Based on the ESI Protocol, the Limiting “Apex Deposition” Doctrine Applied to Objections to the Designation of a Document Custodian

A motion to compel the designation of an “apex”  non-party document custodian was granted in In Re Mosaic LLM Litigation, 2025 WL 176001 (N.D. Cal. Jun. 26, 2025).  The limiting “apex doctrine” generally does not apply to document custodians.  Id. However, the stringent “apex doctrine” applied in this instance, due to the terms of an ESI Protocol.  Id.

In a prior decision, the court wrote that:

Plaintiffs are five authors who have sued Defendants Databricks and Mosaic ML for alleged copyright infringement arising from Defendants’ large language models, or LLMs, which are used to train artificial intelligence. Plaintiffs initially alleged that Mosaic ML trained some of its LLMs, the MPT models, using a dataset that contained some of their works.

In Re Mosaic LLM Litig., 2025 WL 1755650, at *1 (N.D. Cal. June 25, 2025). Leave to amend the Complaint was granted and this motion followed.

The ESI Protocol required that the responding party designate ten document custodians.  Once that was done, the requesting party could identify three more, “subject to limited objections.”  2025 WL 176001, at n. 1.

In the motion to compel, plaintiffs asserted that the non-party CEO of defendant Databricks, Dr. Ali Ghodsi, should be designated as a document custodian.  They asserted that he was “uniquely situated” to provide information because of his “leadership role and involvement in the acquisition of Defendant MosaicML.”  Id., at *1.

Defendants disagreed, calling plaintiffs’ arguments mere “speculation that [Ghodsi] must have unique information simply by virtue of serving as CEO.”  Id.

Plaintiffs prevailed.

First, the court wrote:

Defendants frame their objections to Ghodsi serving as a custodian as being “on the basis of Apex considerations.” … The apex doctrine is essentially the courts’ recognition that deposing high-level officers of large corporate and governmental entities imposes meaningful burdens on those entities and witnesses, in part because in the absence of any restrictions, sitting for depositions could quickly become a full-time job for leaders of entities that face extensive litigation.

2025 WL 176001, at *1 (cleaned up; citations and quotations omitted).

Second, the court explained a narrowing of that doctrine: “The Court notes that the apex doctrine is generally inapplicable in the context of document custodians.”  Id. (citations omitted).  Under that principle, apparently Dr. Ghodsi could be designated without any consideration of the limitations imposed by the “apex doctrine.”  However, that did not end the inquiry on the facts presented.

Third, the court looked to the ESI Protocol.  It wrote:

However, the parties’ stipulated ESI Protocol expressly provides that, if the requesting party (here, Plaintiffs) requests to designate three additional document custodians, the producing party may “object” to Plaintiffs’ selections “only on the basis of Apex considerations[.]”

Id. (emphasis added). That provision made the inapposite “apex doctrine” applicable to defendants’ objection to the request to designate this document custodian:

The Court accordingly considers the appropriate apex principles—namely, the executive’s access to relevant information, such information’s uniqueness, and burden of production—in this decision.

Id.

Plaintiffs argued that Dr. Ghodsi “’near undeniably has unique documents relevant to Plaintiffs’ vicarious infringement claim,’ as he was the ‘architect, the engine, and the closer’ of Databricks’ acquisition of MosaicML.”  Id.  In support of that assertion, “Plaintiffs cite to interviews where Ghodsi explains he initiated Databricks’ acquisition of MosaicML, which, allegedly, trained its LLMs on datasets including Plaintiffs’ copyrighted works.”  Id.

The court agreed:  “The Court finds it credible that, given Ghodsi’s role in the acquisition, he will have documents regarding Databricks’ acquisition of Mosaic, which are arguably relevant to Databricks’ knowledge of Mosaic’s alleged infringing activity and the financial benefit Databricks believed it could obtain from Mosaic’s infringing activity.”  Id.  It “seem[ed] highly plausible” to the court that Dr. Ghodsi had discoverable information.

The court also rejected defendants’ argument that there would be an overlap between any documents that Dr. Ghodsi had and those of the dozen other custodians.  It was not necessary to show that Dr. Ghodsi had “unique” information. Id. at *2.  “The idea that responsive documents will necessarily be found in other custodians’ records is not sufficient to defeat a search of a custodian’s files.”  Id. at *2 (cleaned up; citations and quotations omitted).

Further, the court wrote that Dr. Ghodsi, “as CEO of the parent company, may well have unique information” regarding LLM development. Defendants did not assert undue burden.

On that record: “Plaintiff’s request to designate[] Ghodsi as a document custodian is accordingly GRANTED.”  Id. at *2.

While In Re Mosaic LLM Litigation is a sophisticated case with sophisticated counsel, and there is very likely a good reason for asking for a designation of Dr. Ghodsi as a document custodian, it is unclear to me why a Fed.R.Civ.P. 45 subpoena duces tecum could not have been served on the non-party document custodian and avoided the designation issue.  Rule 45(d)(2) states:  “A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.”  That might also have circumvented the “apex” issue.  However, there may have been practical obstacles, such as geographic location, that may have made use of Rule 45 less favorable.

It is also not clear to me which party carried the burden of proof under the “apex doctrine.”  One recent case placed the burden on the party claiming an exception to the doctrine.  Mayor & City Council of Baltimore v. Lambert, __ Md. App. __, 2025 WL 1291491 (Appl. Ct. Md. May 5, 2025),

For more on the “apex doctrine” outside of the context of document custodians, please see “Apex” Depositions of High Government Officials Under the “Morgan” Doctrine (May 20, 2025).