FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
SEPTEMBER 14, 2023
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
SEPTEMBER 14, 2023
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
HEATHER STRATFORD and WILLIAM B. )
GEIBEL, JR., individually and their marital )
community, )
)
Respondents, ) No. 100717-5
)
v. ) En Banc
)
UMPQUA BANK, an Oregon corporation; )
and BRYAN JARRETT, an individual, )
) Filed : September 14, 2023
Petitioners. )
)
OWENS, J.—The parties to a lawsuit have a broad right to discovery, subject
to narrow limitations in the Civil Rules. A party may seek a protective order to limit
discovery under CR 26(c), which requires the party to show that good cause for the
protective order exists. This case requires us to decide whether Washington
recognizes the “apex doctrine,” which shields certain high-ranking officials from
deposition unless the proponent can first show that the witness has personal
Stratford v. Umpqua Bank
No. 100717-5
knowledge of the facts and that less intrusive means of discovery have been
unsuccessful.
Respondents Heather Stratford and William Geibel Jr. (collectively
Stratford) sued petitioner Umpqua Bank and its loan officer for negligent hiring
and fraud, among other claims. After written discovery, Stratford sought to
depose three high-level Umpqua executives. Umpqua moved for a protective
order, arguing the executives had no personal knowledge and the apex doctrine
shielded them from deposition. The trial court denied the motion. We granted
Umpqua’s petition for review to decide whether Washington does or should
follow the apex doctrine.
We answer these questions in the negative. The apex doctrine has not
been adopted by any court in this state. We decline to adopt the doctrine
because it improperly shifts the burden of proof in violation of our discovery
rules and it undermines the right of access to courts. Moreover, it is not
universally accepted or applied consistently across jurisdictions. Accordingly,
we affirm the trial court’s denial of Umpqua’s protective order and remand for
further proceedings.
FACTS
Bryan Jarrett worked as an insurance agent for several years. Clerk’s Papers
(CP) at 114. During his employment, Jarrett submitted fictitious insurance
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applications and attempted to conceal his misconduct. Id. at 114-21. In 2014, the
Office of Insurance Commissioner (OIC) investigated Jarrett and revoked his license.
Id. at 119-21.
In 2015, Umpqua hired Jarrett as a home lending retail loan officer. Id. at 129-
30, 158-68. As part of the hiring process, Jarrett cleared a criminal background check.
Id. at 159-60. Umpqua did not learn about Jarrett’s OIC disciplinary record during its
preemployment screening and “was not provided with any information from
Mr. Jarrett or from any third party that would prohibit him from acting as a loan
officer.” Id. at 181.
Unfortunately, Jarrett’s conduct as a loan officer resulted in numerous customer
complaints. See, e.g., id. at 132-34, 138-42, 143-44. In February 2016, Umpqua met
with Jarrett to take corrective action but did not terminate his employment at that
time. Id. at 149-51, 143.
In late 2016, Stratford met Jarrett at the Umpqua Spokane offices to discuss a
construction loan. Id. at 4. Jarrett told Stratford that “‘his builder,’ Tony Begovich,
would be a better option” than her proposed builder. Id. at 55. Jarrett said Begovich
worked on other projects with Umpqua and had performed on time, within budget. Id.
In May 2017, Stratford and Begovich entered into a construction agreement
with a quoted budget of $402,268 to be completed in approximately seven months.
Id. at 78-87. To fund the project, Stratford obtained a construction loan from
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No. 100717-5
Umpqua, executed in July 2017. Id. at 187-99. Shortly thereafter, Begovich began
construction. Id. at 202-03. In November 2017, while construction was ongoing,
Umpqua fired Jarrett. Id. at 143.
Begovich did not finish building Stratford’s home, which was damaged by
exposure to the elements. Id. at 202-03, 60-61. In March 2020, Stratford sued
Begovich, his company, and his subcontractors for breach of contract, fraud, and
negligence. Id. at 201-05. In November 2020, a trial court awarded Stratford a total
of $554,631.17 in damages. Id. at 230-35.
