Arguing Class Actions is a monthly column by Adam J. Levitt for the National Law Journal.
Reprinted with permission from the June 1, 2026, edition of the National Law Journal. © 2026 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
In civil litigation, few discovery concepts sound more reasonable at first blush than protecting high-ranking corporate executives from unnecessary burden or harassment. But the so-called “apex witness” designation—now routinely invoked to block discovery directed at CEOs and other senior executives—has drifted far from any legitimate case-management purpose. What began as a pragmatic sequencing tool has hardened into a status-based shield that distorts ordinary discovery principles, shifts burdens the rules don’t authorize, and, all too often, moves litigation further from the truth rather than closer to it.
The apex witness problem isn’t confined to deposition timing. It has expanded into a broader discovery strategy used to limit access to documents, custodians, written discovery, and live testimony, simply by labeling a witness “apex.” Once that label is applied, discovery disputes frequently pivot away from relevance and proportionality and toward an abstract inquiry into corporate hierarchy. Plaintiffs are forced to justify why discovery should proceed at all, while defendants invoke executive rank as a substitute for evidence.
The origins of this concept are often traced to Salter v. Upjohn, 593 F.2d 649, 651–52 (5th Cir. 1979),
where the U.S. Court of Appeals for the Fifth Circuit affirmed a district court’s decision to sequence depositions so that lower-level employees were deposed before the company’s president. The court didn’t create executive immunity or a heightened standard; it approved a discretionary order managing discovery in a specific case. Over time, however, that modest holding was transformed into something far more rigid: a judge-made doctrine suggesting that senior executives are presumptively off-limits unless plaintiffs prove “unique, non-duplicative” knowledge and exhaustion of other discovery.
Lower courts have often repeated that formulation, drawing from decisions such as Apple v. Samsung Electronics, 82 F.R.D. 259, 265 (N.D. Cal. 2012), which articulated a two-part test requiring unique personal knowledge and exhaustion of less intrusive discovery. Whatever its intent, that framework has become a powerful tactical tool. It flips the discovery rules on their head by requiring the party seeking discovery to prove entitlement, rather than requiring the resisting party to show good cause for protection.
That inversion has no textual basis in Rule 26. The Federal Rules of Civil Procedure provide for broad discovery limited by relevance, proportionality, and the availability of protective orders upon a showing of good cause. They don’t create special exemptions for corporate rank. Yet, apex arguments routinely succeed in imposing exactly that—an executive carve-out that elevates title over substance and status over facts.
Some courts have begun recognizing the danger. In Stratford v. Umpqua Bank, the Washington Supreme Court expressly declined to adopt the apex doctrine, warning that it improperly “places a thumb on the scale” against discovery and shifts the burden to the party seeking it, contrary to the discovery rules’ text and purpose. 534 P.3d 1195, 1201–02 (Wash. 2023). Likewise, in General Motors, LLC v. Buchanan, 313 Ga. 811, 874 S.E.2d 52, 55–57 (Ga. 2022), the Georgia Supreme Court rejected the notion that executive rank creates any presumption against discovery, emphasizing that courts must evaluate discovery disputes based on evidence, not titles.
Despite these decisions, apex rhetoric remains a favored defense tactic. Motions for protective orders supported by executive affidavits disclaiming personal knowledge have become routine. Courts are asked to accept those affidavits at face value—even though they’re often conclusory and crafted before discovery has meaningfully begun. As several courts have observed, allowing such affidavits to block discovery risks turning Rule 26 into a mechanism for avoiding inquiry rather than facilitating it. Plaintiffs are forced to disprove ignorance without access to the very evidence that would reveal what the executive knew, when they knew it, and how they acted.
This distortion is especially pronounced in class actions and other systemic cases, where senior leadership sets policy, approves strategy, and determines how known risks will be addressed. Defendants often argue that layered management structures or delegated execution insulate executives from relevant knowledge. But courts have repeatedly rejected the notion that delegation alone renders senior executives factually irrelevant. As multiple courts have put it, “approval, ratification, or oversight of the conduct at issue is itself relevant knowledge,” and decision-makers cannot avoid discovery simply because others carried out their directives.
