High-ranking corporate officials with little or no personal knowledge of the facts of a civil case can be protected from deposition until after less-intrusive discovery options are exhausted, ruled the West Virginia Supreme Court of Appeals in State ex rel. Massachusetts Mutual Life Ins. Co. v. Sanders, No. 11-1514 (Feb. 24, 2012).
In a case of first impression, the Court was asked to consider whether a high-ranking corporate official of Massachusetts Mutual Life Insurance Company, who was without any personal or unique knowledge of the facts and circumstances of the case, could be compelled to be deposed, despite the availability of other corporate witnesses and other means of discovery. The Court held that the trial court should have applied the so-called "apex deposition rule" to determine whether a protective order should have been entered.
In Syllabus Point 3, the court adopted the "apex deposition rule" as follows:
3. When a party seeks to depose a high-ranking corporate official and that official (or the corporation) files a motion for protective order to prohibit the deposition accompanied by the official’s affidavit denying any knowledge of relevant facts, the circuit court should first determine whether the party seeking the deposition has demonstrated that the official has any unique or personal knowledge of discoverable information. If the party seeking the deposition cannot show that the official has any unique or personal knowledge of discoverable information, the circuit court should grant the motion for protective order and first require the party seeking the deposition to attempt to obtain the discovery through less intrusive methods. Depending upon the circumstances of the particular case, these methods could include the depositions of lower level corporate employees, as well as interrogatories and requests for production of documents directed to the corporation. After making a good faith effort to obtain the discovery through less intrusive methods, the party seeking the deposition may attempt to show (1) that there is a reasonable indication that the official’s deposition is calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate. If the party seeking the deposition makes this showing, the circuit court should modify or vacate the protective order as appropriate. As with any deponent, the circuit court retains discretion to restrict the duration, scope and location of the deposition. If the party seeking the deposition fails to make this showing, the trial court should leave the protective order in place.
The Court was quick to add that this rule is not blanket prohibition of depositions of high-ranking corporate officials. However, it is a means of ordering discovery to avoid undue burden and harassment of such officials.