High-Ranking Government Executives and Invoking the Apex Doctrine
By: Michael Beato and Amber Hulse
A recent and ongoing case, In re Murthy, regarding social media platforms’ censorship of free speech, included discovery from the White House Office of the Press Secretary. This discovery brings former Biden Press Secretary Jen Psaki into the matter and the question of whether she is required to participate in a deposition.
Ms. Psaki, no longer the press secretary, may be able to invoke the apex doctrine, meant to protect government officials from being ensnared in discovery like the kind at hand here.
The apex doctrine prevents high-ranking executive officials from being subject to depositions unless extraordinary circumstances exist. The test to determine whether deposition testimony can be compelled from someone at the apex of government considers the official’s high-ranking status, the reasoning for the deposition, and the potential burden the deposition would impose. A final key element considers whether the information sought from the deposition could be obtained through other means.
Without extraordinary circumstances, courts compelling apex testimony is a clear abuse of discretion. The current question for the courts is whether this doctrine applies equally to present and former officials.
The fifth circuit ruled Ms. Psaki’s deposing, although she is a former official, fits within the required bounds of this serious doctrine, warranting substantial consideration. In Ms. Psaki’s case, less intrusive means of obtaining relevant information are available and both parties have agreed to these alternative means.
The information sought by the deposition may be obtained faster through a deposition, but the apex doctrine does not consider inconvenience. Indeed, the doctrine assumes its application often will be more cumbersome for the party seeking discovery. Because only "extraordinary circumstances" can justify deposing such officials, slower — but less intrusive — means may be required.
If you or someone in your organization is a high-ranking government official potentially facing depositions, this doctrine may apply.