In May 2021, Stratford sued Jarrett and Umpqua for multiple causes of action,
including negligent misrepresentation, fraud, and negligent hiring. 1 CP at 1-12, 12-
20. Umpqua answered and asserted affirmative defenses. Id. at 21-30. The parties
engaged in extensive and contentious written discovery for months until filing cross
motions for summary judgment. See, e.g., CP at 811-15, 774, 819-60, 863-78, 902-
13; CP at 31-168, 158-237.
In January 2022, Stratford issued subpoenas to three Umpqua executives:
(1) Cort O’Haver, the president and chief executive officer (CEO) of Umpqua
Holdings Corporation, (2) Sheri Burns, the chief people officer at Umpqua, and
(3) Kevin Skinner, the head of Umpqua’s home lending division. Id. at 499. The
1
Stratford later released Jarrett from the lawsuit pursuant to a settlement agreement. See
CP at 970-73.
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No. 100717-5
parties discussed the purpose of the depositions and were ultimately unable to agree
about whether they were necessary. Id. at 499-500.
Umpqua moved for a protective order. Id. at 601-14, 499-501. It argued
deposing its senior executives (“apex” officers) was unnecessary and appeared to be
merely a harassment tool. Id. at 502. It asserted the executives “were not involved in
[Stratford’s] loan, they did not supervise Jarrett, they did not hire Jarrett, nor did any
of them have any involvement with Jarrett’s termination from the Bank.” Id. at 503.
Of the three proposed deponents, only Skinner was “vaguely aware of who Jarrett is”
due to this litigation. Id. Umpqua emphasized that “none of these three APEX
officers have any personal knowledge relevant to [the] claims,” yet Stratford sought
“to depose them before taking testimony from any other witness with actual
knowledge of the underlying facts alleged.” Id.
In support of its motion, Umpqua submitted a declaration from Skinner. Id. at
495-98. Skinner was not involved with Jarrett’s hiring or termination because he
became executive vice president for home lending in January 2020. Id. at 496.
Skinner stated that he and the other deponents needed to invest “incredible amounts of
time and resources in the continued bank operations” because the bank was
undergoing a merger. Id. at 497.
Before filing a response to the protective order, Stratford offered to “withdraw
the O’[H]aver notice and proceed only with the depositions of Skinner and Burns” if
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Umpqua agreed to withdraw its motion for a protective order. Id. at 647. Umpqua
apparently did not respond.
The next day, Stratford filed her response, arguing that Washington has not
adopted the apex doctrine and urging the court to deny the protective order because
Umpqua failed show good cause under CR 26(c). Id. at 614-27. She specifically
criticized Umpqua for failing to describe any harm or prejudice that would result from
the depositions. Id. at 621.
The trial court held a discovery hearing. Stratford argued she wanted to depose
O’Haver, via Zoom, because the CEO is responsible for complying with fiduciary
duties and disclosures in highly regulated, publicly traded companies. Verbatim Tr.
of Proc. (Feb. 11, 2022) (VTP) at 10. Counsel wanted to ask O’Haver about
bankwide calls related to hiring policies and other issues that are “relevant for the jury
to hear certainly.” Id. at 11.
Umpqua responded that it is “premature” to go directly to the CEO and pointed
out that Stratford’s offer to take O’Haver off the deposition list is “a clear admission”
that his deposition is unnecessary. Id. at 12. Umpqua then argued that neither Burns
nor Skinner had personal knowledge of Jarrett; Umpqua conceded that they may be
relevant later but maintained it wanted “to streamline and not burden these folks.” Id.
at 17.
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The trial court denied Umpqua’s protective order. CP at 653-54. In an oral
ruling, the court reasoned:
Washington law has some pretty . . . easy discovery rules, pretty
wide discovery. And considering the claims that the plaintiff’s making .
