deposed or
having to testify?
What's the risk to them?
Rachel Lary (08:11):
Well, I guess it's you know you have the risks are
always associated with adeposition right, especially of
any corporate representativethat they're going to buy in the
company, and then thatcorporation has to live with
that testimony forever.
That, in and of itself, isreally not what makes the what
makes depositions of highranking executives risky.
(08:31):
The risk is simply that theydon't have the knowledge or the
expertise to be able to givereally relevant and good
testimony about the facts of thecase.
The risk is that their job isnot involved in whatever the
facts of the case were.
The risk is that their jobreally is to run that company,
(08:52):
to make sure that theshareholders are happy, and if
they're spending their timebeing deposed in cases for which
they have no knowledge orinformation, they're not really
doing the job that they've beenassigned to do and they start
becoming a professional witnessinstead of running the company,
and so that really is thebiggest risk.
(09:14):
Along with, the plaintiffs knowthat corporations don't like to
have their CEOs deposed for allof those various reasons.
So it becomes really a leveragepoint to try to increase the
value of the case, to try to getthe corporation to settle Again
(09:35):
, just as a pressure point thatplaintiffs like to use.
Tom Hagy (09:39):
Yeah, yeah, when we talked about this earlier, you
know, I see Yoka get up and saya bunch of things that maybe
they had just learned about.
Excuse me, sorry about that,that a CEO can go in and testify
about something they don't knowabout.
Of course they wouldn't talkabout something they didn't know
(10:02):
about, but then there's a riskof them saying I don't know.
Rachel Lary (10:04):
Right, exactly.
So again, when you're fightingto protect a high-ranking
official or CEO by virtue of theAPEC doctrine, what you're
saying is they don't have anyknowledge for the courts to
(10:29):
actually issue the protectiveorder, which generally means
you've got to put for some sortof evidence to meet these apex
doctrine factors, whichnecessarily means you're going
to have an affidavit from thatdeponent, from the high ranking
official, saying I don't haveany specialized or unique
knowledge, so you've got that.
But then if the court says,well, sorry, I think you do, I
think you are going to have tosit for deposition, then from a
(10:51):
litigation strategy, you've gotto weigh the risk between do I
feed this high ranking officialcertain pieces of information so
that they can answer thequestions that the jury is going
to want them to be able toanswer?
Tom Hagy (11:07):
Right yeah.
Rachel Lary (11:08):
And so it's nuanced .
You're having to say and admitmy CEO didn't know this before
this deposition.
But now you've asked for thisdeposition, the court said I've
had to put her up, and so I havenow downloaded that information
to her so that she can answerthese questions.
Because one of the worst things, I think from a jury
(11:30):
perspective, you can do is havea CEO of a company not have
enough information to eitheraccept responsibility where they
need to or help the juryunderstand why the company is
not responsible.
Tom Hagy (11:43):
Yeah, Okay.
So what's the plaintiff'sargument when they want a CEO of
a large?
I mean, we're talking, let'smake it easy, let's talk about a
Fortune 500 company.
You know, just a massivecompany that the only ones I've
known were.
A lot of their time was spent,you know, making shareholders
and investors, you know,satisfied with what's happening
(12:06):
at the company.
So what's the plaintiff'sargument for wanting them to
post?
Rachel Lary (12:11):
Well, setting aside what we've already talked about
, and just for leverage purposesand purposes.
You know they wanted again totry to create pressure and to
try to get those.
What's better than a soundbitefrom the CEO right?
Tom Hagy (12:27):
Right.
Rachel Lary (12:27):
So what they say in order to support that the APEC
structure should not apply or isa bad thing, is they really
claim it's an archaic view andit creates a hierarchy.
And what they say is youshouldn't be able to avoid a
(12:48):
deposition just because of yourtitle In fact, I've seen it
being referenced by theplaintiffs as a discrimination
doctrine.
That you're, yeah, that you,that only those most powerful
and most elite and have the mostmoney are the ones who get this
protection.
And how is that fair?
How can you have a, for example, let's say, a single mom who is
(13:12):
a lower level employee, whohappens to have personalized
knowledge about the facts of thecase?
She's not going to get theprotection.
So how in the world is this?
by the mere fact you're a CEO,your time is more important than
a single mom who's just workingto try to support her children
and is going to have to taketime away from her job.
(13:33):
How is that fair?
And what I would say is that'sthe old way of thinking about
the apex doctrine.
So the title alone is not whatprotects that executive from a
deposition.
What protects that executivefrom a deposition.
What protects the executivefrom a deposition is that, as a
result of their high-rankingposition, they lack any of that
(13:58):
relevant knowledge.
That's the distinction.
Tom Hagy (14:00):
Yeah.
Yeah, I can see where adownside.
I mean it'd be hard for a CEOof a large company to get any
kind of sympathy whatsoever.
I would think that's true.
Rachel Lary (14:13):
And you know what the plaintiffs also say is on
that very point.
Well, look, surely the CEO hasthree hours to sit for a
deposition and you know, I'llmake it ease on her, I'll come
to where she is.
Get ease on her, I'll come towhere she is.
And that's also one of theirmain arguments is it's actually
not burdensome because I'm goingto put these limitations on how
(14:37):
this deposition is going to goforward.
But, like those of us wholitigate day in and day out know
that preparing anyone fordeposition is not a three-hour
process.
The deposition itself is threehours, but the amount of prep
time to get that individualready for deposition is really
(14:57):
where the burden comes in oftime and expense.
And again, I keep repeatingmyself but when you also have a
CEO who doesn't have knowledgeand you're considering
downloading certain knowledge,that takes even more time.
So generally the way we haveframed it before is it's not
(15:17):
three hours in this case.
It becomes three hours in everyother case that she or that he
may have to sit for deposition.
She or that he may have to sitfor deposition, and that's where
the burden comes in.
Tom Hagy (15:30):
Yeah, yeah, we'll make it easy.
Come on in, we'll come to them.
Yeah, yeah, I could see it.
Yeah, my nephew gave afive-minute wedding toast and he
took it very seriously and Ithink he probably worked three
weeks on it.
Rachel Lary (15:46):
Right, it was very good, though, well, it takes a
lot of work to make it look easy.
Tom Hagy (15:57):
Yeah, that's right.
So talk about your survey.
You guys are keeping track ofthis across the country,
obviously.
Well, I was going to sayobviously federal, but that's
not even necessarily uniform.
Tell me about your survey.
What states?
What do we say at the federallevel?
Rachel Lary (16:08):
Tell me about your survey.
What states?
What do we say at the federallevel?
So, because the federal courtsare the ones who first created
the Apex Doctrine, so thefederal circuits and, from a
federal standpoint, more ofthose courts recognize,
specifically recognize the ApexDoctrine and specifically
adopted the Apex Doctrine.
