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Going to the Top: The Apex Doctrine in Business Litigation


If you are the president or CEO of your company, there may be a lot about the day to day operations of your company that you aren’t directly involved in. That’s to be expected; as a higher level executive you simply have no choice but to delegate a lot of the daily decision making.

Deposing the Top Dog

But when your company gets sued or you sue someone else, you may be surprised when the other party wants to depose you. You may not understand why—just because you are president or owner or CEO, doesn’t mean that you have any personal knowledge about the issues in the lawsuit.

There are two reasons why you could be called to a deposition:

It could be that the other side genuinely believes that you have knowledge that is relevant to an issue in the lawsuit.

But it could also simply be harassment; the other side knows that by calling you to testify, and perhaps, by making your deposition uncomfortable by asking potentially invasive questions, the other side could pressure you into agreeing to settle the case quicker than it normally would be settled.

No Harassment Allowed

But this harassment tactic has been outlawed in Florida, by what is known as the Apex doctrine.

The Apex doctrine prohibits deposing the “top dog” in the company, just because he or she is the top dog; there must be a compelling reason why the head of the company is being deposed—that is, before getting your deposition, the Plaintiff must show that you do, in fact, have information or testimony, that is relevant to the issues in the case.

This of course is possible in some cases—the head of a company isn’t automatically insulated from being deposed, just by virtue of his or her official position. But it does make it harder for a party to harass a higher level executive with a needless deposition.

Getting Protection From Deposition

If a high level officer is subpoenaed for deposition, the party being deposed would need to file a protective order. A court will then ask the party requesting the deposition, why the deposition is needed, and the court will make the decision whether to allow the deposition to go forward.

The executive potentially being deposed can respond to the request for deposition, by filing an affidavit, saying that the executive has no knowledge of the facts or information alleged in the lawsuit.

When the Apex Doctrine is Used

The Apex doctrine is most often used in injury cases, where a company is being sued for an injury or a defective product, where the CEO may have no idea about a particular accident or product.

But can be used in business or commercial litigation cases as well, where there are business transactions that the head executive was not personally involved in, and may not have knowledge about.

Are you being deposed in a commercial litigation lawsuit? Ask us for help. Call our West Palm Beach business litigation attorneys at Pike & Lustig today.




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