. . how [Stratford’s counsel] decides who he thinks is relevant to prove
his case is up to him. He doesn’t have to ask for a [corporate deposition
under CR 30(b)(6)] if he doesn’t want to. And if he believes that these
witnesses . . . have valid information . . . on . . . policies and procedures,
hiring, offering.
VTP at 17-18. The court continued,
[T]he burden is on the defendant or the moving party to show why this
basically would not be necessary or relevant, and . . . basically unduly
burdensome. He’s offering to do a Zoom deposition, and work around
their schedules, and it’s not unreasonably duplicative, and it could be
important to his case.
....
[A]t this point [Stratford’s counsel] met his burden to show that these
would be important and could lead to discoverable or admissible
evidence to prove his case.
Id. at 18-19.
Umpqua moved for an emergency stay of the depositions and sought direct
review. We granted the stay and review. The Washington State Association for
Justice Foundation filed an amicus curiae brief in support of Stratford.
ISSUE
Should Washington adopt the apex doctrine?
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ANALYSIS
We granted review to consider whether the apex doctrine is consistent with our
discovery rules. This is a question of law that we review de novo. Sunnyside Valley
Irrig. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).
I. WASHINGTON DOES NOT RECOGNIZE THE APEX DOCTRINE
a. Principles of Discovery in Washington
The “right to discovery is an integral part of the right to access the courts
embedded in our constitution.” Cedell v. Farmers Ins. Co. of Wash., 176 Wn.2d 686,
695, 295 P.3d 239 (2013); John Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 782-
83, 819 P.2d 370 (1991) (the right of access is implicated whenever a party seeks
discovery). “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.”
Cedell, 176 Wn.2d at 698; see also Doe, 117 Wn.2d at 782.
The Civil Rules provide a broad right of discovery subject to relatively narrow
restrictions set forth in CR 26. Doe, 117 Wn.2d at 782. A trial court properly limits
discovery if it determines that
(A) the discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less
burdensome, or less expensive;
(B) the party seeking discovery has had ample opportunity by discovery
in the action to obtain the information sought; or
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(C) the discovery sought is unduly burdensome or expensive, taking into
account the needs of the case, the amount in controversy, limitations on
the parties, resources, and the importance of the issues at stake in the
litigation.
CR 26(b)(1).
A court may limit discovery upon its own initiative or on a motion for a
protective order under CR 26(c). Under CR 26(c), for good cause shown, a trial court
may enter an order to protect a person or party from annoyance, embarrassment,
oppression, undue burden, or expense. Barfield v. City of Seattle, 100 Wn.2d 878,
885, 676 P.2d 438 (1984); CR 26(c). A party establishes good cause by showing that
a protective order would avoid the threat of a harm listed in CR 26(c) without
impeding the discovery process. Rhinehart v. Seattle Times Co., 98 Wn.2d 226, 232,
654 P.2d 673 (1982). The burden of persuasion rests with the party or person seeking
the protective order. Cedell, 176 Wn.2d at 696.
b. Background on the Apex Doctrine
The “apex doctrine,” in those jurisdictions in which it is recognized, varies
greatly. At its most basic level, it “shields certain high-ranking officials from being
deposed.” Zimmerman v. Al Jazeera Am., LLC, 329 F.R.D. 1, 6 (D.D.C. 2018). The
doctrine is meant to prevent unwarranted harassment and abuse of the discovery
process, recognizing that adversaries may use depositions of certain high-level
officers to their advantage. Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir.
9
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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.
Under the iteration of the apex doctrine proposed by Umpqua, a party seeking
to depose a high-level officer at the ‘apex’ of a corporate hierarchy must first show
that the witness “[1] has unique, non-repetitive, firsthand knowledge of the facts at
issue in the case, and [2] that other less intrusive means of discovery such as
interrogatories and depositions of other employees, have been exhausted without
success.” 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)).
