Apex Depositions and the Crown Central Guidelines in Texas

The Supreme Court of Texas first adopted the apex deposition guidelines in Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex. 1995). Apex deposition guidelines apply when a party seeks to depose a corporate president or other high level corporate official. Id. at 128.  The apex doctrine prevents the needless deposition of high level officials who are noticed solely because of the official’s position within the organization and is equally applicable to government organizations. In re Titus Cty, 412 S.W.3d 28, 35 (Tex. App.-Texarkana 2013, orig. proceeding) (quoting Simon v. Bridewell, 950 S.W.2d 439, 442 (Tex. App. – Waco 1997, no pet.) (per curiam)). Once a party  receives a deposition notice for a high ranking official, what should the party do?

To prevent an apex deposition, a party needs to initiate the Crown Central guideline proceedings by filing a motion and moving for protection and filing the corporate official’s affidavit denying any knowledge of relevant facts. The trial court must then evaluate the motion by deciding if the party seeking the deposition has “arguably shown the official has any unique or superior personal knowledge of discoverable information.” If the party seeking the deposition cannot show that the official has any unique or superior personal knowledge, the trial court should not allow the deposition to go forward without a showing, after a good faith effort to obtain the discovery through less intrusive means, that (1) 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. Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995).

A mere showing that the official has knowledge of discoverable information is not sufficient. The Crown Central guidelines require that the official have unique or superior personal knowledge of discoverable information. Otherwise, the apex guidelines would be meaningless if simple knowledge was all that had to be shown. In re Alcatel USA, Inc., 11 S.W.3d 173, 177 (Tex. 2000), citing, AMR Corp. v. Enlow, 926 S.W.2d 640 (Tex. App.-Fort Worth 1996, no writ) (applying apex guidelines and denying plaintiff’s request to depose Robert Crandall, American Airlines, Inc. CEO).

The apex guidelines do have some limits. If an official is named as a defendant based on some dispute that is unrelated to his status as a high-level official, then a plaintiff may have the right to depose the official as any other party. In re Titus Cty, 412 S.W.3d 28, 35 (Tex. App.-Texarkana 2013, orig. proceeding) (holding the doctrine only applies when the deponent has been noticed solely because of his corporate position).

Happy New Year’s to all our loyal readers. Your support and comments have been tremendously encouraging to us as we have now completed our fifth year as a blog. The opinions of this blog are solely the author’s and your comments, suggestions and replies should be sent to john@jrjoneslaw.com.

 

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