If your company does business in West Virginia, and you find yourself involved in civil litigation, you will be glad to know that our Supreme Court of Appeals just issued an opinion restricting a ?straight to the top? approach to pre-trial discovery depositions.
A common tactic for lawyers suing corporations has been to schedule or ?notice? the company?s CEO for a deposition, with nothing more than the assertion that he or she SHOULD know or MUST know something or have information that falls within the broadly defined ?scope of discovery.?
Of course, that tactic is also subject to abuse, given its harassing and unnecessarily burdensome effect, particularly where the information sought can be obtained by other means or from other persons.
In SER Mass Mutual Insurance v. Sanders, No. 11-1514, (W.Va. Sup Ct. of Appeals, February 24, 2012), the Court extended ?the Apex rule?, which it adopted in 1996 for public officials, to any high-ranking corporate official. The new rule of law is:
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.
SER Mass Mutual Insurance v. Sanders, No. 11-1514, (W.Va. Sup Ct. of Appeals, February 24, 2012), Syl. Pt. 3
If you find yourself in this situation, make sure your lawyers know there is a remedy for this potential abuse of the discovery process. It is not (and there cannot be) a ?blanket prohibition? of the deposition of any high-ranking official ever, but this well-reasoned decision imposes a standard of reasonableness and common sense.
Click here to read the WV Supreme Court of Appeals "Current Term Opinion List," where the full text of the opinion can be obtained.