This shifts the burden to the party seeking discovery rather than the party resisting it
as required by general discovery principles and our Civil Rules. See BlueMountain,
465 P.3d at 131; Cedell, 176 Wn.2d at 696; CR 26(c).
c. Washington Has Not Adopted the Apex Doctrine
No reported Washington opinion has explicitly adopted the apex doctrine, at
least not in name. Umpqua argues Shields v. Morgan Financial, Inc., 130 Wn. App.
750, 125 P.3d 164 (2005) and Clarke v. Office of Attorney General, 133 Wn. App.
767, 781, 138 P.3d 144 (2006), essentially adopt the apex doctrine. We disagree.
i. Shields Applied CR 26(b)(1) and (c), Not the Apex Doctrine
Shields sued her mortgage lender and broker for violations of the Consumer
Protection Act, ch. 19.86 RCW. Shields, 130 Wn. App. at 752, 756. The lender
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produced a corporate designee to testify about Shields’ loan, the lender’s interaction
with brokers, and its disclosure procedures. Id. at 754. Shields then sought to depose
the lender’s chief financial officer and chief compliance officer. Id. The trial court
granted the lender’s motion for a protective order, noting that neither officer had
personal knowledge of Shields’ file. Id.
On appeal, Shields argued the trial court erred in granting the protective order.
Id. at 758. The Court of Appeals disagreed and affirmed, reasoning that the officers
had no knowledge of any specific facts, the lender produced a senior executive to
testify, and CR 26(c) permits regulation of discovery for good cause when it is
“unreasonably cumulative or duplicative” or “unduly burdensome or expensive,
taking into account the needs of the case.” Id. at 759-60.
Shields did not adopt or apply the apex doctrine; it simply affirmed the
protective order based on CR 26 factors. Although Shields noted that the officers had
no knowledge of the underlying facts, its holding emphasized the trial court’s
discretion in limiting discovery based on the needs of the case. The court did not hold
that Shields would have had to show that the witnesses had unique, nonrepetitive,
firsthand knowledge of the facts and that less intrusive means of discovery had been
exhausted without success.
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ii. Clarke Did Not Apply the Apex Doctrine and It Involved Public
Rather Than Private Officials
Clarke sued the attorney general’s office for wrongful termination. Clarke, 133
Wn. App. at 775. After written discovery, Clarke moved to compel the deposition of
the former attorney general and then current governor of the state. Id. at 777. The
trial court denied Clarke’s motion to compel. Id.
On appeal, Clarke argued her discovery motion should have been granted
because the governor had been the attorney general during her employment and had
“relevant firsthand knowledge” about defending cases, hiring and terminating
employees, and managing the office. Id. at 781. The Court of Appeals disagreed,
noting the governor had no personal knowledge about Clarke or her termination and
had not even managed Clarke’s division. Id. at 782. The court “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.” Id.
Clarke did not adopt the apex doctrine as proposed by Umpqua. It agreed with
federal cases protecting 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.’”
Id. at 781 (internal quotation marks omitted) (quoting In re United States (Reno), 197
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F.3d 310, 313 (8th Cir. 1999)). The court did not hold that Clarke would have had to
show that the governor had unique, nonrepetitive, firsthand knowledge and that she
had exhausted other means. It simply 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.
Moreover, Clarke involved a public official not a corporate CEO. Umpqua
acknowledges this but asserts that the court’s rationale is not limited to public
employees. This position is unfounded. The cases cited explicitly discuss that high-
ranking governmental officials should not be deposed to explain their official actions.
This reasoning does not naturally extend to corporate officers. See Zimmerman, 329
F.R.D. at 6 (explaining that the apex doctrine “derives from the premise that
government officials should be allowed to perform their duties without undue
disruption and reflects a desire to protect the integrity of the administrative process”
(emphasis added)). Umpqua’s argument that there is “no principled or explained
reason” not to extend the doctrine ignores obvious differences between public
officials and corporate executives. Pet’r’s Opening Br. at 18.
