Apex Depositions: Can an Employee Depose Your CEO in California?

In 1992, a California Court of Appeal set the rule for deposing a company’s top executive. In Liberty Mutual Insurance Co. v. Superior Court (1992) 10 Cal.App.4th 1282, the court held that the trial court “should first determine whether the plaintiff has shown good cause that the official has unique or superior personal knowledge of discoverable information.” If not, the plaintiff usually has to try other discovery first. That rule gives employers a real tool against CEO deposition notices in employment cases.

What is an apex deposition?

It’s the deposition of an executive at the top of the company. The Liberty Mutual court described the concern directly: “‘apex’ depositions such as the one in this case, when conducted before less intrusive discovery methods are exhausted, raise a tremendous potential for discovery abuse and harassment.”

Employment plaintiffs notice these depositions for several reasons. Sometimes the CEO really was involved in the decision. Sometimes the notice is pressure, because a day of the chief executive’s time costs the company more than the plaintiff’s lawyer. The doctrine is designed to sort the first kind from the second.

What does the employer have to show to stop the deposition?

The executive moves for a protective order, and the court asks about personal knowledge. Under Liberty Mutual, when the plaintiff hasn’t shown unique or superior personal knowledge, “as will presumably often be the case in the instance of a large national or international corporation, the trial court should issue the protective order and first require the plaintiff to obtain the necessary discovery through less intrusive methods.”

The protective order itself comes from the Discovery Act. Code of Civil Procedure section 2025.420(b) lets the court, “for good cause shown,” make any order needed to protect a deponent “from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” The available orders include “That the deposition not be taken at all” and “That the method of discovery be interrogatories to a party instead of an oral deposition.”

The motion needs evidence. A declaration from the executive explaining the company’s size, the executive’s role, and the absence of personal involvement in the plaintiff’s hiring, discipline, or termination is the core of it. The court in Liberty Mutual noted that “In the case of an official at the head of corporate operations, however, expressions of ignorance of a specific case or claim are not implausible.”

What are the less intrusive alternatives?

The court listed three. Under Liberty Mutual, they “would include interrogatories directed to the high-level official to explore the state of his or her knowledge or involvement in plaintiff’s case; the deposition of lower level employees with appropriate knowledge and involvement in the subject matter of the litigation; and the organizational deposition of the corporation itself.”

The organizational deposition is now governed by Code of Civil Procedure section 2025.230, which requires the company to “designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf.” Offering a well-prepared person most qualified on the topics the plaintiff says the CEO knows about is often the most persuasive way to show the apex deposition isn’t needed.

Can the plaintiff still get the CEO’s deposition later?

Yes, if the other routes don’t work. The Liberty Mutual court said, “Should these avenues be exhausted, and the plaintiff make a colorable showing of good cause that the high-level official possesses necessary information to the case, the trial court may then lift the protective order and allow the deposition to proceed.”

That’s why the defense position should be honest from the start. If the executive did approve the termination, sat in on the investigation, or exchanged emails with the plaintiff about the complaint, a protective order is unlikely to last, and a declaration that overstates the executive’s distance from the case can hurt credibility on everything else. The stronger approach in those cases is to negotiate limits on time and topics.

Does the apex doctrine protect owners of small companies?

Less so. The doctrine rests on the idea that the head of a large organization “will generally not have knowledge of a specific incident or case handled several levels down the corporate pyramid,” according to Liberty Mutual. At a 40-person company where the owner signs every termination letter, there may be no lower level to go to.

Owners of smaller businesses should assume they’ll be deposed if they made or approved the decision being challenged. The protective order is still useful for limiting how long the deposition runs and what it covers under the options in section 2025.420(b).

How do the options compare?

What should an employer do after receiving a deposition notice for its CEO?

1. Preserve the executive’s messages and calendar entries that mention the plaintiff or the challenged decision, under the existing litigation hold.
2. Calendar the deposition date and the deadline to move for a protective order, and remember that the motion requires a meet and confer declaration under the Discovery Act.
3. Identify the people who actually made, reviewed, or approved the employment decision, and confirm the executive’s real role before anyone signs a declaration.
4. Pull the organizational chart and the decision documents that show the reporting lines between the executive and the plaintiff.
5. Talk to a lawyer before responding to the notice, offering dates, or proposing a substitute witness.

Discovery fights like this one are a regular part of employment litigation defense for California companies.

Apex deposition questions from California employers

Does the apex doctrine apply if the CEO is named as a defendant?

Often, yes. In Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, two state agency directors named as defendants got a protective order because the plaintiff “failed to show that petitioners had any personal involvement” and hadn’t exhausted less intrusive discovery. Naming an executive doesn’t prove knowledge. Claims based on the executive’s own conduct are different.

Can we just refuse to produce the CEO?

No. Ignoring a valid deposition notice invites a motion to compel and sanctions. The correct response is a timely meet and confer, followed by a motion for a protective order if the parties can’t agree. Under section 2025.420(h), the court imposes a monetary sanction on whoever loses a protective order motion unless it finds that side “acted with substantial justification” or that a sanction would be unjust.

What if the CEO received the employee’s complaint email?

That can be enough to make the executive a real witness, depending on what happened next. If the email was forwarded to HR and the executive did nothing else, the company can say so in a declaration and offer interrogatories. Liberty Mutual rejected the idea that copying an executive on a few letters creates constructive notice justifying a deposition.

Does the same rule apply in federal court?

Federal courts in California apply a similar analysis under the federal discovery rules, and Liberty Mutual itself relied on federal decisions. The details differ by court, so the motion should cite the standard the assigned judge has used. The core showing is the same: the executive lacks unique first-hand knowledge, and less burdensome sources exist.

If an employee’s lawyer has noticed your CEO’s deposition

If your company has received a deposition notice for its owner or chief executive in an employment case, the executive’s actual role in the decision usually determines whether a protective order is realistic. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving discovery disputes over executive depositions. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

The statutes are Code of Civil Procedure section 2025.420 and Code of Civil Procedure section 2025.230. The decisions are Liberty Mutual Insurance Co. v. Superior Court (1992) 10 Cal.App.4th 1282 and Nagle v. Superior Court (1994) 28 Cal.App.4th 1465.

This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.