In Stratford v. Umpqua Bank, No. 100717-5 (Sept. 14, 2023) (slip op.), the Washington Supreme Court rejected the application of the “apex doctrine” in Washington. The apex doctrine has been adopted by some jurisdictions to shield high-level executives and officials from being deposed.  See, e.g., Robinett v. Opus Bank, No. C12-1755MJP, 2013 WL 5850873, at *5 (W.D. Wash. Oct. 30, 2013) (citing Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979)). In this case, Defendant Umpqua Bank argued that Washington should adopt a specific application of the apex doctrine, where a party seeking to depose a high-level officer must first show that: (1) the witness has unique, non-repetitive, firsthand knowledge of the facts at issue in the case, and (2) other less intrusive means of discovery, such as interrogatories and depositions of other employees, have been exhausted without success. Stratford, slip op. at 10.  The Washington Supreme Court rejected both this specific application and the doctrine more generally. 

In Stratford, Heather Stratford and William Geibel Jr. (collectively Stratford) sued Umpqua Bank and its loan officer for, among other things, negligent misrepresentation, fraud, and negligent hiring arising from the alleged misconduct of an Umpqua loan officer and a deal that the loan officer facilitated for Stratford. During discovery, Stratford sought to depose three high-level Umpqua executives: its president and CEO, chief people officer, and head of its home lending division. Umpqua moved for a protective order arguing that none of these executives had any personal knowledge about the issues with the specific loan officer, Stratford’s loan, or the ultimate termination of the Umpqua loan officer. The trial court denied Umpqua’s motion for a protective order. Umpqua appealed, requesting that the Washington Supreme Court find that Umpqua’s understanding of the apex doctrine applies in Washington.

The Washington Supreme Court rejected Umpqua’s application of the apex doctrine. The Court emphasized that its application was not required under Washington precedent and that the version of the apex doctrine that Umpqua argued for would change the burden of proof in discovery motions, in contradiction to the Washington Civil Rules.

First, the Court found that no court in Washington has applied the apex doctrine. In making this finding, the Court rejected Umpqua’s reliance on Shields v. Morgan Financial, Inc., 130 Wn. App. 750, 125 P.3d 164 (2005), and Clarke v. State Attorney General’s Office, 133 Wn. App. 767, 781, 138 P.3d 144 (2006). The Shields court did not apply the apex doctrine when it granted a protective order denying plaintiff’s request to depose the lender’s chief financial officer and chief compliance officer. Rather, the court applied the factors set forth in Civil Rule 26(c) and found good cause to regulate discovery when it was “unreasonably cumulative or duplicative” or “unduly burdensome or expensive, taking into account the needs of the case.”130 Wn. App. at 759. Although the court in Shields noted that the officers had no knowledge of the facts and that the lender had produced a different senior executive to testify, the Supreme Court explained that this was simply an exercise of the trial court’s discretion in limiting discovery based on the needs of the case. Similarly, in Clarke, the Supreme Court found that the court did not adopt the apex doctrine as proposed by Umpqua. Instead, the Clarke court affirmed the trial court’s decision based on the deferential standard of review, noting that there were better sources for the information sought. The Supreme Court did, however, take pains to emphasize that Clarke involved a public official—the former Washington Attorney General and current Governor—rather than a corporate official. Thus, the federal cases Clarke relied on that discussed protecting governmental officials from having to explain their “official actions” did not extend to protecting private corporate officials. Stratford, slip op. at 13.  

The Court also rejected Umpqua’s argument that the apex doctrine was widely adopted across the country. The Court noted that the doctrine has inconsistent application in federal courts and the majority of federal courts do not apply the apex doctrine with the burden on the party seeking discovery and the two-part test for which Umpqua argued. The Court also noted that the application of the apex doctrine in state courts is equally inconsistent—with five states adopting it and seven states rejecting it—and found that its acceptance is waning.

Critically, high-ranking corporate officials are not without any protection for depositions in Washington.  The Court emphasized that Washington’s Civil Rules, as drafted, already prevent the harms addressed by the apex doctrine. A party seeking to protect high-level corporate officials from deposition can invoke Civil Rule 26(c) and (b) without improperly shifting the burden of proof in violation of the discovery rules. Under these rules, when good cause is shown by the moving party, a court may enter an order protecting any person from a deposition that would cause annoyance, embarrassment, oppression, undue burden, or expense. Barfield v. City of Seattle, 100 Wn.2d 878, 885, 676 P.2d 438 (1984); CR 26(c). Good cause exists when a protective order would avoid the threat of a harm listed in Civil Rule 26(c) without impeding the discovery process. Rhinehart v. Seattle Times Co., 98 Wn.2d 226, 232, 654 P.2d 673 (1982). Importantly, unlike Umpqua’s proposed apex doctrine, the burden of persuasion rests with the party seeking the protective order. Cedell v. Farmers Ins. Co. of Wash., 176 Wn.2d 686, 696, 295 P.3d 239 (2013). 

The Court concluded that without the apex doctrine, Umpqua had the burden of establishing good cause existed to limit discovery, which it failed to do. The Court affirmed the trial court’s order denying the protective order.

In light of Stratford, concerns with deposing apex officials must be addressed via Civil Rule 26.  This rule requires a trial court to issue a protective order where the moving party “establishes that undue burden or expense would be avoided by a protective order without impeding the discovery process. CR 26(c).” Stratford, slip op. at 14.  Courts should also limit discovery that “is obtainable from some other source that is more convenient, less burdensome, or less expensive.” Id. (internal quotation marks omitted) (quoting CR 26(b)(1)(A)). Thus, where a high-ranking corporate official lacks relevant knowledge or would otherwise face an undue burden, the official or party may move for a protective order to limit or prevent the deposition and establish good cause for the entry of the order.  As with any motion for a protective order, the request should be supported by “affidavits and concrete examples demonstrating the specific facts showing harm.” Id. at 17-18.