by Michael R. Huttenlocher and Abigail Blaker

Plaintiffs all too often seek to depose a business’ most senior executives—officers, board members, and other “apex” officials—in an attempt to create tactical leverage to pressure an early settlement. The strategy is often deployed in litigation against the portfolio companies of private equity sponsors. Plaintiffs’ counsel frequently seek to depose high-ranking executives of those sponsors, hoping that the inconvenience and distraction of a deposition motivates an early resolution. The apex witness doctrine has emerged as a critical judicial safeguard to defend high-ranking executives from this common ploy.

The apex witness doctrine shields high-profile witnesses from deposition unless it is established that (1) the witness has unique, firsthand knowledge of the specific facts at issue, and (2) there are no less intrusive means of obtaining the factual knowledge or that those less intrusive means have been exhausted without success.[1] The doctrine ensures that discovery remains focused, efficient, and fair, and that high-profile individuals are not subjected to unnecessary business disruption absent a clear showing of need.

Counsel for soccer superstar Lionel Messi recently employed the apex witness doctrine to shield him from sitting for a deposition in the hotly contested trademark and trade dress dispute over Messi’s sports drink “MÁS+” and Logan Paul’s rival beverage “Prime.”[2] Early in discovery, Prime sought Messi’s deposition and Messi responded that (1) he had no unique or personal knowledge relevant to the claim because he wasn’t a key marketing or trade dress decision-maker; (2) any information he had could be more easily obtained through other witnesses, including several members of his management team who attended all relevant meetings alongside him; and (3) a deposition would impose an undue burden on him, given his soccer schedule and extensive professional commitments.[3] On July 23, 2025, the U.S. District Court for the Southern District of New York, noting that Prime had not first attempted to depose other witnesses or employ any less intrusive means of discovery, ordered that Messi be shielded from deposition under the apex witness doctrine, unless it could be later shown that he had some unique knowledge that was unavailable from other sources.[4]

By granting the protective order for Messi, the Court reaffirmed that high-profile individuals are entitled to protection from unnecessary and burdensome discovery, and that parties seeking such depositions must make a concrete showing that the individual possesses unique knowledge relevant to the claim and that such parties had exhausted alternative sources first. Although it is not an absolute bar to discovery, the apex witness doctrine is a powerful shield that can be used to fight back against the aggressive litigation tactics employed against high-ranking executives.

[1] Chang v. Mizuho Sec. USA LLC, No. 21-cv-03874 (MMG), 2024 WL 3824101, at *2 (S.D.N.Y. Aug. 15, 2024).

[2] See Order, Mark Anthony Int’l SRL v. Prime Hydration, LLC, No. 24 Civ. 7620 (PAE), ECF No. 78 (S.D.N.Y. July 23, 2025).

[3] Id. at 3.

[4] Id. at 6.