“Apex” Depositions of High Government Officials Under the “Morgan” Doctrine

Mayor & City Council of Baltimore v. Lambert, __ Md. App. __, 2025 WL 1291491 (Appl. Ct. Md. May 5, 2025), addressed the important issue of “apex” depositions in the governmental context.  Plaintiffs, a parent and a school-age minor, in a personal injury claim against a school system sought the depositions of nine high-ranking government employees.  The intermediate appellate court reversed an order in their favor and remanded for additional fact-finding.

An “apex” deposition arises when a party seeks the deposition of a high-ranking official in the opponent’s organizational structure.

In the private business context:  “Not surprisingly, the law surrounding apex witnesses is somewhat indeterminate. When ruling on protective orders for executive depositions, courts generally ask whether: (1) the official has unique personal knowledge of the disputed matter; (2) the information can be collected through less intrusive discovery methods; and (3) the deposition unduly interferes with the officer’s professional duties.”  In Re: Deere & Company Repair Services Antitrust Litigation, 2025 WL 1435061, at *1 (N.D. Ill. May 19, 2025)(deposition of CFO and Senior V.P. of private entity).

The Deere court explained:  “More of a legal theory than a formal ‘doctrine,’ this line of cases encourages courts to consider the risk that very valuable executive time would be wasted where a high-ranking executive officer has no real information….  Part of the rationale is that parties should not be incentivized to force a settlement in a nuisance case by using harassing discovery.” Id. at *1 (cleaned up).

Lambert and the Morgan doctrine apply that concept when the government is a party.  The Lambert Court wrote that the doctrine “bears some similarities to the deliberative process, or executive, privilege.”  Id. at n. 13.

In Lambert, nine current and former employees of the City health department sought a protective order to shield them from being deposed by plaintiffs.  They asserted that, under the “Morgan doctrine,” as high-level government employees, they could not be questioned concerning their “mental processes.”

Plaintiffs were a parent and minor, L.L.  The City schools provided reproductive health care, including Nexplanon.  Plaintiffs alleged that Nexplanon was  not approved for minors and “that the policy to provide Nexplanon in [schools] was targeted at impoverished and minority children in Baltimore City public schools, particularly at young black women such as L.L.”  In the Complaint, it was alleged that “Nexplanon is a third-generation, long-acting reversible contraceptive that is inserted into a patient’s arm, and releases contraceptive over a period of time.”  It was alleged that L.L. was pressured to receive Nexplanon and suffered complications due to improper insertion, as well as lack of informed consent.

There were 19 defendants, “including the Board, the Mayor and City Council of Baltimore, the estate of the nurse who administered Nexplanon to L.L., and the nine prospective deponents.”  They included current and former City health commissioners, assistants, and other high-level officials, listed at page *2 of the Court’s opinion.

Plaintiffs/appellees sought to schedule nine depositions.  Defendants “objected to the depositions and offered to designate a representative to be deposed in the alternative.” When plaintiffs persisted, defendants moved for a protective order “that [plaintiffs] not be permitted to depose any of the nine prospective deponents.”  The trial court denied the motion.  Defendants appealed.

The Appellate Court wrote that, while discovery orders are not generally appealable, denial of a protective order under the Morgan doctrine is one of the rare exceptions. Id. at n. 8.

This blog focuses only on the Morgan doctrine, and not on the defendants’ argument that the depositions “would be irrelevant, duplicative, unduly burdensome, and the information sought can be obtained through less intrusive means.”

So, what is the Morgan doctrine a/k/a the “apex” doctrine? The Lambert Court explained:

The Morgan doctrine is federally created, arising out of United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). In Morgan, the Supreme Court of the United States noted its concern that the deposition of the Secretary of Agriculture had compromised “the integrity of the administrative process[.]” Id. at 422, 61 S.Ct. 999. Since Morgan, “courts have relied on Morgan to hold that a high-ranking government official should not—absent exceptional circumstances—be deposed or called to testify regarding the reasons for taking official action[.]” Lederman v. N.Y.C. Dep’t of Parks & Recreation, 731 F.3d 199, 203 (2d Cir. 2013) (citing to precedent from eight federal circuit courts of appeal). We have held that the doctrine, which is an exception to general discovery principles, provides that “high-ranking government officials are not subject to being deposed with respect to their mental processes in performing discretionary acts.” Johnson, 199 Md. App. at 323, 21 A.3d 199 (citing In re Office of Inspector Gen., R.R. Ret. Bd., 933 F.2d 276, 278 (5th Cir. 1991) and Singer Sewing Mach. Co. v. NLRB, 329 F.2d 200, 206–08 (4th Cir. 1964)). The privilege applies to both current and former officials. Id. The doctrine is sometimes known as the “mental process” privilege or “apex doctrine.” See Singer Sewing, 329 F.2d at 206; Florida v. United States, 625 F. Supp. 3d 1242, 1245–46 (N.D. Fla. 2022). [Emphasis added].

The Lambert Court wrote that the doctrine is not an absolute bar to discovery.  Id. at *5.

