Court of Appeals majority endorses so-called "apex deposition" rule in Toyota litigation

Judge Henry Saad wrote for two judges of a Court of Appeals panel, determining that Michigan should adopt the "apex deposition" rule. This rule, normally applied only to governmental witnesses, protects the highest-ranking executives of an entity from discovery subpoenas in the absence of a show of personal knowledge regarding the issues being litigated. The Estate of Guadalupe Alberto had attempted to depose two high-ranking Toyota executives in a sudden-acceleration, wrongful death lawsuit. The two executives, Yoshimi Inaba and Jim Lentz, had testified before Congress and made numerous public appearances for the company on the issue of sudden-acceleration, and the family's attorney argued that with their comprehensive knowledge of the problem, they were an appropriate place to begin discovery. Judge Saad, ever the protector of insurance and corporate interests, argued that corporate executives need the special protection of the "apex deposition" rule to assure efficiency and to protect them from harassment. In a dissenting opinion, Judge Kathleen Jansen noted that the current, written Court Rules governing discovery contain ample provision for protective orders protecting all defendants from burdensome or harassing discovery. In Jansen's opinion, there was no need and no compelling argument for judicially creating a special protection for corporate executives outside the ambit of the properly-promulgated Court Rules. Perhaps the Supreme Court will have the final say on this issue---and most likely it will be announced in a 4-3 decision.