The conceptual failure of the apex doctrine is most apparent in founder-led or tightly controlled companies. In those enterprises, authority isn’t diffuse; it’s centralized by design. Founder-CEOs often retain super-voting shares, exercise final approval authority, and personally involve themselves in product, platform, or compliance decisions. Courts confronting such structures have emphasized that where an executive is a “central decision-maker,” “final authority,” or “key architect” of the challenged conduct, apex protections “carry little force” or “do not apply.”
Meta provides a clear illustration. Mark Zuckerberg’s tight control over the company—through super-voting stock and centralized decision-making—has been repeatedly cited to explain Meta’s governance and strategic coherence. Courts evaluating discovery disputes in litigation challenging Meta’s competitive practices and platform policies have recognized that such centralized control undermines any claim that Zuckerberg is removed from the facts. As courts have reasoned in similar contexts, when “ultimate decision-making authority rests with a single individual,” barring discovery of that individual would exclude “the most knowledgeable witness regarding the company’s conduct.”
Courts confronting founder-CEO disputes have increasingly said the quiet part out loud: The apex doctrine can’t be squared with corporate structures that concentrate power at the top. In antitrust litigation against Facebook, courts permitted discovery directed at Zuckerberg after concluding that his personal involvement in acquisition strategy and competitive positioning made him a critical fact witness. In cases involving Tesla, courts have rejected efforts to shield Elon Musk where the claims turned on Musk’s public statements, direct management style, and personal participation in corporate decisions—observing that where an executive “chooses to involve himself deeply in corporate affairs,” he can’t later claim immunity from discovery about those affairs.
Even outside the founder-CEO context, courts sometimes cut through apex posturing when the facts demand it. In litigation arising from Snapchat’s “speed filter,” a Georgia trial court ordered Snap CEO Evan Spiegel to sit for a deposition after finding that Spiegel personally proposed, approved, and later removed the feature. Rather than barring discovery, the court imposed reasonable limits on scope and duration, reflecting what courts increasingly recognize: Proportionality is a tool for tailoring discovery, not for shielding decision-makers altogether. Maynard v. McGee, No. 16SV-89 (State Ct. Spalding Cnty. Ga. July 18, 2024).
The deeper flaw in apex witness thinking is the assumption that corporate hierarchy correlates with factual distance. Courts have repeatedly rejected that assumption, noting that senior executives often function as final decision nodes—particularly in moments of crisis, risk assessment, or strategic change. Those decisions are factual, not abstract. Treating such witnesses as presumptively irrelevant confuses delegation with detachment and management with ignorance.
None of this requires abandoning sensible discovery management. Courts retain ample authority to sequence discovery, impose reasonable limits, and prevent harassment. Rule 26(c) already provides the necessary tools. What courts should not do—and what many courts now expressly warn against—is elevating corporate status into a discovery shield that overrides relevance and proportionality before the record is developed.
At bottom, the apex witness problem isn’t about inconvenience or efficiency; it’s about power and accountability. Discovery exists to illuminate how decisions are made, who makes them, and why. When courts allow defendants to convert seniority into insulation—treating rank as a proxy for irrelevance and burden as a substitute for proof—they invert the purpose of the civil rules. Executives who set strategy, approve policies, or steer corporate conduct shouldn’t be presumptively shielded from the process designed to test those actions. Applying the rules as written doesn’t punish leadership or success; rather, it ensures that, in our civil justice system, no one is too important to be asked what they knew, when they knew it, and what they chose to do.
Adam J. Levitt is a founding partner of DiCello Levitt, where he heads the firm’s class action and public client practice groups. He can be reached at alevitt@dicellolevitt.com
Thank you to DiCello Levitt senior counsel Jarett Sena for contributing to this column.