In sum, the apex doctrine’s requirement that high-level officials cannot be
deposed absent a showing that they have unique, nonrepetitive, firsthand knowledge
of the facts and that other methods of discovery have been exhausted without success
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is a much higher burden on proponents of discovery than either Shields or Clarke
imposed. Washington has not adopted the apex doctrine as proposed by Umpqua.
II. WE DECLINE TO ADOPT THE APEX DOCTRINE
a. The Civil Rules Prevent the Harms Addressed by the Apex Doctrine
Washington discovery rules already protect potential deponents—including
high-level officers—from unduly burdensome discovery. CR 26.2 Umpqua impliedly
concedes this by arguing that courts consider apex factors (personal knowledge and
less intrusive means) when ruling on discovery requests for high-level officials. Trial
courts have wide discretion to limit discovery based on the needs of the case and will
do so if a party establishes that undue burden or expense would be avoided by a
protective order without impeding the discovery process. CR 26(c). Courts limit
discovery that “is obtainable from some other source that is more convenient, less
burdensome, or less expensive.” CR 26(b)(1)(A). Umpqua simply had to show good
cause existed for the court to limit discovery based on the CR 26 factors.
Umpqua essentially asks us to amend the Civil Rules. The apex doctrine flips
the burden by requiring the party seeking to depose a high-level witness to show both
that the witness has unique, nonrepetitive, firsthand knowledge of the facts and that
2
See also Diaz v. Wash. State Migrant Council, 165 Wn. App. 59, 84 n.6, 265 P.3d 956 (2011)
(“[P]articularly where corporate principals are named as parties, a trial court may determine that
one source of response is sufficient or superior. See CR 26(b)(1)(A), (B); CR 26(c). We also
recognize that some courts have acted to protect persons in upper levels of management from
discovery where there is no warrant for requiring the participation of such individuals.”).
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the party has exhausted less intrusive means, such as interrogatories and depositions
of other employees, without success. This conflicts with our otherwise broad
allowance for discovery, the rules of which adequately protect apex officials along
with all other witnesses. We decline to amend the Civil Rules in this way.
b. The Apex Doctrine Is Not Ubiquitous across Jurisdictions and Its
Influence Appears To Be Declining
Umpqua argues the apex doctrine is “almost universally accepted” in the
federal system and in other states. Pet’r’s Opening Br. at 4, 22. We disagree. We
find no majority rule, and, of those courts that have adopted the apex doctrine, there is
considerable variation in its application.
Federal courts have treated the apex doctrine inconsistently, noting that it
“exists in tension with the otherwise broad allowance for discovery of party witnesses
under the federal rules.” Apple Inc. v. Samsung Elecs. Co., Ltd., 282 F.R.D. 259, 263
(N.D. Cal. 2012). The only federal appellate court to address the doctrine by name
has rejected it. Serrano, 699 F.3d 884. Of the courts that have adopted the doctrine,
some shift the burden of proof to the party seeking discovery, see Degenhart v. Arthur
State Bank, No. CV411-041, 2011 WL 3651312, at *1 (S.D. Ga. Aug. 8, 2011) (court
order), others require the party seeking a protective order to establish good cause
through application of the apex factors, see Scott v. Chipotle Mexican Grill, Inc., 306
F.R.D. 120, 122 (S.D.N.Y. 2015) (court order); Dyson, Inc. v. SharkNinja Operating
LLC, No. 1:14-cv-0779, 2016 WL 1613489, at *1 (N.D. Ill. Apr. 22, 2016) (court
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order), while still others have developed a burden-shifting scheme, see Naylor Farms,
Inc. v. Anadarko OGC Co., No. 11-cv-01528-REB-KLM, 2011 WL 2535067, at *2
(D. Colo. June 27, 2011) (court order) (party seeking deposition initially must show
the executive has some personal knowledge of relevant issues, then burden shifts and
ultimately rests with executive invoking the apex doctrine). Simply put, the
“majority” of federal courts do not apply the apex doctrine in the way Umpqua
asserts. Rather, courts grapple with its apparent inconsistencies with discovery
principles by developing burden-shifting schemes or other rationales for its
application.