(16:29):
The only federal circuit whohas rejected the Apex Doctrine
is the Sixth Circuit, which iscomprised of Tennessee, kentucky
, ohio and Michigan.
So that's the only circuit.
Who's currently said, look,we're not going to adopt the
Apex Doctrine?
So we've got a website thatliterally just has a map that
(16:51):
shows by color code, green beinggood, you've adopted the
doctrine, and red being no,we've rejected it.
And we have both from thefederal courts and then from the
states.
The states, as you can imagine,there's not as many that have
formally adopted the APECstructure.
The last time I checked therewas one, two, three, four, five,
(17:16):
six states Georgia, michigan,florida, texas, california and
West Virginia.
And so again on this websitethat we created really for this
very purpose of tracking thetrends and making sure that we
know what is the most recentcase, that identifies what the
(17:39):
state or that federal circuit isdoing.
And then we've got, as you canimagine, lots of states in
between what they haven'tformally adopted the apex
doctrine, but they also haven'trejected it.
Maybe there's a case wherethey've looked at the some of
these factors, but not all ofthese factors.
Maybe it's a case where theyshift the burden to one party or
(18:01):
the other under the apexdoctrine in different ways than
the apex doctrine requires.
So you're right, it's verydifferent depending on the
jurisdiction and the state thatyou're in.
Tom Hagy (18:16):
Yeah, and in Michigan it can depend on whether you're
in state or federal, I guess.
Then right.
Rachel Lary (18:21):
Absolutely.
Tom Hagy (18:22):
Yeah, okay, unless there was another one there, but
that's the one I caught.
Rachel Lary (18:25):
That was no no, no, that's it, you're absolutely
right.
Okay, there was another onethere, but that's the one I
caught.
That's it, you're absolutelyright.
Tom Hagy (18:30):
Okay, and so if people want to get hold of this survey
, this is not necessarily publichow should they get it?
Rachel Lary (18:40):
I'm happy for them to reach out to me.
It is password protected.
Tom Hagy (18:44):
Yeah, yeah.
Rachel Lary (19:03):
But I'm happy to give that out.
It truly is a great resourcetool if you have a case where
either there has been a threatof your high ranking official
being deposed or they've alreadyfiled the deposition in this,
or, quite frankly, even ifyou're trying to figure out
whether or not you've got.
You are in a state in whichyou're going to have the
protections or not, and thereare certain things you can do to
start moving the needle one wayor the other.
Right.
Tom Hagy (19:22):
All right.
Well, we'll get to that.
We'll get to that point in aminute too.
So so there have been somerecent cases since you and I
started talking about this.
So what can you tell us aboutsome recent developments?
Rachel Lary (19:35):
So one of the most recent is actually involves Mark
Zuckerberg.
Tom Hagy (19:40):
Zuckerberg.
Rachel Lary (19:41):
Yeah, Zuckerberg.
Tom Hagy (19:42):
I'm sorry.
I'm sorry, I thought you saidZuckerberg, I'm not hearing
things correctly.
You please keep going.
Rachel Lary (19:49):
I thought you said Zuckerberg.
I'm not hearing thingscorrectly.
You please keep going.
No, I may have.
(20:14):
Look, that's what I'm not.
I've been known to mispronouncethe last name.
Interesting litigationsurrounding Meta's use of
arguably copyrighted informationto train its AI model.
You may be familiar with SarahSilverman and other comedians
who have sued saying you don'tget to use my copyright
information to then train yourAI model of how to then create a
speech that sounds like me,right, and so, as part of that
litigation, the plaintiff, sarahSilverman, asked requested to
(20:36):
depose Mark Zuckerberg.
See, I almost did it today.
Tom Hagy (20:40):
Yeah, I see.
Okay, I'll keep you straight onthis.
Rachel Lary (20:43):
Okay.
So the question really becamedoes he have personalized or
specialized knowledge about theallegations of the case?
And Meta said no, he doesn'tLook, he's just at the top of
the chain.
You know he knows what's goingon, but no, he wasn't making the
(21:05):
exact decisions.
And in fact you have, as youcan imagine, process engineers,
software engineers underneathhim who really have the
knowledge that these individualsplaintiffs are wanting to seek.
And the court simply said did ananalysis and said no, he's a
chief decision maker, he haddirect control over the AI
(21:26):
initiatives and the programs.
He actually had directsupervision over certain
products.
And so it was actually afederal court, northern District
of California, and they orderedthey denied the motion for
protective order and ordered himto sit for deposition.
So again, you know the trendthat I see while the plaintiffs
(21:49):
like to say that the recenttrend is that the courts are
rejecting the Apex doctrine orfinding that it doesn't protect
a CEO, I think the true trend isjust really doing a deep dive
on again, what information canthey provide?
(22:10):
And so that's really what itcame down to in the Medicaid
there was a reason.
Tom Hagy (22:16):
So I'm sorry, so in that case.
So in that case they said hedid have to sit.
I guess I wonder if that hastaken place.
Rachel Lary (22:23):
I mean yeah, I don't know Well, so the order
was entered at the end of lastyear.
Tom Hagy (22:30):
I'll look for it.
Yeah, because I do rememberthat case, because Sarah
Silverman is ridiculously funnyand the book has a funny, some
funny title, I don't know.
It's something like you knowher life as a bedwetter or
something.
I'm like it's just fun when youhave these sophisticated
(22:50):
arguments coming up and thenthey refer to the actual book
and it's something like that,but not to make fun of that
problem, but anyway, she's veryfunny.
Rachel Lary (23:00):
Yeah so.
Tom Hagy (23:00):
I'll take a look at that one.
There were some other ones too.
Rachel Lary (23:05):
Yeah, so another well-known name Elon Musk.
The before Elon Musk, beforethe administration Elon Musk.
Tom Hagy (23:14):
I'm familiar.
I'm familiar with hismetamorphosis, yeah.
Rachel Lary (23:18):
Yes, this is when he was just running Tesla.
Tom Hagy (23:22):
Right.
Rachel Lary (23:22):
And there was an unfortunate accident with a with
a young man in florida, um,where, unfortunately, um, the
allegation was that the softwarein the tesla um had an issue
that resulted in an unintendedacceleration and unfortunately,
the young, the young man, passedaway.
(23:43):
Um, interestingly, elon calledthe family after it occurred to
give his sympathy andcondolences and, as part of that
conversation, actually said tothe family we're doing an
investigation, we're going tolook into what happened and
whether the policies andprocedures that I expect to be
(24:04):
followed were followed.
And so it was that conversationwith the family that the
plaintiff said was the hook forthem being able to depose him.
And Elon came in and filed anaffidavit saying, number one, he
didn't recall that conversationand, number two, he wasn't
(24:25):
involved in that investigation,involved in that investigation
and that there were other lowerranking employees who were
involved in the investigationwho could give actual
information about what theyfound, if anything.
