More on Apex Depositions

Bloomberg Law reports that Meta Files for Appellate Relief to Bar Zuckerberg Deposition (Jul. 11, 2025).  Mr. Ufonobong Umanah wrote that “Meta claims Ninth Circuit courts have split over apex doctrine.”  He added:

The presumption that CEOs get to avoid depositions—formalized under the apex doctrine—may be weakening. But some experts have defended the doctrine by warning about the discovery abuses that Meta alleges are at play here.

Meta asserts that plaintiffs “’have not seriously tried to gather evidence from other sources about Mr. Zuckerberg’s conduct or intent’ and accused them of deploying ‘head-in-the-sand tactics’ to pressure the social media company to settle rather than deal with litigation burdens.”  Id.

Meta’s Ninth Circuit filing is a Petition for a Writ of Mandamus to the United States District Court for the Northern District of California.  It alleges that plaintiffs sought to depose Mr. Zuckerberg “before deposing a single other witness.”  Id.  And, it asserts that several other witnesses have “relevant knowledge.”  Id. at n. 2.  Further, it claims that plaintiffs canceled one deposition and “studiously avoided” learning facts in another.  Id.

Meta asserts that the “governing standard is familiar” but that “how to apply the doctrine properly is unsettled….”  It wrote that “district courts disagree about whether an executive’s status as a final decisionmaker on pertinent company policies or actions itself justifies an apex deposition.”  Meta Platforms, Inc. v. United States District Court for the Northern District of California, San Francisco , Docket No. 25-4172 (9th Cir. Jul 07, 2025), Court Docket.

Meta asserts that, under the District Court’s reasoning “the very status that triggers the apex doctrine in the first place – being a high-level executive who exercises final decision-making authority – itself overcomes the doctrine’s protections.”  Id.

And, Meta asserts that, because discovery orders are not generally appealable, absent mandamus, the scope of the doctrine will not be addressed at the appellate level. Id. It requests that mandamus issue to vacate orders compelling Mr. Zuckerberg to sit for a deposition.

This case is worth watching.

Much has been written about the “apex doctrine.”  It applies in the context of private CEO’s, such as in Meta, and in the context of government litigation with requests to depose high-level government officials. Its contours are often uncertain and may be altered by agreements:

• “Apex” Depositions of High Government Officials Under the “Morgan” Doctrine (May 20, 2025);
• Based on the ESI Protocol, the Limiting “Apex Deposition” Doctrine Applied to Objections to the Designation of a Document Custodian (Jul. 1, 2025).

Any decision that brings additional clarity will be important.