Protecting the Top Dog – Judge Blocks CEO Deposition

pyramidA federal judge in Philadelphia recently quashed a plaintiff’s efforts to depose the Chief Executive Officer of Johnson & Johnson in a whistle-blower case, holding that any likely benefit of the deposition was outweighed by the burden it would put on the company.

The decision in U.S. ex rel. Galmines v. Novartis Pharmaceuticals Corp. provides helpful guidelines for corporations seeking to protect their CEOs, board members, presidents and chief officers from discovery in employment lawsuits, especially when lower-level managers possess the same knowledge.

In Galmines, Judge Gene E.K. Pratter noted that any relevant information known by J&J Chairman and CEO (and former Novartis CEO) Alex Gorsky could be obtained more easily from lower-level managers, and cited to Rule 26(b)(2)(C) of the Federal Rules of Civil Procedure, which provides that discovery may be limited when “the burden or expense of the proposed discovery outweighs its likely benefit.”  Pratter also relied on the “apex doctrine,” an analytical framework used by courts to determine whether to permit the depositions of individuals at the “apex” of their corporations.  The doctrine recognizes that “depositions of high-level officers severely burden those officers and the entities they represent, and that adversaries might use this severe burden to their unfair advantage,” Pratter wrote.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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