And the Florida court statecourt granted him the protective
order and he did not have tosit for deposition.
(24:46):
Now a nuance for Florida is,you may recall, they are one of
the states that has officiallyadopted the APEC structure and
in fact, what they did is theythe Supreme Court of Florida
amended their civil rules ofprocedure to specifically add a
section that set forth theparameters and the factors
associated with the APECstructure.
Tom Hagy (25:07):
Okay, all right, yeah, you can.
And the factors associated withthe apex stratum?
Okay, all right, yeah, I meanit's an interesting case.
I mean you can see where hisinstincts were to show
compassion Absolutely, and inthe legal world that's not
always the right thing to do.
And then he says the thingabout the investigation he
brought up the investigation.
The investigation, he broughtup the investigation.
(25:31):
And then also, a guy like ElonMusk is also somebody who is
considered to be an inventor ofthings, right, and you know,
isn't he an engineer orsomething?
So you can see a guy like thatwhere plaintiffs would argue
wait a second, he knows a lotabout these things Absolutely.
Rachel Lary (25:49):
You know, I think there's.
There is always room forsympathy, I believe, in any any
case, where there are tragiccircumstances, there should
always be a means or which thecorporation can offer their
sincere sympathies for thetragic injury or the tragic
death, without necessarilyaccepting responsibility for it.
(26:12):
Right and and?
And so you know that was a, inmy mind, a good thing for him to
want to do.
Tom Hagy (26:20):
Um, it just unfortunately resulted in him
having to argue why he shouldn'tbe deposed right, you told me
when we talked one one of thereasons you became obsessed with
the Apex Doctrine sorry, becameinvolved in the Apex Doctrine
was a case where you had amanufacturer and the plaintiffs
wanted to depose the CEO of thatcompany.
(26:41):
So tell me about that.
Rachel Lary (26:43):
That's right.
It was in Georgia.
Since this case, georgia hasalso passed legislation adopting
the APEX doctrine.
At the time this case waspending they had not, and so the
plaintiffs wanted to depose theCEO of this product
manufacturer and argued reallyvery broadly that because their
(27:08):
claims were a product defectclaim, it involved, as all
product defect claims do, thesafety of the product and this
high ranking official, thisproduct manufacturer had created
a safety program.
Safety program and that wasplaintiff's argument and their
(27:43):
hook for why this executive hadknowledge for which they should
be able to depose him.
Or case in which they have noknowledge about the design, the
development, the manufacturing,the assembly or much less the
details of the actual accidentand how it happened and why it
(28:04):
happened, or any informationabout the investigation that may
or may not have been done bythe corporation about that
accident that she should.
Despite all of that, just theplaintiff said, just because
there was a safety programcreated under that CEO's watch,
(28:26):
they should be able to deposethat CEO watch.
They should be able to deposethat CEO.
Interestingly, because at thetime Georgia had not said one
way or the other whether theywere adopting the Apex Doctrine,
the trial court ignored all ofthose Apex Doctrine factors
which weighed in our favor.
Obviously and this is what someof the state courts do they say,
(28:48):
look, discovery is broad.
And this is what some of thestate courts do said, no, you
(29:10):
can't trial court, you can'tignore those factors, you have
to at least consider them.
And so when it was remandedback down to the trial court,
once the trial court didconsider those what I would say
are very important factors, thetrial court said yeah, I'm going
to issue this protective orderagainst having to make the CEO
sit, issue this protective orderagainst having to make the CEO
set.
(29:30):
It was not long after that thatthe legislator in Georgia
passed a bill that specificallyset out the apex doctrine.
In Georgia and I actually ampreparing for this call I look
just to see how many times it'sbeen applied and whether the
court has said has issued aprotected order or has not.
(29:54):
And, as you can imagine, it'spretty much split down the
middle.
But again, every single time,at least in the published
opinions, the court is reallyrelying on whether or not that
CEO has, or executive hasknowledge that's relevant to the
facts.
Tom Hagy (30:12):
Yeah, it sounds so simple.
Rachel Lary (30:13):
It really does.
Tom Hagy (30:15):
They're going to depose somebody.
Well, do they know anythingabout this?
Maybe?
Rachel Lary (30:21):
Well, you know, it becomes interesting about what
then is relevant.
Is the safety of the productrelevant in a product liability
case and if it is, if you havean executive create a safety
program, does that open them upfor deposition?
And then the corporation isarguably they shouldn't be but
could be in a catch-22 of Idon't want to say anything
(30:44):
publicly or create anything thatmay benefit the corporation at
the risk of being deposed, whichshould not be the way it is at
all yeah, gotcha.
You know what is relevant isreally becomes interesting and,
as you can imagine, theplaintiffs take a really broad
view of that.
Tom Hagy (31:02):
Yeah, they do.
Yeah.
Having having been involved init just from a distance, writing
about it, and having beeninvolved in litigation, I'm
shocked at how broad it can beinterpreted.
It's like what, what now?
Rachel Lary (31:22):
Right, right, you know.
Yeah, safety is a broad topicand if an executive has
information about safety in aproduct defect case, then that
executive is going to be behindevery product that claim.
Tom Hagy (31:37):
Yeah, yeah, because I had sued and then I was
countersued.
You know, come to think of it,I was a CEO of my little company
there you go, the one and onlyOne and only employee.
It was very close to that.
Yes, very close, within 100people.
No, it was it.
I won.
(31:59):
By the way, the other thing isokay.
I didn't ask you specificallyabout this.
We don't have to talk about theSixth Circuit, because it
struck me as that's the oneoutlier about the Sixth Circuit,
because it struck me as that'sthe one outlier.
Maybe I should go back and justtake a look at that case.
You don't happen to rememberwhy that one split off from the
other circuits, do you?
Rachel Lary (32:17):
No other than it's a case that came down in 2012.
And what it basically said wasthat they said the APEC doctrine
allows the court to improperlyassume that the depositions of a
corporate officer would beunduly burdensome.
And what they said is withoutproof of the undue burden.
(32:39):
And so the question I have is Iwonder if the Sixth Circuit
would look at it differently ifthere was proof of the undue
burden, by offering an affidavitsetting forth again all the
factors and reasons.
You know it's not going to beenough to have the title.
It's not going to be enoughthat you've got a busy schedule.
(33:02):
It's not going to be enoughthat you've got hundreds of
thousands of employeespotentially reporting to you.
I mean, you can, that can allbe true, and if you were the one
that helped negotiate theprovision of the contract that
now is at issue, you're going tobe deposed.
Tom Hagy (33:21):
Right yeah.
Rachel Lary (33:22):
Right?
So anyway, it'd be interestingto see what the sixth circuit
would do, however many yearslater now.
Yeah Well, maybe you'll end upthere.
You can keep your your apexcareer going.
Interesting to see what thesixth circuit would would do um,
however many years later now.
