Once Too Big to Testify, CEOs Feel Backlash to 'Apex Doctrine' (2025)

In 2022 Mark Zuckerberg escaped being deposed in Washington, D.C.'s data-privacy lawsuit against Meta Platforms Inc. by invoking the so-called apex doctrine, a four-decade-old principle that top corporate officers are generally too busy and important to be forced to give testimony.

But last month Zuckerberg, making the same argument, wasn’t so lucky: a federal judge denied Meta’s bid to block the CEO’s deposition in a copyright suit against the company over its AI model.

The tech titan’s change in fortune reflects a backlash against the apex doctrine by judges swayed by populist arguments that it unfairly favors the powerful. McDonald’s Corp. CEO Christopher Kempczinski, Microsoft Corp. CEO Satya Nadella, activist investor Carson Block, Madison Square Garden chief James Dolan, and now Zuckerberg all lost bids in the past year to duck depositions under the apex doctrine in federal courts.

Meanwhile, some state courts, like Washington, are ruling that they won’t recognize the apex doctrine, full-stop.

“Single moms, single dads, who’ve got part time jobs, are taking classes, are taking kids to daycare—is their time less valuable than the CEO of a major corporation sitting in a meeting?” Judge Iain D. Johnston, an Illinois federal judge who wrote a frequently-cited law review article on the doctrine, said in an interview with Bloomberg Law. “There should be a healthy skepticism of people’s self-importance.”

A different Chicago area judge’s order in January that Kempczinski sit for a deposition, in a lawsuit by an ex-employee alleging workplace race discrimination, marked a turnabout from the 1985 ruling involving Chrysler Corp. chief Lee Iacocca that inspired the apex doctine.

In that case, Iacocca was shielded from being deposed in a personal injury lawsuit over an allegedly defective Dodge van as being a “singularly unique and important” individual to Chrysler. When McDonald’s tried the same argument almost four decades later, the judge ruled that "[t]he more important consideration...is the executive’s knowledge of relevant information.”

“There’s no free pass anymore,” said Gerald Maatman Jr., a partner at Duane Morris LLP who represents corporate defendants and CEOs invoking the doctrine in class actions. “There’s no presumption that just because you’re the CEO, you get to avoid depositions.”

The ruling against Dolan last month was a victory for former New York Knicks star Charles Oakley, who has claimed he was assaulted while being ejected from a Knicks game at Madison Square Garden. Oakley argued Dolan had knowledge of the events in question because he was in the arena that night.

Dolan tried to invoke the apex doctrine, but the US District Court for the Southern District of New York ruled that he “had a courtside seat to the action here.”

“The MSG defendants have failed to convincingly show that his deposition will result in harassment or potential disruption of the business of MSG,” the court concluded on Sept. 10.

Valdi Licul of Wigdor LLP, who represents Oakley and has long fought to depose apex witnesses, said the doctrine “started out as a principle that if you tripped on the sidewalk, you don’t get to depose the mayor.”

“The problem is over the years high-level executives have turned it into a special protection for them saying, ‘I’m presumptively too busy for you, court.’ It’s an elitist doctrine that shouldn’t be a doctrine,” he said.

Shifting Legal Landscape

The apex doctrine generally comes into play when a company or lower-level executives —not the CEOs—are the named defendants but plaintiffs argue the CEOs have information relevant to the conduct of subordinates and the workplace as a whole. Executives seeking to invoke it argue they don’t have information that couldn’t be gleaned from someone lower ranking, and that sitting for the deposition would impose a hardship in light of their responsibilities.

In defense of the doctrine, some attorneys, academics, and judges say it helps avoid abusive discovery tactics that could force settlements by threatening CEOs with costly, time-consuming, needless, and potentially embarrassing depositions.

“If every time a major corporation gets sued it’s possible for the plaintiff to take the deposition of a CEO, how in the world is the CEO going to do their job?” said Nicole Iannarone, a civil procedure professor at Drexel University Thomas R. Kline School of Law. “That doesn’t mean that a CEO can never be deposed. What it means is that there needs to be a reason to get the testimony from the CEO.”

The spate of recent high-profile rulings against C-suite VIPs has given a boost to plaintiff attorneys and led corporate defenders to strategize differently.

David Fertig, a partner at BakerHostetler who’s litigated both sides of the apex doctrine, said the question in litigation is shifting to whether the apex witness has unique information relevant to a case, rather than if the CEO is too busy or otherwise important to be deposed. In some instances, legal fights ensue over limiting the scope and length of the deposition, rather than whether the deposition can happen, Fertig said.

“There’s increasing concern and public outcry for people of significant wealth and power to answer for corporate conduct,” Fertig said. “Courts have therefore shown some reluctance to the idea that merely by virtue of their status as senior executives, apex witnesses are immune from deposition.”

Florida Shields Musk

Even as cracks in the doctrine emerge, courts vary greatly by circuit and state in how or if they follow it.

In 2021, Florida codified the doctrine into its state rules of civil procedure. In January, a state court shielded Tesla Inc. chief executive Elon Musk from a deposition. Attorneys for the plaintiff—the father of a teenage passenger killed in a 2018 Tesla crash that also killed the driver—said Musk called the driver’s father after the accident and discussed the car’s speed software, but Musk said he didn’t remember discussing that on the call.

“Requiring Mr. Musk to sit for a deposition would serve no purpose other than to harass and burden Tesla and disrupt Mr. Musk’s ability to meet his obligations to consumers, stockholders, Tesla’s employees, and other activities integral to his position as CEO,” the Florida court said.

But Washington state’s Supreme Court in 2023 not only allowed a deposition of Umpqua CEO Cort O’Haver, it ruled the apex doctrine doesn’t apply in Washington’s courts because it “undermines the right of access to courts.” Discovery rules prohibit deposing someone without knowledge relevant to the case, so there’s no need for a VIP carve-out, the court reasoned.

The case involved a home loan borrower who allegedly got a raw deal from a bank officer who’d had his professional license revoked before Umpqua hired him. The plaintiff’s attorney, Kevin Roberts, sought to depose O’Haver over the bank’s hiring practices, arguing not just that O’Haver had relevant information, but that the doctrine runs counter to constitutional notions of equal justice.

‘Repugnant’ to Blind Justice

For some attorneys, a case-by-case chipping away isn’t good enough. They’re seeking its demise.

“Considering the demographic realities of our country’s socioeconomic strata generally and executive-level positions particulary, the euphemistically titled ‘apex doctrine’ is a ‘Discrimination Doctrine’ plain and simple,” the plaintiff firm Robbins Geller Rudman & Dowd wrote in a letter to a California federal court last year. “It is repugnant to any notion that justice is blind.”

The firm was asking the court to remove time and scope limits on depositions of Google executives Larry Page and Sundar Pichai in a class action securities suit against Alphabet Inc. The case settled before depositions.

“As you probably discerned, I think the entire concept is a disgrace,” Robbins Geller attorney Jason Forge said in an interview.