Rauchwerger’s & Errera’s “Top-Dog Depositions...” Article Quoted In Wired Magazine
March 22, 2011
Wired Magazine's March 22, 2011 on-line edition article, "Jobs Ordered to Testify in ‘RealNetworks' Suit - Be Careful What You Wish For," about Steve Jobs - being ordered to testify in a 2005 class-action lawsuit involving whether iTunes constitutes a monopoly, quotes from Dean S. Rauchwerger's and Michael S. Errera's published article, "Top-Dog Depositions: The Hurdles to Overcome."
Wired observed, "[s]itting CEO depositions are pretty uncommon, and often as hotly contested as the underlying litigation itself. They are prized by settlement-minded plaintiffs if only for the opportunity to "embarrass, annoy and exacerbate litigation." Rauchwerger's and Errera's often referenced article, pointed out the vagaries of "Top-Dog Depositions," also known as CEO or Apex-type depositions." "On a tactical basis, the executive deposition is pursued so that your adversary's ‘figurehead' directly feels the ‘hot buttons' of your case, real-time, without layers of filtering and spin." In light of the vital role high-level executives, including the Top-Dog CEOs, play in corporate management, decision-making and policy creation, Apex-level depositions are frequently chased in a wide-variety of tort and business litigation scenarios. Of course, they are typically resisted, as unnecessary and harassing.
When seeking or resisting a Top-Dog deposition - the stakes are often high and the battle is hotly contested on multiple hurdles:
- Whether the high-level executive deposition serves to only embarrass, annoy and exacerbate litigation, without yielding sufficiently significant discoverable information that could not be obtained by way of less intrusive means?
- Whether the high-level executive holds unique or superior personal knowledge over other on relevant issues?
- Whether the information sought from the high-level executive could alternatively be pursued through depositions of lower-level individuals in the corporate hierarchy?
- Whether less intrusive measures, like written discovery requests, would be sufficient?
Senior management depositions provide the opportunity for the corporate decision-maker to directly consider the merits of the underlying charges and "to personally present a counter-punch to the jabs being asserted." If successful in overcoming the hurdles gained, as the pursuing party, the apex-deposition is a "rare opportunity for your counsel to show the merits of your case and the passion that you bring to bear - eyeball-to-eyeball !"
For the responding party, the CEO-level deposition is also a power opportunity to "show that your corporate client is not an anonymous, impersonal entity, but rather an organization premised on ethical corporate values, sound policies/procedures and comprised of dedicated, caring employees." Naturally, the Top-Dog executive, who ultimately testifies, needs to be confident, mindful of case issues, theories and themes, and able to testify in a compelling, credible manner. If you are interested in an in-house client seminar on CEO/Apex depositions, or wish to discuss related issues, please contact CM partner, Dean S. Rauchwerger (drauchwerger@clausen.com) or associate Michael S. Errera (merrera@clausen.com).