There are two recognized exceptions to the Morgan doctrine: if (1) extraordinary circumstances are shown … or (2) the official is personally involved in a material way.”

Id. (cleaned up).

To come within the first exception of extraordinary circumstances, the party seeking the deposition must show:

(1) that the official’s testimony is necessary to obtain relevant information that is not available from another source; (2) the official has first-hand information that could not be reasonably obtained from other sources; (3) the testimony is essential to that party’s case; (4) the deposition would not significantly interfere with the ability of the official to perform his [or her] government duties; and (5) that the evidence sought is not available through any alternative source or less burdensome means.

Id. (citation omitted).

To meet the second exception of personal involvement, a showing of knowledge of information that “may” be helpful is insufficient. Id.

However:  “If the party seeking the deposition is able to prove either of the two recognized exceptions, the privilege is overcome, and the deposition should be permitted.”  Id.

There is an important predicate to the Morgan doctrine: “The Morgan doctrine applies only to “’high-ranking’ government officials; not every official may claim the privilege.”  Id. at *6.  And, the Lambert Court wrote that Maryland has no standard to govern that analysis, and federal courts are not uniform.  Instead, it is a case-by-case decision.  Id.  While the majority of courts apply the doctrine narrowly, some do not.  Id. at n. 11. The Court provided a useful analysis of prior applications that is too lengthy to repeat here.

The Lambert Court proceeded to apply the doctrine.  Id. at *7, passim.

Inquiring of the prospective deponents their role in developing the policy to offer Nexplanon and the procedures for its implementation would involve questions regarding their reasoning for taking certain actions over others. Thus, the information sought through deposing Appellants concerns their “mental processes in performing discretionary acts” and is within the scope of the Morgan doctrine.

However, in their motion for a protective order, Defendants were required to show “injustice, prejudice, or consequential harm” as to each of the nine deponents.  Id. at *8.  Because the trial court’s findings were not clear, the Appellate Court remanded to that court “to clarify its finding with respect to the applicability of the doctrine to each prospective deponent.”  Id.

The Lambert Court then analyzed the two exceptions, with the burden of proof shifting to the party claiming the exceptions.  Here, however: “The arguments [plaintiffs] advance for both exceptions are general to all nine prospective deponents and do not address the exceptions as they might apply to the prospective deponents individually.”  Id. at *8.  Finding the record complex, the Appellate Court wrote:

On remand, should the circuit court find that the Morgan doctrine is applicable, the circuit court should then determine as to each deponent to which it finds the doctrine is applicable, the existence, if any, of an applicable exception. We will clarify the standards for both exceptions for guidance purposes.

Id. at *9.

Summarizing very briefly, the personal involvement exception requires a hands-on involvement intertwined with the issues in controversy.  The extent of personal involvement must be substantial enough that “fundamental fairness” requires the deposition.  Id. at *9.

Summarizing very briefly, the extraordinary circumstances exception requires all five conjunctive elements listed above.  “Therefore, Appellees are required to demonstrate that the prospective deponents possess unique information which cannot be obtained from any alternative sources available to Appellees.”  Id. at *9.  Here, because Appellants offered to designate deponents, “to show that extraordinary circumstances exist, Appellees must also demonstrate that the unique information possessed by each prospective deponent cannot be obtained from the designee.”  Id. at n. 15.

The decision in Lambert was: “We will therefore remand the issue to the circuit court to clarify whether it finds that the Morgan doctrine is applicable to each of the prospective deponents and, if so, whether Appellees met their burden under the standard for either available exception to overcome the privilege as to each of the prospective deponents.”

A highly informative and comprehensive Bloomberg article, M. Vilensky, Once Too Big to Testify, CEOs Feel Backlash to ‘Apex Doctrine’ (Oct. 9, 2024), reports that the doctrine arose in a 1985 lawsuit involving the chief of Chrysler Corporation, Lee Iococca.[1]  As Mr. Vilensky pointed out in Bloomberg, there is good reason for it:

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.

….

Valdi Licul of Wigdor LLP, …  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 apex doctrine has its critics.  In the private party context, the Deere court wrote:

One might wonder why fat cats receive this protection when everyday Joes must still be subjected to the wringer. See Hon. Iain D. Johnston, Apex Witnesses Claim They Are Too Big to Depose, Litigation, Fall 2014, at 41; Mike Vilensky, Once Too Big to Testify, CEOs Feel Backlash to ‘Apex Doctrine’, Bloomberg Law (Oct. 9, 2024, 4:01 AM CDT), https://perma.cc/C69E-X9A6.

2025 WL 1435061 at n. 2.  Bloomberg states that:

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….

“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.

M. Vilensky, Once Too Big to Testify, CEOs Feel Backlash to ‘Apex Doctrine’ (Oct. 9, 2024). The article continues:

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.”

In a different context:  “Sitting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty.” Clinton v. Jones, 520 U.S. 681, 704 (1997)(separation of powers).

As previously explained, this blog does not address the “bread-and-butter” discovery issues that the Lambert Court resolved. Id. at *10, passim.

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[1] Mulvey v. Chrysler Corp., 106 F.R.D. 364 (D.R.I. 1985).