Tom Hagy (33:30):
Yeah well, maybe you'll end up there.
You can keep your apex careergoing, um, so what?
Uh, so I want to talk to alittle bit about.
So, well, speaking of that,what if you want to get this in
your state?
Um, and you mentioned you had alot of amicus support, uh, your
case.
So, some pretty big companies Ithink you mentioned in my notes
(33:51):
I think you said Google, google, right?
No, I can't read.
It wasn't Google.
It might've been, but it wasn'tin my notes it was.
It was Coca-Cola, delta, thoseare.
Those are big Georgia companiesand Kia.
Rachel Lary (34:03):
Yeah, and Home Depot.
Tom Hagy (34:04):
And Home Depot.
Rachel Lary (34:05):
Yeah, no, kia is not obviously headquartered in
Georgia, but they recentlyopened a plant in Georgia, but
Delta is headquartered there,home Depot, coca-cola, and you
know this issue is important forlarge corporations like those
because they want to make surethat their executives are going
(34:29):
to be distracted by constantlyhaving to raise their right hand
in cases that they shouldn't bebeing deposed in, in cases
where it really is an effort toharass the corporate officers.
These companies said in theirbriefing Amika's briefing to the
(34:50):
Supreme Court was you know, wechose Georgia, quite frankly,
because it was at least this iswhat Kia said because it was
portrayed to us as a businessfriendly state.
And if you're going to allow adeposition to go forward when
(35:10):
there is no real connectionbetween the allegations of this
case and no involvement or roleof the executive, that's a
problem.
It does create a hugedistraction.
It is a huge burden and theywere pretty vocal about again
(35:35):
their support of some type ofprotection for these high
ranking officials.
Tom Hagy (35:40):
Okay, Now that was in your case where the amicus came
in.
Is that correct?
Rachel Lary (35:45):
Yeah, that was the case in Georgia.
Yes, yeah, and that thenresulted in, and again, the
Georgia legislator passing abill that said okay.
Tom Hagy (35:57):
Yeah.
Rachel Lary (35:58):
Now, you know, we could talk all day about the
tort reform needed in Georgia,but that was one small, small
aspect.
We're still working on someothers.
Tom Hagy (36:08):
I think I've got everything I want.
I think you've explained it allextremely well.
I really appreciate it.
Rachel Lary (36:13):
Yeah, absolutely Well, thank you for having me.
I appreciate that.
I'm surprised to know thatthere may be others who would be
interested in APEX doctrine,but I'm glad to know there may
be some of them out there.
Tom Hagy (36:25):
I'm sure there are.
Well, thanks again.
The Emerging Litigation Podcastis a production of Critical
Legal Content, which owns theawesome brand HB Litigation.
Critical Legal Content is acompany I founded in 2012.
That was a long time ago.
What we do is simple we createcontent that's critical on legal
topics for law firms and legalservice providers.
(36:46):
I believe we even have a catchytagline, which is your legal
content marketing department.
That kind of content can beblogs, papers, they can be
podcasts, webinars and we have agood time doing it and S4HB
litigation.
Well, that's the name underwhich we publish interesting at
least interesting to me legalnews items, webinars, articles,
(37:09):
guest articles, all on emerginglitigation topics.
That's what we do.
Once again, I'm Tom Hagee, withCritical Legal Content and HB
Litigation.
If you like what you hear andyou want to participate, give me
a shout.
My contact information's in theshow notes.
Thanks for listening, thank you.
Welcome to the Emerging Litigation Podcast.
I'm Tom Hagy, longtimelitigation enthusiast, editor,
publisher and now podcaster.
I'm founder of HB Litigation,which is now part of Critical
Legal Content, a business Ifounded in 2012 to serve as a
content marketing department forlaw firms and litigation
(00:24):
service providers.
And now here's today's episode.
If you like what you hear,please give us a rating.
If you want to reach me, pleasecheck out my contact
information in the show notes.
Let's start this episode fromthe perspective of a plaintiff
attorney litigating against amajor company.
(00:46):
This defendant has vastresources and thousands of
employees.
They've got a whole bunch oflawyers, they've got anxious
shareholders and a veryattentive board of directors.
Now the plaintiff wants todepose as many executives as
possible, including those at thetop, including the very top,
the chief executive officer.
So why?
(01:07):
After all, CEOs are kind of abig deal.
For many attorneys, though, aCEO deposition can mean an
opportunity to obtaininformation you can't get
anywhere else, or expose acompany-wide strategy or better
understand their decision-making.
They could expose a disconnectin the company's defense, so
(01:27):
maybe there's a need toestablish an organization's
culture, but can't somebody elsedo that by requesting a
high-level deposition?
What else might the plaintiffattorney be doing?
Are they trying to signal theseriousness of the case or is it
a matter of getting press?
Now look at this from the otherside, from the perspective of
the CEO and a defense attorney.
This isn't a hypothetical.
(01:48):
High-profile CEOs like MarkZuckerberg or Tim Cook or Elon
Musk have been summoned totestify in major suits involving
high-stakes antitrustallegations or battles over
intellectual property, and theirtestimonies have sparked
extensive media coverage.
They've ended up setting legalprecedents and they've
(02:10):
influenced public perception ofthe companies.
But there are a lot oflesser-known leaders who find
themselves on plaintiffattorneys' wish lists and cases
involving everything fromproduct liability to employment
discrimination to regulatoryviolations, and the stakes are
high.
What a CEO says in a depositioncan shift the entire trajectory
(02:31):
of a case.
Of course, defense attorneysfor corporate clients aren't
pushovers.
Their stiff resistancetypically hinges on more than
just protecting their client'stime or reputation.
They build defenses to preventwhat they often claim are
phishing expeditions or attemptsat intimidation, or to get a
CEO to fumble in some way.
Say something that they can.
(02:52):
You know a thread they can pullon.
It may sound inconsistent withsomething else that the company
may have testified to.
Now, central to the defenseattorney's playbook is the Apex
Doctrine.
This is a legal principleinvoked to shield high-ranking
executives from depositionsunless the requesting party can
show that the executivepossesses unique personal
(03:14):
knowledge unobtainable fromother sources.
The doctrine's foundation restson balancing judicial
efficiency with fair access toevidence, and courts across
jurisdictions weigh numerousfactors before compelling such
testimony.
So what exactly are thecontours of the Apex Doctrine?
What hurdles must attorneysclear to convince a judge that a
(03:35):
CEO's deposition is or is notwarranted?
To help us navigate this, I hadthe pleasure of interviewing
Rachel Lary, a partner atLightfoot Franklin White.
She's a seasoned litigator witha specialty in complex product
and business litigation.
She's the right person to talkto.
Her expertise not only spanshigh stakes corporate disputes,
but also encompasses the nuancedtactics required for successful
(03:58):
advocacy in deposition battles.
