
	Litigation Insights December 28, 2011

Litigation Practice Group Leader

Brian M. Ziff

480.684.1105

Contributor

Sean P. Gallagher

sgallagher@clarkhill.com<= /span>

517.318.3060&n= bsp;

Michigan Adopts the 'Apex Deposition Rule'

for High-Ranking Corporate Officers<= /p>

Where a party seeks to depose a high-ranking governm= ent or corporate official, Michigan courts have adopted the "apex&q= uot; deposition rule, which can prevent or delay that deposition in certain circumstances. The apex deposition rule applies where a p= arty opposing a deposition shows by affidavit or testimony that the proposed high-ranking deponent lacks personal knowledge or any un= ique information relevant to the claims in the case. After this showin= g is made, the party seeking the deposition must demonstrate that the deponent has unique knowledge of the litigated issues and that the same information cannot be obtained by other, less intrusive mean= s, such as by deposing lower-ranking officials or employees, before moving forward with the high-ranking official's deposition. =

In the corporate context, Michigan courts adopted the apex deposition rule in a product liability case involving a claim for wrongful death blamed on a defect that allegedly caused sudden acceleration of a Toyota Camry. In Alberto v. Toyota Motor Corp., 289 Mich. App. 328, 331 (2010), the Michigan Court of Appeals considered the appeal of an order denying the defendant's motion for a protective order to prevent = the plaintiff from deposing two high-ranking corporate officials of Toyota Motor Sales USA. In that case, the plaintiff sought virtua= lly no discovery before seeking to depose Toyota's Chairman and its President. The plaintiff also failed to demonstrate that these two officials, despite their public appearances to discuss Toyota's general safety difficulties and recall efforts, had actual knowle= dge of design, engineering, manufacturing, or testing of the 2005 Cam= ry involved in the accident that led to this litigation. The Court, adopting and applying the apex deposition rule, vacated the trial court's order denying the motion for protective order to prevent = the depositions.

In Alberto, the majority of a Michigan Court of Appeals panel reasoned that Michigan courts had already applied the apex deposition rule in c= ases involving high-ranking government officials, and that its applica= tion in Michigan to the corporate context is consistent with Michigan's broad discovery and court rules. Drawing on references to federal= and state courts which have also adopted this rule, the Court explain= ed that the apex deposition rule promotes efficient discovery becaus= e it requires a showing that the apex officer has unique personal knowledge of the facts being litigated, ensures that other avenue= s of discovery are attempted before conducting the deposition of a high-ranking official, and prevents the use of depositions to har= ass, annoy, or unduly burden other parties. Furthermore, the Court recognized that high-ranking corporate officers, like their government counterparts, often have no particularized knowledge a= bout daily operations or particular facts leading to litigation, and a= lso have employment duties that require significant time commitment. Finally, the Court cautioned that the apex deposition rule does n= ot preclude the deposition of high-ranking corporate or government officials with relevant personal knowledge that cannot be obtaine= d by other discovery.

The dissenting opinion in Alberto argued that Michigan's existing discovery rules are adequate to protect high-ranking corporate officers from discovery abuses without adopting what it characterized as a 'new' apex deposition rule. The dissent distinguished Alberto from prior Michigan appellate authority preventing the depositions of high-ranking government officials b= ased on the public good at issue in those cases: that the public has a strong interest in not allowing a government official's effective functioning while in office to be disrupted by deposition without a showing of actual need, but that no such public interes= t is implicated by the deposition of a high-ranking private corporate = officer. Lastly, the dissent argued that the trial court did not abuse its discretion by denying Toyota's motion for a protective order, bec= ause the plaintiff provided a documentary basis for the trial court's finding that the Toyota executives had at least some information relevant to the issues in the case.

For further information about the content of this Litigation Insight Update, please contact Brian Ziff. To find out more ab= out Clark Hill and our Litigation team, visit clar= khill.com or call 800.949.3124

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