Main Menu
Court Must Decide If Daniels Can Be Deposed In IBM-Indiana Litigation
Posted in Litigation

The State of Indiana filed a protective order in March 2011 asking the Marion Superior Court to block IBM's attempts to take the deposition of Governor Mitch Daniels in the IBM-Indiana litigation regarding IBM's $1.37 billion contract to modernize the state's welfare system.  IBM's lead attorney argues that Daniels was a key player in the project and that he has a duty to share information. 

The case law is clear that absent extraordinary circumstances, it is very unusual for a court to prohibit the taking of a deposition.  When a witness has personal knowledge of facts relevant to the lawsuit, even a corporate president, CEO, or in this case, the Governor, is subject to deposition.  In reviewing the motion, the trial court will need to apply Indiana Trial Rule 26 which provides limitations on the scope of discovery.  There is a substantial body of case law, mostly from federal courts, specifically rejecting attempts to depose high-ranking corporate employees without good cause.  The case law sets forth the principle described as the "apex doctrine" which protects "individuals at the apex of a corporate hierarchy from deposition when such individuals lack personal knowledge regarding the litigation, or when the requested information could be garnered from equally or more knowledgeable subordinates." (See Serrano v. Cintas Corp.) Although Indiana courts have not specifically addressed the contours of the apex doctrine, Indiana courts routinely acknowledge that Indiana's Trial Rule 26 mirrors Federal Rule 26 and therefore courts look to federal interpretations of the rule.

A Federal Court in California recently addressed the apex doctrine and found that Steve Jobs, Apple's CEO, was required to sit for a deposition on certain topics in litigation involving issues with Apple's iPod and its iTunes software limiting the digital music files that can be played on the device. The Court considered whether Jobs had unique, first-hand, non-repetitive knowledge of facts at issue in the case and whether the party seeking the deposition has exhausted other less intrusive discovery methods.  The Court granted the protective order on two of the three topics sought for discovery finding that those topics were not relevant to the litigation.  It did allow the deposition to proceed on Apple's decisions related to RealNetworks's Harmony technology, which created interoperability between digital music files purchased on RealNetwork's online store and iPods.

If you have questions, please contact the Litigation Practice Group at Bingham Greenebaum Doll.



Recent Posts




Back to Page