INDIANAPOLIS (Legal Newsline) – A new ruling from the Indiana Supreme Court gives trial judges a lesson on when high-ranking executives can be forced into depositions.
In a lawsuit involving the National Collegiate Athletic Association, Jennifer Finnerty wants to depose three high-ranking executives over claims the NCAA failed to implement proper policies for preventing, diagnosing and managing football head injuries.
Her case is brought on behalf of Cullen Finnerty, who played football at the University of Toledo and Grand Valley State University. Two other plaintiffs joined the case.
They want to depose executives like NCAA President Mark Emmert. The organization already faces hundreds of similar lawsuits, but the Marion County trial judge in Finnerty’s case ordered the depositions.
On appeal, the NCAA asked the Indiana Supreme Court to adopt the “apex doctrine,” which requires plaintiffs to make “certain initial showings” before they are allowed to depose top-level corporate executives.
The court did not officially adopt the apex doctrine in a ruling issued July 19. It did, however, “harmonize its principles with our trial rules” as it issued the following guidance for trial judges:
-They must determine if the deponent qualifies as an apex official before relying on that status in deciding whether good cause for cancelling the deposition exists. To do so, they must determine if the executive lacks personal knowledge of relevant information, if the information can be obtained somewhere else and if the deposition would be unreasonably duplicative;
-They must determine if the requesting party has negated or rebutted the apex status or good cause showing – “For example, if the apex official asserts a lack of knowledge related to the litigation’s subject matter, the party seeking the deposition may counter this allegation with specific facts demonstrating that the official has relevant, personal knowledge. Or if an apex official alleges that the information sought is available through less intrusive discovery methods, the party seeking the deposition could show that alternative methods are unavailable, inadequate, or already exhausted,” the ruling says.
The trial court will now take these instructions and issue a new ruling on whether the depositions of Emmert and others will transpire.
The Product Liability Advisory Council, the U.S. Chamber of Commerce and the State of Indiana each filed amicus briefs in the case.