A Crowning Achievement in Protecting High Ranking Officials from Unreasonable Depositions: The Impact of the Crown Central Test

scott a. mager

Abstract

In an increasingly litigious society, the attempt to first set depositions of high-ranking corporate executives, who are often referred to as “apex officials,” has become commonplace. While these executives rarely have personal knowledge of the facts and issues surrounding a given case, broad-stroked claims against parent companies and lax discovery rules seem to serve as a launching pad to harass executives and extort settlements through threats of—and in many cases the actual taking of—depositions from chief executive officers, chief operating officers, chief financial officers, or other apex executives. In recent years, courts across the country have sought to articulate the most useful analysis to apply when considering discovery directed to such high ranking officials, with most courts building upon the workable test set out in the Texas case of Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex. 1995).

While there are appropriate times for the taking of such depositions, more often these corporate officials, who have little time for this kind of intrusive and abusive deposition process, may either choose to pay larger settlement amounts or fail to take sufficient steps to protect themselves against this kind of potentially improper discovery.

This article identifies the courts across the country that agree to require the party seeking to depose a corporate president or other high level corporate official to show that the official has any unique or superior personal knowledge of discoverable information and that there are no less intrusive means of securing that information.