Episode 20 - Apex Depositions

You need to depose a high-ranking government or corporate official, but their lawyer refuses, saying the official is protected by the Morgan Doctrine, sometimes called the Apex Doctrine. This principle stands for the proposition that high-level officials may be able to avoid being deposed by showing either that they lack meaningful personal knowledge or that others of lower rank can provide the same information. In this episode, Jim Garrity explains the doctrine, and offers practical insights into the factors courts take into account in allowing, or in blocking, these depositions. As always, Jim has provided helpful case cites below to get you started on your own research when facing this issue.Select case cites from this episode:1. U.S. v. Morgan, 313 U.S. 409, 421-422 (1941) (seminal case) (high-ranking government officials not subject to deposition absent extraordinary circumstances)2. Keebaugh v. International Business Machines Corporation, 2020 WL 774238 (S.D.N.Y. 2/18/2020) (plaintiff sought depositions of CEO and chief human resource officer; held, while HR chief could be deposed without further delay, deposition of CEO would be delayed pending development of record by plaintiff that CEO had unique personal knowledge or information that could not be provided in identical fashion by lower-level witnesses; court notes that IBM did not file affidavits from either executive to support claims they lacked personal knowledge)3. Blankenship v. Fox News Network LLC, 2020 WL 7234270, Case No. 2:19-cv-00236 (S.D. W. Va. Dec. 8, 2020) (plaintiff sought to depose two sitting United States Senators; held, apex depositions would not be allowed’ “…Plaintiff has failed to demonstrate “exceptional circumstances” espoused by the Morgan doctrine to justify deposing Senators McConnell and Gardner. . . . has not shown that either of these high-ranking government officials have personal knowledge relevant to this litigation. . . .has not shown that these proposed depositions are essential to his case. . . has not shown that the evidence sought from deposing these Senators is unavailable through any alternative source or less burdensome means. . . . has not alleged that either Senator said anything defamatory, and does not provide an “actual showing” that any conspiracy existed, let alone that these Senators had any knowledge of it”)4. Motion for Protective Order, Blankenship v. Fox News Network LLC, 2020 WL 7234270, Case No. 2:19-cv-00236 (S.D. W. Va. Dec. 8, 2020) Case 2:19-cv-00236 Document 625 Filed 11/03/20 Page 1 of 18 (contains excellent overview of the law on apex depositions)5. Byrd v. District of Columbia, 259 F.R.D. 1, 6-7 (D.D.C. 2009) (“Although no standard has been established for determining if an official is high-ranking, courts have held that the Mayor of the District of Columbia, United States Senators, the General Counsel to United States House of Representatives, the Attorney General of the United States and certain high administrative heads are high-ranking officials for this purpose.”) (internal citations omitted)6. Odom v. Roberts, --- F.R.D. ---- (2020), 2020 WL 7111175, Case Nop. 5:18-cv-271-MCR-MJF and 5:19-cv-253-MCR/MJF (N.D. Fla. December 1, 2020) (held, plaintiffs demonstrated sufficient personal involvement by Sheriff to warrant apex deposition; excellent, comprehensive discussion and case citation in this order)7. Suzuki Motor Corp. v. Winckler, No. 1D18-4815, 2019 WL 4062353 at *1 (Fla 1st DCA Aug. 29, 2019) (allowing deposition of chairman of Suzuki Motor Corporation, "[D]octrine is only clearly established in Florida in the government context, with respect to high-ranking government officials”)