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Mandamus - Depositions of Executive Officers - Apex Rule

Ex parte Willimon, [Ms. 1180439, Jan. 24, 2020] __ So. 3d __ (Ala. 2020). A plurality of the Court (Parker, C.J.; Shaw, Mendheim, and Stewart, JJ., concur; Mitchell, J., concurs specially; Bolin and Bryan, JJ., concur in the result; Wise and Sellers, JJ., dissent) denies a petition for writ of mandamus sought by the former and current Bishops of the North Alabama Annual Conference, United Methodist Church, Inc. directing the Talladega Circuit Court to grant protective orders or alternatively quash their depositions in an action against a former youth pastor alleging sexual abuse. The petitioners invoked the so-called “Apex Rule” articulated by a federal district court in Florida as follows:

“Courts routinely recognize that it may be appropriate to limit or preclude depositions of high-ranking officials, often referred to as ‘apex’ depositions, because ‘high[-]level executives are vulnerable to numerous, repetitive, harassing, and abusive depositions, and therefore need some measure of protection from the court.’ Thus, parties seeking apex depositions bear the burden of demonstrating an executive has ‘unique knowledge of the issues in the case’ or the information sought has been pursued unsatisfactorily through less intrusive means.”

Ms. *6, quoting Goines v. Lee Mem’l Health Sys., No. 2:17-CV-656, August 13, 2018 (M.D. Fla. 2018) (not reported in F. Supp.). While the opinion leaves open the prospect of the Court adopting the Apex Rule, the Court declined to adopt it here because “the circuit court could have reasonably concluded that the bishops have superior personal knowledge of information” that the plaintiff seeks. Ms. *9.

The plurality opinion also concludes that Bishop Wallace-Padgett, who contended that the deposition sought of her was unreasonably cumulative or duplicative, failed to support her contention in the trial court with excerpts of prior deposition testimony. Ms. *13-14.

The plurality opinion also rejects Wallace-Padgett’s argument premised on the attorney-client privilege noting that “[t]he privilege protects communications between an attorney and client, not necessarily all information or documents transmitted by or accompanying those communications.” Ms. *22 (emphasis in the original).

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