Two weeks ago we blogged about the Georgia Supreme Court’s not-quite embrace of the apex doctrine limiting depositions of organization big-shots. In National Collegiate Athletic Association v. Finnerty, 2022 WL 2815848 (Indiana July 19, 2022), the Indiana Supreme Court did something similar. The Finnerty case was brought on behalf of college athletes against the NCAA for allegedly failing to implement “proper policies for preventing, diagnosing, or managing football head injuries.” There are many such lawsuits and in many of them the plaintiffs sought to depose high-ranking NCAA executives.
Those executives could have ended up doing nothing but depositions. Accordingly, those executives sought protective orders preventing such depositions because the executives possessed no unique knowledge and there were less intrusive means for discovering the information sought. The trial court denied the protective order, the Indiana Court of Appeals held that the appeal from denial of the protective order was untimely, and the issue ended up in front of the Indiana Supreme Court.
The Indiana Supreme Court held that the appeal from the interlocutory order was timely, and proceeded to consider the NCAA’s request that Indiana adopt the apex doctrine, which limits depositions of executives who sit at the “apex” of a corporation’s hierarchy and who are consequently vulnerable to repetitive or harassing depositions. In considering this issue, the Indiana Supreme Court had the benefit of excellent amicus briefing, including from the Product Liability Advisory Council and the U.S. Chamber of Commerce. (Full disclosure: we know the lawyers who authored these amicus briefs and we like and admire them. We also like and admire what they wrote. The briefs go through the need for and benefit of the apex doctrine, and also make the point that Florida had recently adopted it.)
As in the Georgia Supreme Court opinion we covered earlier, the Indiana Supreme Court in Finnerty declined to adopt the apex doctrine, but articulated a framework based on state discovery rules that captured most of the apex doctrine’s factors and operation. The Indiana Supreme Court began its analysis by characterizing depositions as a “factual battleground where the vast majority of litigation actually takes place.” (The Indiana Supreme Court actually borrowed that formulation from an E.D. Pa. case called Hall v. Clifton Precision. Those of us who litigate frequently in E.D. Pa. are quite familiar with the Hall case, which sets out some terrifying rules about discoverability of conversations between deponents and their lawyers during deposition breaks. Seriously, if you are defending a deposition in an E.D. Pa. case, read Hall. And then be afraid. Very afraid.)
The Indiana Supreme Court had never before encountered the apex doctrine, and faced the issue of whether that doctrine could be squared with Indiana’s (sigh) “liberal” discovery regime. On their face, Indiana trial rules do not “include heightened protections for any class of individuals.” At the same time, Indiana courts are receptive to requests for protective orders that will prevent “annoyance, embarrassment, oppression, or undue burden or expense.” But for the Indiana Supreme Court, explicit adoption of the apex doctrine was a step too far. The Court saw federal application of it as “inconsistent” and its prevalence in state courts as “sparse.” What the Indiana Supreme Court especially disliked about the apex doctrine was its “presumption – in conflict with [state court] discovery rules – that a high ranking official should not be deposed unless the requesting party first establishes a necessity for the deposition.”
What rule did the Indiana Supreme Court embrace, if not the full-blown apex doctrine? First, the deponent must prove him or herself to be a true apex official. The issue is anterior to the question of whether good cause exists for a protective order. Because corporate organizational structures differ, it is impossible to lay out a bright line test based on, say, title. Instead, it is a fact-sensitive inquiry focusing on the official’s “authority to exercise judgment and discretion when making executive decisions,” as well as the nature and scope of the executive’s duties and responsibilities. The party seeking protection also bears the burden of demonstrating that the executive lacks personal knowledge of relevant information, that the information is available through less intrusive avenues, that the deposition would be unreasonably cumulative or duplicative, and that the hardship of the deposition would outweigh the benefit. If that showing is made, the burden shifts to the requesting party to rebut either the deponent’s apex status or the good cause showing. Such a rebuttal of apex status or good cause for protection requires “particularized factual support.” Maybe the requesting party has evidence that the deponent really does have personal knowledge. Or maybe the requesting party can show that any alternative means of discovery are “unavailable, inadequate, or already exhausted.” If there is a genuine clash between the parties on these factors, the trial court “must use its discretionary authority to balance the parties’ needs and impose a protective order that (1) restricts the topical scope of the deposition or (2) requires the exhaustion of less intrusive discovery methods.”
Because the trial court in Finnerty summarily denied the NCAA’s motion for a protective order, there is no way to know whether it applied anything like this analytical framework. Therefore, the Indiana Supreme Court remanded the case to the trial court to do the requisite balancing and decide whether the depositions were appropriate.
This framework might not be precisely the same thing as the apex doctrine, but it seems at least apex adjacent. The showing you’d put together if you were seeking to prevent or limit a deposition is pretty much the same as if you were in a jurisdiction that employed the apex doctrine. Sure, it becomes a matter of discretion for the court, which means appellate review will be circumscribed, but at least it is clear in Indiana that a court must actually go through specified steps in exercising its discretion. We predict that most depositions that would be blocked by the apex doctrine will also be blocked by Indiana’s new framework.
We have long believed that the Indiana appellate courts are generally not a bad place to be for corporate defendants. The Finnerty decision does not alter that belief.