By Harold Hill
Stratford v. Umpqua Bank, No. 100717-5 (Sep. 14, 2023). At issue: whether Washington recognizes the apex doctrine as a basis for a protective order under civil rule 26(c). Washington’s Supreme Court ruled that it does not and should not.
Washington’s Civil Rules provide a broad right of discovery subject to the restrictions set forth in CR 26.1 A party’s “right to discovery is an integral part of the right to access the courts embedded in our constitution.”2 “The purpose of discovery is to allow production of all relevant facts and thereby narrow the issues and to promote efficient and early resolution of claims.”3
Discovery may be limited when unreasonably cumulative or duplicative, or is obtainable from more convenient, less burdensome, or less expensive sources; when the party seeking discovery has had ample opportunity to obtain the information sought; or is otherwise unduly burdensome or expensive.4
Courts may limit discovery sua sponte or when moved for a protective order under CR 26(c). For good cause shown, a trial court may enter an order under CR 26(c) to protect a person or party from annoyance, embarrassment, oppression, undue burden, or expense.5 A party establishes good cause by showing a protective order would avoid the threat of a harm listed in CR 26(c) without impeding the discovery process.6 The burden of persuasion rests with the party or person seeking the protective order.7
The apex doctrine “shields certain high-ranking officials from being deposed”8 to prevent unwarranted harassment and abuse of the discovery process.9 Although its application varies from jurisdiction to jurisdiction, here, Umpqua argued that in order for a party to depose a company’s high-level officer, the party must first establish the witness “has unique, non-repetitive, firsthand knowledge of the facts at issue in the case, and that other less intrusive means of discovery such as interrogatories and depositions of other employees, have been exhausted without success.”10
In other words, Umpqua’s application of the apex doctrine would shift the burden to the party seeking discovery rather than the party resisting it — upending general discovery principles and Washington’s Civil Rules.11 Nevertheless, Umpqua argued Washington adopted the doctrine in Shields v. Morgan Financial, Inc.,12 and Clarke v. Office of Attorney General.13 Washington’s Supremes disagree.
First, Shields sued her mortgage lender and broker for violations of the Consumer Protection Act.14 The lender produced a corporate designee to testify about Shields’s loan, the lender’s interaction with brokers, and its disclosure procedures.15 Shields then sought to depose the lender’s chief financial officer and chief compliance officer.16 The trial court granted the lender’s motion for a protective order as neither officer had personal knowledge of Shields’s file.17
On appeal, Shields argued the trial court erred in granting the protective order.18 This argument was rejected because the officers had no knowledge of any specific facts, the lender produced a senior executive to testify, and CR 26(c) permits discovery to be limited for good cause when it is “unreasonably cumulative or duplicative” or “unduly burdensome or expensive, taking into account the needs of the case.”19
According to the Court’s analysis, the Shields opinion did not adopt or apply the apex doctrine; rather, it affirmed the protective order based on already-existing CR 26 factors. True, the officers had no knowledge of the underlying facts, but the holding emphasized the trial court’s discretion in limiting discovery based on the needs of the case. The court did not hold Shields must establish the witnesses had unique, nonrepetitive, firsthand knowledge of the facts and less intrusive means of discovery had been exhausted without success.
Secondly, Clarke sued the attorney general’s office for wrongful termination.20 Clarke moved to compel the deposition of the former attorney general and then current governor of the state.21 The trial court denied the motion to compel.22
Clarke argued the motion should have been granted because the governor had been the attorney general during her employment and had “relevant firsthand knowledge” of defending cases, hiring and terminating employees, and managing the office.23 The appellate court disagreed because the governor had no personal knowledge of Clarke or her termination and had not managed her division.24 The panel “agree[d] with the federal cases that protect high-ranking government officials from discovery when other available witnesses can provide the same information” and held “the trial court did not err when it substantively denied Clarke’s motion to compel the governor’s deposition.”25
The Supremes do not interpret Clarke as adopting the apex doctrine. That ruling agreed with federal court decisions which protect high-ranking government officials who “‘have greater duties and time constraints than other witnesses’” and “‘should not, absent extraordinary circumstances, be called to testify regarding their reasons for taking official actions.’”26 Put differently, the Clarke court affirmed the trial court’s denial of the motion to compel based on the deferential standard of review, noting that others would be better sources for the information sought.
The Court also deemed it worthwhile to note Clarke involved a public official rather than a corporate CEO. Umpqua argued the Clarke court’s rationale ought not to be limited to public employees. The Supremes, however, answered this position is unfounded. To state there is “no principled or explained reason”27 not to extend the doctrine ignores obvious differences between public officials and corporate executives.
Significantly, forbidding a party from deposing high-level officials absent a showing they have unique, nonrepetitive, firsthand knowledge of the facts and that other methods of discovery have been exhausted without success establishes a much higher burden on proponents of discovery than either Shields or Clarke imposed.
A review of CR 26’s text reaffirms Washington’s discovery rules already protect potential deponents from unduly burdensome discovery. Accordingly, trial courts have wide discretion to limit discovery based on the needs of the case and will do so when a party establishes undue burden or expense. Umpqua was required to show good cause existed for the trial court to limit discovery based on CR 26 — but the court ruled it had failed to do so.
Given other jurisdictions apply the doctrine differently and CR 26 already protects apex officers, the Court refused to adopt the doctrine and affirmed the trial court.
1 John Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 782, 819 P.2d 370 (1991).
2 Cedell v. Farmers Ins. Co. of Wash., 176 Wn.2d 686, 695, 295 P.3d 239 (2013).
3 Cedell, 176 Wn.2d at 698; see also Doe, 117 Wn.2d at 782.
4 CR 26(b)(1).
5 Barfield v. City of Seattle, 100 Wn.2d 878, 885, 676 P.2d 438 (1984); CR 26(c).
6 Rhinehart v. Seattle Times Co., 98 Wn.2d 226, 232, 654 P.2d 673 (1982).
7 Cedell, 176 Wn.2d at 696.
8 Zimmerman v. Al Jazeera Am., LLC, 329 F.R.D. 1, 6 (D.D.C. 2018).
9 Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012); Zimmerman, 329 F.R.D. at 6; BlueMountain Credit Alts. Master Fund L.P. v. Regal Entm’t Grp., 2020 COA 67, ¶ 28, 465 P.3d 122, 130.
10 Robinett v. Opus Bank, No. C12-1755MJP, 2013 WL 5850873, at *5 (W.D. Wash. Oct. 30, 2013) (citing Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979)).
11 See BlueMountain, 465 P.3d at 131; Cedell, 176 Wn.2d at 696; CR 26(c).
12 130 Wn. App. 750, 125 P.3d 164 (2005).
13 133 Wn. App. 767, 781, 138 P.3d 144 (2006).
14 Shields, 130 Wn. App. at 752, 756.
15 Id. at 754.
16 Id.
17 Id.
18 Id. at 758.
19 Id. at 759-60.
20 Clarke, 133 Wn. App. at 775.
21 Id. at 777.
22 Id.
23 Id. at 781.
24 Id. at 782.
25 Id.
26 Id. at 781 (internal quotation marks omitted) (quoting In re United States (Reno), 197 F.3d 310, 313 (8th Cir. 1999)).
27 Pet’r’s Opening Br. at 18.
