The NCAA And The Apex Doctrine
Plaintiffs suing the NCAA are seeking the depositions of three “high ranking executives.”
The Indiana Supreme Court remanded the issue with guidance.
three lawsuits have been brought on behalf of former college football players Cullen Finnerty, Andrew Solonoski Jr., and Neal Anderson (the “Athletes”). The Athletes competed at different NCAA member institutions and at different times: Finnerty at the University of Toledo and Grand Valley State University between 2001 and 2006; Solonoski at North Carolina State University between 1966 and 1970; and Anderson at the University of Illinois between 1960 and 1964. During their participating years, each athlete sustained several concussive and subconcussive injuries. Following their collegiate careers, the Athletes suffered from various physical and mental conditions, ranging from headaches, motor impairment, and loss of impulse control to memory loss, paranoia, anxiety, rage, and depression. Ultimately, all three men were diagnosed with chronic traumatic encephalopathy (CTE)—a neuro-degenerative disease linked to repetitive brain trauma. Finnerty, Anderson, and Solonoski passed away in 2013, 2018, and 2021, respectively.
The question came before the Indiana Supreme Court on the NCAA’s interlocutory appeal
though we decline to adopt the apex doctrine, we establish a framework that harmonizes its underlying principles with our applicable trial rules to assist courts in determining whether good cause exists to limit or prohibit the deposition of a top-level official in a large organization. We ultimately remand for the trial court to evaluate the NCAA’s second motion for a protective order with the benefit of this guidance.
The apex doctrine
The apex doctrine generally prevents high-ranking public officials or corporate executives from being deposed unless the requesting party shows that the official or executive has unique, superior information that cannot be found through other discovery mechanisms.
Modified application
As a threshold matter, the party seeking a protective order must show that the deponent qualifies as an apex official. To do so, the party needs to establish by affidavit and specific factual support that the executive occupies a position at the corporation’s “apex.”
…If the party seeking protection makes this apex showing, the trial court must then determine whether there is “good cause” to protect the official from annoyance, embarrassment, oppression, undue burden, or expense.
If the apex showing is rebutted or negated
When confronted with a responsive motion that rebuts—rather than negates—the apex official’s good cause showing, the court must use its discretionary authority to balance the parties’ needs and impose a protective order that (1) restricts the topical scope of the deposition or (2) requires the exhaustion of less intrusive discovery methods. See T.R. 26(B)(1), (C). Less intrusive methods may include deposing lower-level employees, deposing a corporate designee, or submitting to the corporation interrogatories and requests for production of documents. See T.R. 30, 33, 34. If the party seeking the deposition exhausts alternative methods to no avail, the court should modify the protective order upon the party establishing a specific, outstanding need for the deposition.
Turning to this case, the trial court did not have the benefit of this framework when it denied the NCAA’s second motion for a protective order. Further, in that second order—the appealed order before us—the court summarily denied the NCAA’s motion, leaving us unable to determine whether its reasoning comported with our guidance. We therefore remand to the trial court to evaluate the NCAA’s motion in light of our guidance and encourage it to enter findings and conclusions supporting its decision.
(Mike Frisch)