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Milwaukee Attorneys Address the Need of Responding to a Deposition Subpoena

When a corporate entity has been sued, the plaintiff cannot, of course, depose the defendant; it must pose questions to the defendant corporation’s executives and other employees. All too many plaintiffs follow a simple rule – start at the top. Accordingly, they issue a subpoena requesting the deposition of the defendant’s CEO or other top executives, in spite of the fact that employees “down the food chain” usually have more intimate knowledge of the facts.

Recent Case Provides Insights

Can the CEO, whose time the corporation values more than that of the subordinate, avoid the deposition by passing the baton to someone else? While the answer isn’t always clear, a recent decision by a Wisconsin federal judge provides at least some guidance [see Epic Sys. Corp. v. Tata Consultancy Servs., 2016 U.S. Dist. LEXIS 7903 (W.D. Wisc., Jan. 22, 2016)].

Epic accused the Indian conglomerate Tata of improperly accessing Epic’s computer network and downloading thousands of proprietary files in order to support Tata’s competing software business. It sought to compel the deposition of Tata’s Mumbai-based CEO, alleging that he was aware of the alleged trade secret theft and was involved in the marketing of Tata’s competing software in the United States.

The “Apex” Doctrine

Tata opposed the deposition, contending that it should not be required under the so-called “apex” doctrine. Under that doctrine, the party seeking the deposition must demonstrate that the executive has “unique first-hand, non-repetitive knowledge of the facts at issue in the case” and that the party seeking the deposition has “exhausted other less intrusive discovery methods” [Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259, 263, 2012 U.S. Dist. LEXIS 48011 (N.D. Cal. 2012)]. Tata argued that the CEO’s involvement in the facts of the case was so limited that his deposition would be unreasonably burdensome and that the information sought was readily available from other sources. Tata also filed a declaration signed by the CEO to that effect.

The federal judge allowed Epic to take the CEO’s deposition, but only within a narrow scope and three-hour duration. The judge noted that the CEO’s declaration had not specifically disclaimed personal knowledge of the alleged software theft or his role in the hiring of employees involved in the alleged theft.

Apex Doctrine is Not Specifically Applicable in the Seventh Circuit

Practitioners should note that the judge did not specifically discuss the apex doctrine; its use is not settled within the Seventh Circuit. The judge’s decision is, however, consistent with the doctrine. Somewhat different than the apex doctrine, the Wisconsin federal judge seemed to place the burden on Tata, who sought to preclude the deposition. Particularly important was Tata’s failure to offer a declaration that adequately disclaimed personal knowledge of the facts.

While the judge’s decision leaves some questions unresolved when it comes to deposing high-level executives, litigants seeking to avoid a deposition should do at least the following:

  • Identify and categorize the deposition topics
  • Identify all employees who could provide the same (or better) information, but whose deposition would be less intrusive or burdensome for the corporation
  • Prepare a detailed declaration stating the limits of the executive’s knowledge, bearing in mind that any gaps will be resolved against you
  • Specifically identify the burden that is posed by the upcoming deposition and incorporate that into relevant court filings

Limiting CEO Testimony is Difficult for Executives of Smaller Firms

One additional practical point: Avoiding or limiting a CEO’s deposition may only be possible for executives at relatively large corporations. Small firms generally have a difficult time convincing the judge that the executive has little or no first-hand knowledge of the dispute.

Milwaukee Business, Employment, and Commercial Litigation Attorneys

Does your business face looming litigation? Are you concerned about the burden and costs that might be associated with deposing your firm’s executives? The Milwaukee business litigation firm of Kerkman Wagner & Dunn has more than 50 years of combined legal experience representing business owners in Wisconsin. While we have extensive experience in complex litigation, we are also skilled at keeping cases out of the courtroom when appropriate. Our goal is to serve our clients’ needs efficiently and effectively, whether in the courtroom, negotiation, mediation, arbitration, or by informal resolution. We have big firm talent and yet we provide small firm attention. Call us at 414-278-7000 or complete our online contact form.

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