This month’s For the Defense magazine published by the Defense Research Institute has an interesting article by Christopher M. Tauro and Kip J. Adams entitled “Use of the Apex Doctrine.”  The article has a comprehensive survey of the law regarding protecting high-level corporate executives from unnecessary depositions, where the executive has little or no knowledge of relevant facts.  (These articles are usually posted online by DRI but I haven’t found this one there yet.)

This is an issue that frequently arises in class actions.  In some cases (securities cases being a typical example) it may not be possible to prevent depositions of senior executives because they were personally involved to a substantial extent in relevant facts.  In other cases the executive knows nothing or hardly anything about the issue involved in the class action and there is a strong basis to invoke the apex doctrine.  A couple things I think insurers in particular should give careful consideration to:

  • Most large insurance organizations have a number of writing companies that issue the insurance policies, as well as a publicly-traded parent company, sometimes with other entities in between.  The organizations should give careful thought to whether the senior executives of the parent company should be the officers of the companies that write the policies.  If the parent company executives are not officers of the companies that issue the policies (and become the defendants in class actions and other litigation), that can strengthen arguments against depositions of parent company executives. 
  • Some insurance policies have officers of the company putting their signatures on the policy forms.  Again, careful thought should be given to whose signatures appear there.  No doubt some plaintiffs’ lawyers will argue that they have the right in a class action or other complex litigation to depose the executives whose signatures appear on their clients’ policies, even if they have no personal involvement in handling of claims or underwriting.