Her insights will illuminatethe practical realities behind
the Apex Doctrine and thestrategic calculus attorneys
must make.
With that, here is myconversation with Rachel Lary, a
partner with Lightfoot,Franklin and White.
I hope you enjoy it.
P.
S.
What you didn't get to enjoy isa guided tour of Rachel's
(04:19):
extremely neat office, which youcan only see on the video.
So we encourage you to take alook at that.
Or if you're watching the videoright now that'll make no sense
, but you can see how neat it is, and you almost got a tour
because I'm not clear aboutthings.
All right now, here's theepisode.
Well, Rachel Lary, thanks verymuch for joining me to talk
about this today.
(04:39):
Why don't you tell folks alittle bit about yourself and
then we'll dive into the topic?
Rachel Lary (04:43):
I am actually here in Birmingham, Alabama.
I work and have worked my wholecareer at a firm called
Lightfoot Franklin and White.
We are a litigation boutique.
I've been here for about 20years now.
Majority of my practice isproduct litigation, although I
do some business litigation too.
I became interested in the Apexstructure because, as you can
(05:07):
imagine, I had a case.
Tom Hagy (05:08):
Yeah, that has a way of getting a person to focus.
So why don't you give us somebackground on the Apex Doctrine
and what are its objectives?
Rachel Lary (05:16):
So the Apex Doctrine actually is derived
through federal common law.
It's derived from Rule 26, thatRule 26C specifically, that
provides certain protectionsagainst discovery that may be
harassing or embarrassing orunduly burdensome.
And so the APEX doctrine henceits name, apex is to protect
(05:40):
those individuals who are at theapex of a corporation or a
company, c-suite executives orother high-ranking executives,
to protect them againstdepositions that may be
harassing or burdensome.
Given the certain circumstancesover several decades in the
(06:10):
federal system, federal courtsystem is factors through which
the courts will determinewhether or not a protective
order should be issued toprotect against depositions of
executives.
And so there's certain factorsthat they look at, the first
being the obvious is thisdeponent a high ranking official
or executive?
Second being do they have anysort of specialized or personal
knowledge?
(06:30):
Third being knowledge about therelevant facts of the case.
And then, fourth, whetherthere's other, less intrusive
means of getting the samediscovery.
Tom Hagy (06:41):
In other words, are there other lower level ranking?
Rachel Lary (06:43):
employees who may have the same discovery.
In other words, are there otherlower-level ranking employees
who may have the same knowledge?
Tom Hagy (06:49):
So it has to be C-suite.
Do they go by title?
Do they go by number ofemployees?
Or, like you know, I'm the CEOof my company.
I've got five people orsomething.
So how does it work?
Rachel Lary (07:01):
You know, it depends.
So, there's not an exact titlethat you have to have in order
to be to claim that the Apexdoctrine should protect you.
Now, if you the bigger thecompany, the bigger the
organization and the higherranking you are, the more likely
that you may be protectedagainst deposition because you
(07:22):
won't have the knowledge or therelevant facts about the
individual, about the litigationand the individual facts and
claims that are involved in thecase.
So, generally speaking, theknowledge factor is really the
most important factor and so themore knowledge that a high
(07:44):
ranking executive has about therelevant facts of the case, the
more likely they are to bedeposed.
The less knowledge that theyhave about the facts of the case
, the less likely they are to bedeposed.
So really the driving factor isthe knowledge, not necessarily
the title or the number ofemployees.
Tom Hagy (08:01):
That makes sense.
So what's the risk of a CEOgoing in and being deposed or
having to testify?
What's the risk to them?
Rachel Lary (08:11):
Well, I guess it's you know you have the risks are
always associated with adeposition right, especially of
any corporate representativethat they're going to buy in the
company, and then thatcorporation has to live with
that testimony forever.
That, in and of itself, isreally not what makes the what
makes depositions of highranking executives risky.
(08:31):
The risk is simply that theydon't have the knowledge or the
expertise to be able to givereally relevant and good
testimony about the facts of thecase.
The risk is that their job isnot involved in whatever the
facts of the case were.
The risk is that their jobreally is to run that company,
(08:52):
to make sure that theshareholders are happy, and if
they're spending their timebeing deposed in cases for which
they have no knowledge orinformation, they're not really
doing the job that they've beenassigned to do and they start
becoming a professional witnessinstead of running the company,
and so that really is thebiggest risk.
(09:14):
Along with, the plaintiffs knowthat corporations don't like to
have their CEOs deposed for allof those various reasons.
So it becomes really a leveragepoint to try to increase the
value of the case, to try to getthe corporation to settle Again
(09:35):
, just as a pressure point thatplaintiffs like to use.
Tom Hagy (09:39):
Yeah, yeah, when we talked about this earlier, you
know, I see Yoka get up and saya bunch of things that maybe
they had just learned about.
Excuse me, sorry about that,that a CEO can go in and testify
about something they don't knowabout.
Of course they wouldn't talkabout something they didn't know
(10:02):
about, but then there's a riskof them saying I don't know.
Rachel Lary (10:04):
Right, exactly.
So again, when you're fightingto protect a high-ranking
official or CEO by virtue of theAPEC doctrine, what you're
saying is they don't have anyknowledge for the courts to
(10:29):
actually issue the protectiveorder, which generally means
you've got to put for some sortof evidence to meet these apex
doctrine factors, whichnecessarily means you're going
to have an affidavit from thatdeponent, from the high ranking
official, saying I don't haveany specialized or unique
knowledge, so you've got that.
But then if the court says,well, sorry, I think you do, I
think you are going to have tosit for deposition, then from a
(10:51):
litigation strategy, you've gotto weigh the risk between do I
feed this high ranking officialcertain pieces of information so
that they can answer thequestions that the jury is going
to want them to be able toanswer?
Tom Hagy (11:07):
Right yeah.
Rachel Lary (11:08):
And so it's nuanced .
You're having to say and admitmy CEO didn't know this before
this deposition.
But now you've asked for thisdeposition, the court said I've
had to put her up, and so I havenow downloaded that information
to her so that she can answerthese questions.
Because one of the worst things, I think from a jury
(11:30):
perspective, you can do is havea CEO of a company not have
enough information to eitheraccept responsibility where they
need to or help the juryunderstand why the company is
not responsible.
Tom Hagy (11:43):
Yeah, Okay.
So what's the plaintiff'sargument when they want a CEO of
a large?
I mean, we're talking, let'smake it easy, let's talk about a
Fortune 500 company.
You know, just a massivecompany that the only ones I've
known were.
A lot of their time was spent,you know, making shareholders
and investors, you know,satisfied with what's happening
(12:06):
at the company.
So what's the plaintiff'sargument for wanting them to
post?
Rachel Lary (12:11):
Well, setting aside what we've already talked about
, and just for leverage purposesand purposes.
You know they wanted again totry to create pressure and to
try to get those.