States are equally inconsistent when it comes to the apex doctrine. Five states
have adopted the apex doctrine, see, e.g., In re Amend. to Fla. Rule of Civ. Proc.
1.280, 324 So. 3d 459 (Fla. 2021); State ex rel. Mass. Mut. Life Ins. Co. v. Sanders,
228 W. Va. 749, 724 S.E.2d 353 (2012); Alberto v. Toyota Motor Corp., 289 Mich.
App. 328, 796 N.W.2d 490, 494 (2010); Crown Cent. Petrol. Corp. v. Garcia, 904
S.W.2d 125, 128 (Tex. 1995); Liberty Mut. Ins. Co. v. Super. Ct., 10 Cal. App. 4th
1282, 13 Cal. Rptr. 2d 363, 365-67 (1992), while at least seven states have rejected it,
see, e.g., Gen. Motors, LLC v. Buchanan, 313 Ga. 811, 874 S.E. 2d 52, 64 (2022);
BlueMountain, 465 P.3d 122; Crest Infiniti II, LP v. Swinton, 2007 OK 77, ¶ 17, 174
P.3d 996, 1004; State ex rel. Ford Motor Co. v. Messina, 71 S.W.3d 602 (Mo. 2002);
Andrews v. Devereux Found., 2021 WL 3465051 (Pa. Super. Ct. Aug. 6, 2021)
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(unpublished) (mem.); Bradshaw v. Maiden, 2017 WL 1238823 (N.C. Super. Ct.
2017) (unpublished) (court order); Netscout Sys., Inc. v. Gartner, Inc., 2016 WL
5339454 (Conn. Super Ct. 2016) (unpublished). A Colorado court recently surveyed
the case law and concluded that the apex doctrine is declining in influence.
BlueMountain, 465 P.3d at 132.
We conclude that the apex rule is not widely followed; its application is
inconsistent and its acceptance is waning.
III. APPLICATION
Having concluded that the apex doctrine is inconsistent with Washington
discovery law, we now turn to the protective order before us.
We defer to a trial court’s discovery rulings and will not interfere absent an
abuse of discretion causing prejudice. Doe, 117 Wn.2d at 777. A trial court abuses its
discretion if its decision is manifestly unreasonable or exercised on untenable grounds
or for untenable reasons. Cedell, 176 Wn.2d at 694.
Umpqua had the burden of establishing good cause existed to limit discovery.
“To establish good cause, the party should show specific prejudice or harm will result
if no protective order is issued.” McCallum v. Allstate Prop. & Cas. Ins. Co., 149 Wn.
App. 412, 423-24, 204 P.3d 944 (2009) (citing Dreiling v. Jain, 151 Wn.2d 900, 916-
17, 93 P.3d 861 (2004)). When possible, parties should submit affidavits and concrete
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examples demonstrating the specific facts showing harm; broad and conclusory
allegations of potential harm will not suffice. Id.; see also Serrano, 699 F.3d at 901.
Other than citing CR 26(b)(1) and (c), Umpqua did not present specific facts or
argument as to how the depositions would be duplicative, burdensome, and harassing.
Nor did it show prejudice or harm would result if the protective order was not issued.
Instead it reiterated that the executives had no personal knowledge and that Stratford
could obtain the information elsewhere, without naming any particular source. This is
not enough to show good cause; thus, the trial court was well within its discretion to
deny the protective order under CR 26.
CONCLUSION
Washington has not adopted the apex doctrine, and we decline to do so now.
The trial court properly denied Umpqua’s motion for a protective order because it
failed to establish good cause under CR 26. Accordingly, we affirm the trial court, lift
the emergency stay, and remand for proceedings consistent with this opinion.
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WE CONCUR:
Bender, J.P.T.
19
Stratford v. Umpqua Bank
Combined Opinion