Washington Supreme Court declined to apply the “Apex Doctrine” to shield executives from Discovery in Stratford v. Umpqua Bank. 

The “Apex Doctrine” is a legal principal aimed at protecting top executives and government officials from having to sit for a deposition in certain situations. 

WHAT DOES THIS MEAN? AND WHY DOES THIS MATTER? 

The Washington State High Court’s decision to decline to apply this principal opens the door for litigants to depose and seek discovery responses and testimony from higher ranking officials within an organization. This imposes a significant obligation on corporate clients to the extent the other side seeks to depose those high-ranking officials who might not have any personal knowledge of the facts surrounding the lawsuit. 

The Apex Doctrine has not been adopted in Washington. In 534 P.3d 1195 (Wash. 2023), the Washington State Supreme Court was asked to decide whether the Apex Doctrine should be applied to overturn the trial court’s denial of a protective order to shield two high-level executives of Umpqua Bank from being deposed. The Washington Supreme Court ultimately held that the Apex Doctrine, has not and will not be adopted in Washington, thus subjecting those high-level officers to being deposed. 

The Washington State Supreme Court held that the Apex Doctrine shifts the burden onto the party seeking discovery rather than the party resisting it, which is contrary to the liberal rules governing discovery in the State of Washington. 

Who a party thinks may have relevant information is up to them to decide. The burden is not on that party to show that they have actual personal knowledge as would be required under the Apex Doctrine. It is the burden of the defendant to show why deposing those individuals is unduly burdensome or unnecessary under the civil rules. Washington Courts should not apply the Apex Doctrine to shift the burden onto the party seeking discovery to establish how the high-level official has unique, first-hand knowledge of the facts in the case and less intrusive methods for obtaining the information exist such as written discovery or deposing other employees. 

IN CONCLUSION 

The Court’s decision in Umpqua Bank will likely be used by parties as an attempt to gain leverage over a company in settlement negotiations. Companies will likely not want to have high-level officials be deposed when they have no personal knowledge of the facts in the case and will actively try to avoid that and settle cases in ways it might not otherwise settle in order to prevent those depositions. 

With this in mind, attorneys can assist clients with ascertaining who has knowledge of certain facts, prepare clients for the possibility that a party will seek to depose high-level officials within the company, and encourage deposition by more convenient means if the official’s deposition is to move forward.