What's better than a soundbitefrom the CEO right?
Tom Hagy (12:27):
Right.
Rachel Lary (12:27):
So what they say in order to support that the APEC
structure should not apply or isa bad thing, is they really
claim it's an archaic view andit creates a hierarchy.
And what they say is youshouldn't be able to avoid a
(12:48):
deposition just because of yourtitle In fact, I've seen it
being referenced by theplaintiffs as a discrimination
doctrine.
That you're, yeah, that you,that only those most powerful
and most elite and have the mostmoney are the ones who get this
protection.
And how is that fair?
How can you have a, for example, let's say, a single mom who is
(13:12):
a lower level employee, whohappens to have personalized
knowledge about the facts of thecase?
She's not going to get theprotection.
So how in the world is this?
by the mere fact you're a CEO,your time is more important than
a single mom who's just workingto try to support her children
and is going to have to taketime away from her job.
(13:33):
How is that fair?
And what I would say is that'sthe old way of thinking about
the apex doctrine.
So the title alone is not whatprotects that executive from a
deposition.
What protects that executivefrom a deposition.
What protects the executivefrom a deposition is that, as a
result of their high-rankingposition, they lack any of that
(13:58):
relevant knowledge.
That's the distinction.
Tom Hagy (14:00):
Yeah.
Yeah, I can see where adownside.
I mean it'd be hard for a CEOof a large company to get any
kind of sympathy whatsoever.
I would think that's true.
Rachel Lary (14:13):
And you know what the plaintiffs also say is on
that very point.
Well, look, surely the CEO hasthree hours to sit for a
deposition and you know, I'llmake it ease on her, I'll come
to where she is.
Get ease on her, I'll come towhere she is.
And that's also one of theirmain arguments is it's actually
not burdensome because I'm goingto put these limitations on how
(14:37):
this deposition is going to goforward.
But, like those of us wholitigate day in and day out know
that preparing anyone fordeposition is not a three-hour
process.
The deposition itself is threehours, but the amount of prep
time to get that individualready for deposition is really
(14:57):
where the burden comes in oftime and expense.
And again, I keep repeatingmyself but when you also have a
CEO who doesn't have knowledgeand you're considering
downloading certain knowledge,that takes even more time.
So generally the way we haveframed it before is it's not
(15:17):
three hours in this case.
It becomes three hours in everyother case that she or that he
may have to sit for deposition.
She or that he may have to sitfor deposition, and that's where
the burden comes in.
Tom Hagy (15:30):
Yeah, yeah, we'll make it easy.
Come on in, we'll come to them.
Yeah, yeah, I could see it.
Yeah, my nephew gave afive-minute wedding toast and he
took it very seriously and Ithink he probably worked three
weeks on it.
Rachel Lary (15:46):
Right, it was very good, though, well, it takes a
lot of work to make it look easy.
Tom Hagy (15:57):
Yeah, that's right.
So talk about your survey.
You guys are keeping track ofthis across the country,
obviously.
Well, I was going to sayobviously federal, but that's
not even necessarily uniform.
Tell me about your survey.
What states?
What do we say at the federallevel?
Rachel Lary (16:08):
Tell me about your survey.
What states?
What do we say at the federallevel?
So, because the federal courtsare the ones who first created
the Apex Doctrine, so thefederal circuits and, from a
federal standpoint, more ofthose courts recognize,
specifically recognize the ApexDoctrine and specifically
adopted the Apex Doctrine.
(16:29):
The only federal circuit whohas rejected the Apex Doctrine
is the Sixth Circuit, which iscomprised of Tennessee, kentucky
, ohio and Michigan.
So that's the only circuit.
Who's currently said, look,we're not going to adopt the
Apex Doctrine?
So we've got a website thatliterally just has a map that
(16:51):
shows by color code, green beinggood, you've adopted the
doctrine, and red being no,we've rejected it.
And we have both from thefederal courts and then from the
states.
The states, as you can imagine,there's not as many that have
formally adopted the APECstructure.
The last time I checked therewas one, two, three, four, five,
(17:16):
six states Georgia, michigan,florida, texas, california and
West Virginia.
And so again on this websitethat we created really for this
very purpose of tracking thetrends and making sure that we
know what is the most recentcase, that identifies what the
(17:39):
state or that federal circuit isdoing.
And then we've got, as you canimagine, lots of states in
between what they haven'tformally adopted the apex
doctrine, but they also haven'trejected it.
Maybe there's a case wherethey've looked at the some of
these factors, but not all ofthese factors.
Maybe it's a case where theyshift the burden to one party or
(18:01):
the other under the apexdoctrine in different ways than
the apex doctrine requires.
So you're right, it's verydifferent depending on the
jurisdiction and the state thatyou're in.
Tom Hagy (18:16):
Yeah, and in Michigan it can depend on whether you're
in state or federal, I guess.
Then right.
Rachel Lary (18:21):
Absolutely.
Tom Hagy (18:22):
Yeah, okay, unless there was another one there, but
that's the one I caught.
Rachel Lary (18:25):
That was no no, no, that's it, you're absolutely
right.
Okay, there was another onethere, but that's the one I
caught.
That's it, you're absolutelyright.
Tom Hagy (18:30):
Okay, and so if people want to get hold of this survey
, this is not necessarily publichow should they get it?
Rachel Lary (18:40):
I'm happy for them to reach out to me.
It is password protected.
Tom Hagy (18:44):
Yeah, yeah.
Rachel Lary (19:03):
But I'm happy to give that out.
It truly is a great resourcetool if you have a case where
either there has been a threatof your high ranking official
being deposed or they've alreadyfiled the deposition in this,
or, quite frankly, even ifyou're trying to figure out
whether or not you've got.
You are in a state in whichyou're going to have the
protections or not, and thereare certain things you can do to
start moving the needle one wayor the other.
Right.
Tom Hagy (19:22):
All right.
Well, we'll get to that.
We'll get to that point in aminute too.
So so there have been somerecent cases since you and I
started talking about this.
So what can you tell us aboutsome recent developments?
Rachel Lary (19:35):
So one of the most recent is actually involves Mark
Zuckerberg.
Tom Hagy (19:40):
Zuckerberg.
Rachel Lary (19:41):
Yeah, Zuckerberg.
Tom Hagy (19:42):
I'm sorry.
I'm sorry, I thought you saidZuckerberg, I'm not hearing
things correctly.
You please keep going.
Rachel Lary (19:49):
I thought you said Zuckerberg.
I'm not hearing thingscorrectly.
You please keep going.
No, I may have.
(20:14):
Look, that's what I'm not.
I've been known to mispronouncethe last name.
Interesting litigationsurrounding Meta's use of
arguably copyrighted informationto train its AI model.
