You Don’t Get a Bite at the Big Dog: Texas Court Rules that Injured Worker CannotWhat if your employee plaintiff sues you and then demands to take the deposition of your company CEO or some other high-level corporate executive who has no personal knowledge about the facts of the case? No one would be excited about that prospect. Fortunately, a Texas appellate court recently ruled that high-level executives can be put off-limits for deposition unless they have particular, personal knowledge of the events in question. The decision, In re Newport Classic Homes, is an important one for companies (even if they are not in Texas) to remember if they are ever faced with a request for an “apex deposition.”

What is an Apex Deposition?

We all know that depositions are a discovery tool used to get a witness’s testimony under oath. Sometimes a plaintiff seeks a deposition of a company’s CEO or high-ranking executives who have no personal knowledge of the events in question – commonly referred to as “apex depositions.” A company’s CEO may know a lot about the company, but have zero personal knowledge of the events in the lawsuit. Plaintiffs nonetheless sometimes pursue the deposition of a high-ranking individual for a variety of reasons – some legitimate (garnering testimony that could be useful) and others maybe not as legitimate (as harassment or a veiled pressure tactic to compel a settlement). The apex doctrine is intended to direct discovery to those at lower levels with particular, personal knowledge of a dispute, as well as protect high-level executives from harassing and time-consuming depositions.

Background

Newport Classic Homes was a general contractor on a project, and Marcus Hiles was its CEO. The injured plaintiff worked for a subcontractor on the project and suffered a workplace injury. He sued Newport, alleging that it had contractual and actual control of the worksite. The plaintiff sought to depose Hiles, which triggered Newport’s motion to prevent the deposition and the plaintiff’s motion to compel. Hiles stated that he did not have any unique or superior knowledge of any facts or evidence surrounding the construction project or the incident. In fact, Hiles said the only information he would have was what others at Newport told him. The trial court, however, granted the request to depose Hiles, leading Newport to seek an immediate review of that order.

Court of Appeals Says No

The Texas State Court of Appeals reversed the trial court and found that Hiles did not have the particular personal knowledge necessary to warrant a deposition. The court stated that the plaintiff’s justification was “nothing more than the simple, obvious recognition that the highest-ranking corporate officer of any corporation has the ultimate responsibility for all corporate decisions.” Examining a previous Texas Supreme Court ruling about the issue of when to permit the deposition of a corporate president or high-level corporate official, the court concluded that the “unique or superior knowledge” threshold requires a showing “beyond mere relevance … that a high-level executive is the only person with personal knowledge of the information sought” or possesses such knowledge in greater quality or quantity than anyone else. To be sure, “some knowledge” is not enough as it would make the apex discovery indistinguishable from the scope of general discovery. Nor is knowledge of company policies sufficient. The court examined the deposition of another Newport employee that described what Hiles would know and concluded that the CEO simply did not have “unique or superior personal knowledge” to justify his deposition and that the plaintiff could obtain all necessary discovery through less intrusive means.

Takeaways

The opinion serves as a strong arrow in the quiver for a defendant to avoid having their high-level executives deposed. Each jurisdiction (and each individual judge) varies on the interpretation of the apex deposition principle, but most jurisdictions have developed law requiring some type of unique and special knowledge similar to the Texas court. Apex deposition requests could be encountered in litigation involving a discrimination claim or a workplace injury claim, and a defending company should carefully evaluate whether the requested deponent has the unique and superior personal knowledge to really warrant being deposed. Unless a plaintiff can show that type of particular knowledge, the deposition should be seen as nothing more than improper harassment.

All Tennessee employers and their agents must now comply with the “Employee Online Privacy Act of 2014,” a new law that prohibits employers from asking their employees for their usernames and passwords to social media sites, among other things. The law went into effect on January 1, 2015. Although it prohibits employers from taking certain actions, the Act also lists permissible actions, which may help employers navigate the numerous scenarios involving employees’ personal internet activity.

DON’TS: Tennessee employers can no longer:

  • Request or require an employee or applicant to disclose a password to their “personal Internet account,” such as Facebook, Twitter, or a personal e-mail account.
  • Compel an employee/applicant to add the employer to the contact list associated with the Internet account. For example, you likely cannot require an employee or applicant to “friend” you on Facebook.
  • Force an employee/applicant to access a personal Internet account in the employer’s presence. In other words, you cannot require an employee to access his or her “personal Internet account” while you watch.

If an employer improperly asks an employee to do one of these things, and the employee refuses, the employer is prohibited from taking an adverse employment action or otherwise penalizing the employee.

DOS: So what can an employer do? Under the Act, an employer can:

  • Request or require employees to provide a username and password to access an “electronic communications device” supplied by the employer or paid for (wholly or in part) by the employer.
  • Request or require employees to provide a username and password to access an account or service the employee obtained because of the employment relationship or that the employee uses for the employer’s business purposes. A possible example could be if an employer pays for an Internet database, such a LexisNexis, for its employees and the employer requests the employee’s username and password for that account.
  • Discipline or discharge an employee for transferring the employer’s proprietary, confidential, or financial information to his or her personal Internet account without the employer’s authorization.
  • Conduct an investigation or require an employee to cooperate in an investigation when the employer has “specific information” about an unauthorized transfer of the employer’s proprietary or confidential information.
  • Restrict or block an employee’s access to certain web sites while using an electronic communications device supplied by or paid for (wholly or in part) by the employer or while using an employer’s network or resources.
  • Monitor, review, access, or block electronic data stored on an employee’s communications device supplied by or paid for (wholly or in part) by the employer.
  • View, access, or use information about an employee or applicant that is available in the public domain.

The Act does not impose a penalty on employers who violate it. It does, however, create a standard of conduct for employers regarding what is illegal, and therefore could give rise to a whistleblower claim under the Tennessee Public Protection Act if an employee is terminated following an impermissible inquiry.

Tennessee’s implementation of the Employee Online Privacy Act of 2014 adds the state to a growing list of states that have enacted similar legislation prohibiting an employer from requesting an employee’s username and passwords to social media sites. In addition to Tennessee, Louisiana, New Hampshire, Oklahoma, Rhode Island, and Wisconsin enacted similar legislation in 2014.

In August, a judge awarded former Jackson State University (JSU) head coach, Denise Taylor, $200,000 in damages for “emotional pain and suffering” she endured during her employment. Taylor was the head women’s basketball coach at JSU for 10 seasons before she was fired in 2011. She filed the lawsuit against the university on January 24, 2012 claiming wrongful termination, sexual discrimination, invasion of privacy, and breach of contract.

Coach Taylor’s initial complaint alleged that after voicing her concerns about the lack of budgetary support for women’s athletics at the school, she was harassed by male coaches and the interim athletic director. She claimed that her program was subjected to an audit with the purpose of finding a way to fire her. She alleged that she was terminated after threatening to file a Title IX claim against Jackson State.

U.S. District Judge Henry T. Wingate’s award was in addition to a jury’s award in December 2013. The jury found in favor of Coach Taylor on her breach of contract claim (awarding $182,000), but granted a defense verdict on her claims for sexual harassment and retaliation.