Good Result Under Apex Doctrine

A request for the deposition of a high-ranking executive poses the substantial risk of gamesmanship, blustering by plaintiff’s counsel and improperly burdensome discovery. The “apex doctrine” is designed to avoid such risks and protects high-level corporate officers from being deposed in certain circumstances. On August 19, 2015, United States District Court Judge Gene E.K. Pratter applied the apex doctrine to quash a subpoena to depose the former CEO of a defendant pharmaceutical manufacturer. The order provides a concise and helpful summary of the apex doctrine.

In a qui tam action – USA, ex rel. Galmines v. Novartis Pharmaceuticals Corp. (E.D. Penn., Case No. 2:06-cv-3213) – plaintiff alleged that Novartis engaged in off-label marketing for the eczema drug Elidel, resulting in alleged false claims for reimbursement under Medicare and Medicaid and also alleged violations of state anti-kickback statutes. Plaintiff sought to depose Alex Gorsky – the former CEO of Novartis and current chairman and CEO of Johnson & Johnson. Gorsky moved to quash the subpoena under the apex doctrine, among other reasons.

In an attempt to avoid application of the apex doctrine, plaintiff argued that Gorsky was involved in marketing the product, developing corporate responses to the FDA and authored emails regarding off-label sales. The court was not persuaded by these claims, finding that plaintiff failed to “articulate a specific and substantiated argument” to support the need for the deposition, thus quashing the subpoena.

In reaching its conclusion, the court noted that the burden of persuasion remained on the party seeking to quash, but that the apex doctrine provides a “rebuttable presumption that a high-level official’s deposition represents a significant burden upon the deponent.” This presumption is only rebutted upon proof on the apex doctrine’s two critical factors: (1) whether the high-level official has personal or superior knowledge of the facts at issue; and (2) whether the information sought could be obtained in a less burdensome way or from lower-level employees.

Plaintiff was unable to show why he could not obtain the same information from lower-level employees or through less burdensome means. Important to the court’s reasoning was the substantial discovery of corporate witnesses that had taken place, all without plaintiff attempting to elicit information about Gorsky’s personal involvement from those sources. Thus, the burden of the deposition outweighed its likely benefit.