You may be familiar with SarahSilverman and other comedians
who have sued saying you don'tget to use my copyright
information to then train yourAI model of how to then create a
speech that sounds like me,right, and so, as part of that
litigation, the plaintiff, sarahSilverman, asked requested to
(20:36):
depose Mark Zuckerberg.
See, I almost did it today.
Tom Hagy (20:40):
Yeah, I see.
Okay, I'll keep you straight onthis.
Rachel Lary (20:43):
Okay.
So the question really becamedoes he have personalized or
specialized knowledge about theallegations of the case?
And Meta said no, he doesn'tLook, he's just at the top of
the chain.
You know he knows what's goingon, but no, he wasn't making the
(21:05):
exact decisions.
And in fact you have, as youcan imagine, process engineers,
software engineers underneathhim who really have the
knowledge that these individualsplaintiffs are wanting to seek.
And the court simply said did ananalysis and said no, he's a
chief decision maker, he haddirect control over the AI
(21:26):
initiatives and the programs.
He actually had directsupervision over certain
products.
And so it was actually afederal court, northern District
of California, and they orderedthey denied the motion for
protective order and ordered himto sit for deposition.
So again, you know the trendthat I see while the plaintiffs
(21:49):
like to say that the recenttrend is that the courts are
rejecting the Apex doctrine orfinding that it doesn't protect
a CEO, I think the true trend isjust really doing a deep dive
on again, what information canthey provide?
(22:10):
And so that's really what itcame down to in the Medicaid
there was a reason.
Tom Hagy (22:16):
So I'm sorry, so in that case.
So in that case they said hedid have to sit.
I guess I wonder if that hastaken place.
Rachel Lary (22:23):
I mean yeah, I don't know Well, so the order
was entered at the end of lastyear.
Tom Hagy (22:30):
I'll look for it.
Yeah, because I do rememberthat case, because Sarah
Silverman is ridiculously funnyand the book has a funny, some
funny title, I don't know.
It's something like you knowher life as a bedwetter or
something.
I'm like it's just fun when youhave these sophisticated
(22:50):
arguments coming up and thenthey refer to the actual book
and it's something like that,but not to make fun of that
problem, but anyway, she's veryfunny.
Rachel Lary (23:00):
Yeah so.
Tom Hagy (23:00):
I'll take a look at that one.
There were some other ones too.
Rachel Lary (23:05):
Yeah, so another well-known name Elon Musk.
The before Elon Musk, beforethe administration Elon Musk.
Tom Hagy (23:14):
I'm familiar.
I'm familiar with hismetamorphosis, yeah.
Rachel Lary (23:18):
Yes, this is when he was just running Tesla.
Tom Hagy (23:22):
Right.
Rachel Lary (23:22):
And there was an unfortunate accident with a with
a young man in florida, um,where, unfortunately, um, the
allegation was that the softwarein the tesla um had an issue
that resulted in an unintendedacceleration and unfortunately,
the young, the young man, passedaway.
(23:43):
Um, interestingly, elon calledthe family after it occurred to
give his sympathy andcondolences and, as part of that
conversation, actually said tothe family we're doing an
investigation, we're going tolook into what happened and
whether the policies andprocedures that I expect to be
(24:04):
followed were followed.
And so it was that conversationwith the family that the
plaintiff said was the hook forthem being able to depose him.
And Elon came in and filed anaffidavit saying, number one, he
didn't recall that conversationand, number two, he wasn't
(24:25):
involved in that investigation,involved in that investigation
and that there were other lowerranking employees who were
involved in the investigationwho could give actual
information about what theyfound, if anything.
And the Florida court statecourt granted him the protective
order and he did not have tosit for deposition.
(24:46):
Now a nuance for Florida is,you may recall, they are one of
the states that has officiallyadopted the APEC structure and
in fact, what they did is theythe Supreme Court of Florida
amended their civil rules ofprocedure to specifically add a
section that set forth theparameters and the factors
associated with the APECstructure.
Tom Hagy (25:07):
Okay, all right, yeah, you can.
And the factors associated withthe apex stratum?
Okay, all right, yeah, I meanit's an interesting case.
I mean you can see where hisinstincts were to show
compassion Absolutely, and inthe legal world that's not
always the right thing to do.
And then he says the thingabout the investigation he
brought up the investigation.
The investigation, he broughtup the investigation.
(25:31):
And then also, a guy like ElonMusk is also somebody who is
considered to be an inventor ofthings, right, and you know,
isn't he an engineer orsomething?
So you can see a guy like thatwhere plaintiffs would argue
wait a second, he knows a lotabout these things Absolutely.
Rachel Lary (25:49):
You know, I think there's.
There is always room forsympathy, I believe, in any any
case, where there are tragiccircumstances, there should
always be a means or which thecorporation can offer their
sincere sympathies for thetragic injury or the tragic
death, without necessarilyaccepting responsibility for it.
(26:12):
Right and and?
And so you know that was a, inmy mind, a good thing for him to
want to do.
Tom Hagy (26:20):
Um, it just unfortunately resulted in him
having to argue why he shouldn'tbe deposed right, you told me
when we talked one one of thereasons you became obsessed with
the Apex Doctrine sorry, becameinvolved in the Apex Doctrine
was a case where you had amanufacturer and the plaintiffs
wanted to depose the CEO of thatcompany.
(26:41):
So tell me about that.
Rachel Lary (26:43):
That's right.
It was in Georgia.
Since this case, georgia hasalso passed legislation adopting
the APEX doctrine.
At the time this case waspending they had not, and so the
plaintiffs wanted to depose theCEO of this product
manufacturer and argued reallyvery broadly that because their
(27:08):
claims were a product defectclaim, it involved, as all
product defect claims do, thesafety of the product and this
high ranking official, thisproduct manufacturer had created
a safety program.
Safety program and that wasplaintiff's argument and their
(27:43):
hook for why this executive hadknowledge for which they should
be able to depose him.
Or case in which they have noknowledge about the design, the
development, the manufacturing,the assembly or much less the
details of the actual accidentand how it happened and why it
(28:04):
happened, or any informationabout the investigation that may
or may not have been done bythe corporation about that
accident that she should.
Despite all of that, just theplaintiff said, just because
there was a safety programcreated under that CEO's watch,
(28:26):
they should be able to deposethat CEO watch.
They should be able to deposethat CEO.
Interestingly, because at thetime Georgia had not said one
way or the other whether theywere adopting the Apex Doctrine,
the trial court ignored all ofthose Apex Doctrine factors
which weighed in our favor.
Obviously and this is what someof the state courts do they say,
(28:48):
look, discovery is broad.
And this is what some of thestate courts do said, no, you
(29:10):
can't trial court, you can'tignore those factors, you have
to at least consider them.
And so when it was remandedback down to the trial court,
once the trial court didconsider those what I would say
are very important factors, thetrial court said yeah, I'm going
to issue this protective orderagainst having to make the CEO
sit, issue this protective orderagainst having to make the CEO
set.
