Court denies request for "apex" deposition of corporate officer of Defendant
In October of 2011, the Court of Appeals summarily reversed the trial judge's decision granting the plaintiffs the right to take the deposition of a corporate officer of the defendant in I-Fusion Technology v. TRW Automotive. It ruled that the plaintiffs had not demonstrated that the "apex" officer had "superior or unique" information regarding the subject matter of the litigation. After the plaintiffs secured Interrogatory answers from the defendant, the trial court again granted the right to depose the corporate officer and TRW, the defendant, again appealed the August 29, 2012 order.
The Court of Appeals panel again reversed the lower court judge, holding that its initial ruling precluded the plaintiffs from deposing the corporate officer to determine his knowledge of TRW's claimed wrong-doing. The higher court ruled that the new information discovered by the plaintiffs after the Court ruled it did not prove the need for a deposition was irrelevant, as the prior ruling barred the deposition. It also held that the plaintiff's claims that TRW's prior discovery was incomplete and evasive could not be used to justify a depostion of the corporate officer.
The Court held that in order to depose a corporate officer, the plaintiffs were required to show that the officer had "unique or superior information" AND that the plaintiffs could not obtain the information through less intrusive means. This rule, protecting corporate officers from "intrusive" discovery is a special protection that exists nowhere in the Court rules and nowhere else in litigation discovery. It expressly contradicts the case law allowing (and requiring) broad and good faith discovery by all litigants. It is a sign of our times, however, that corporate officers get special protection offered to no one else. A company accused of fraud can decide how it will provide evidence and avoid producing for testimony the very persons who allegedly perpetrated the fraud.