(29:30):
It was not long after that thatthe legislator in Georgia
passed a bill that specificallyset out the apex doctrine.
In Georgia and I actually ampreparing for this call I look
just to see how many times it'sbeen applied and whether the
court has said has issued aprotected order or has not.
(29:54):
And, as you can imagine, it'spretty much split down the
middle.
But again, every single time,at least in the published
opinions, the court is reallyrelying on whether or not that
CEO has, or executive hasknowledge that's relevant to the
facts.
Tom Hagy (30:12):
Yeah, it sounds so simple.
Rachel Lary (30:13):
It really does.
Tom Hagy (30:15):
They're going to depose somebody.
Well, do they know anythingabout this?
Maybe?
Rachel Lary (30:21):
Well, you know, it becomes interesting about what
then is relevant.
Is the safety of the productrelevant in a product liability
case and if it is, if you havean executive create a safety
program, does that open them upfor deposition?
And then the corporation isarguably they shouldn't be but
could be in a catch-22 of Idon't want to say anything
(30:44):
publicly or create anything thatmay benefit the corporation at
the risk of being deposed, whichshould not be the way it is at
all yeah, gotcha.
You know what is relevant isreally becomes interesting and,
as you can imagine, theplaintiffs take a really broad
view of that.
Tom Hagy (31:02):
Yeah, they do.
Yeah.
Having having been involved init just from a distance, writing
about it, and having beeninvolved in litigation, I'm
shocked at how broad it can beinterpreted.
It's like what, what now?
Rachel Lary (31:22):
Right, right, you know.
Yeah, safety is a broad topicand if an executive has
information about safety in aproduct defect case, then that
executive is going to be behindevery product that claim.
Tom Hagy (31:37):
Yeah, yeah, because I had sued and then I was
countersued.
You know, come to think of it,I was a CEO of my little company
there you go, the one and onlyOne and only employee.
It was very close to that.
Yes, very close, within 100people.
No, it was it.
I won.
(31:59):
By the way, the other thing isokay.
I didn't ask you specificallyabout this.
We don't have to talk about theSixth Circuit, because it
struck me as that's the oneoutlier about the Sixth Circuit,
because it struck me as that'sthe one outlier.
Maybe I should go back and justtake a look at that case.
You don't happen to rememberwhy that one split off from the
other circuits, do you?
Rachel Lary (32:17):
No other than it's a case that came down in 2012.
And what it basically said wasthat they said the APEC doctrine
allows the court to improperlyassume that the depositions of a
corporate officer would beunduly burdensome.
And what they said is withoutproof of the undue burden.
(32:39):
And so the question I have is Iwonder if the Sixth Circuit
would look at it differently ifthere was proof of the undue
burden, by offering an affidavitsetting forth again all the
factors and reasons.
You know it's not going to beenough to have the title.
It's not going to be enoughthat you've got a busy schedule.
(33:02):
It's not going to be enoughthat you've got hundreds of
thousands of employeespotentially reporting to you.
I mean, you can, that can allbe true, and if you were the one
that helped negotiate theprovision of the contract that
now is at issue, you're going tobe deposed.
Tom Hagy (33:21):
Right yeah.
Rachel Lary (33:22):
Right?
So anyway, it'd be interestingto see what the sixth circuit
would do, however many yearslater now.
Yeah Well, maybe you'll end upthere.
You can keep your your apexcareer going.
Interesting to see what thesixth circuit would would do um,
however many years later now.
Tom Hagy (33:30):
Yeah well, maybe you'll end up there.
You can keep your apex careergoing, um, so what?
Uh, so I want to talk to alittle bit about.
So, well, speaking of that,what if you want to get this in
your state?
Um, and you mentioned you had alot of amicus support, uh, your
case.
So, some pretty big companies Ithink you mentioned in my notes
(33:51):
I think you said Google, google, right?
No, I can't read.
It wasn't Google.
It might've been, but it wasn'tin my notes it was.
It was Coca-Cola, delta, thoseare.
Those are big Georgia companiesand Kia.
Rachel Lary (34:03):
Yeah, and Home Depot.
Tom Hagy (34:04):
And Home Depot.
Rachel Lary (34:05):
Yeah, no, kia is not obviously headquartered in
Georgia, but they recentlyopened a plant in Georgia, but
Delta is headquartered there,home Depot, coca-cola, and you
know this issue is important forlarge corporations like those
because they want to make surethat their executives are going
(34:29):
to be distracted by constantlyhaving to raise their right hand
in cases that they shouldn't bebeing deposed in, in cases
where it really is an effort toharass the corporate officers.
These companies said in theirbriefing Amika's briefing to the
(34:50):
Supreme Court was you know, wechose Georgia, quite frankly,
because it was at least this iswhat Kia said because it was
portrayed to us as a businessfriendly state.
And if you're going to allow adeposition to go forward when
(35:10):
there is no real connectionbetween the allegations of this
case and no involvement or roleof the executive, that's a
problem.
It does create a hugedistraction.
It is a huge burden and theywere pretty vocal about again
(35:35):
their support of some type ofprotection for these high
ranking officials.
Tom Hagy (35:40):
Okay, Now that was in your case where the amicus came
in.
Is that correct?
Rachel Lary (35:45):
Yeah, that was the case in Georgia.
Yes, yeah, and that thenresulted in, and again, the
Georgia legislator passing abill that said okay.
Tom Hagy (35:57):
Yeah.
Rachel Lary (35:58):
Now, you know, we could talk all day about the
tort reform needed in Georgia,but that was one small, small
aspect.
We're still working on someothers.
Tom Hagy (36:08):
I think I've got everything I want.
I think you've explained it allextremely well.
I really appreciate it.
Rachel Lary (36:13):
Yeah, absolutely Well, thank you for having me.
I appreciate that.
I'm surprised to know thatthere may be others who would be
interested in APEX doctrine,but I'm glad to know there may
be some of them out there.
Tom Hagy (36:25):
I'm sure there are.
Well, thanks again.
The Emerging Litigation Podcastis a production of Critical
Legal Content, which owns theawesome brand HB Litigation.
Critical Legal Content is acompany I founded in 2012.
That was a long time ago.
What we do is simple we createcontent that's critical on legal
topics for law firms and legalservice providers.
(36:46):
I believe we even have a catchytagline, which is your legal
content marketing department.
That kind of content can beblogs, papers, they can be
podcasts, webinars and we have agood time doing it and S4HB
litigation.
Well, that's the name underwhich we publish interesting at
least interesting to me legalnews items, webinars, articles,
(37:09):
guest articles, all on emerginglitigation topics.
That's what we do.
Once again, I'm Tom Hagee, withCritical Legal Content and HB
Litigation.
If you like what you hear andyou want to participate, give me
a shout.
My contact information's in theshow notes.
Thanks for listening, thank you.
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