In a recent Washington state Supreme Court ruling, the state high court declined to adopt the so-called apex doctrine—a practice that sometimes grants high-ranking executives immunity from being deposed due to their position.

Roberts Freebourn PLLC, of Spokane, argued against the apex doctrine and won. The question brought before the state high court was regarding whether three high-level executives from Portland, Oregon-based Umpqua Bank could be protected from being deposed in an underlying lawsuit that’s been filed in Spokane County Superior Court alleging negligent hiring and fraud.

The state Supreme Court unanimously rejected the financial institution’s request to adopt the apex doctrine in an opinion filed on Sept. 14.

According to the American Bar Association, the apex doctrine is intended balance protections for high-level corporate officers from the risk of abusive discovery and the rights of opposing litigants to depose such executives if necessary.

Kevin Roberts, co-founder of Roberts Freebourn, says, “What we pointed out to the Supreme Court is, how do you define or decide who is too important?” he says. “Is it enough if I’m the CEO of a company of five employees? Do I have to make a certain amount of money?”

Roberts adds that there already exists a body of law in which anyone who wants to avoid being deposed must show to the court a valid reason.

“It’s a pretty high standard to avoid being deposed in a case,” he says.

Attorneys representing the defendants are Daniel A. Brown, of Seattle-based Williams Kastner & Gibbs PLLC; Adam Rosenberg, of Seattle-based Keller Rohrback Law Offices LLP; and Jessica M. Cox, of Bellevue, Washington-based Sebris Busto James. None of them responded to requests for comment.

The motion stems from the ongoing lawsuit in Superior Court in which Roberts’ client, Heather Stratford, founder and CEO of Drip7 Inc., and her husband, William B. Geibel Jr., are suing Umpqua Bank and its former loan officer Bryan Jarrett for claims of negligent hiring, fraud, and negligent representation, the opinion states.

According to the court file, Jarrett had a history of misconduct, and in 2014, the Office of Insurance Commissioner revoked his license. In 2015, he was hired by Umpqua Bank’s Spokane office as a home lending retail loan officer. Umpqua didn’t learn about Jarrett’s disciplinary record with the OIC during this process, court records show. During his time at Umpqua however, records state that “Jarrett’s conduct as a loan officer resulted in numerous customer complaints.”

Stratford met Jarrett in late 2016 at an Umpqua office in Spokane to discuss a construction loan. Jarrett recommended that the couple use “his builder,” with whom Stratford entered into a contract to build a home for $402,268 with financing from Umpqua, court filings show.

The builder began construction in July 2017 but didn’t finish the home, which was damaged by exposure to the elements. 

In November of 2017, Umpqua fired Jarrett while construction of Stratford’s home was underway, the filings show.

Stratford sued the construction company in 2020, and the trial court awarded Stratford a total of $554,631 in damages, court records show.

In May of 2021, Stratford filed the current suit in Superior Court against Jarrett and Umpqua Bank, and in January of 2022 issued multiple subpoenas to three Umpqua executives: the company’s CEO and the heads of its human resources and loan departments, says Roberts.

Roberts says he’s seeking to bring Stratford back to equilibrium. Damages, including attorney fees and interest, will likely be around $850,000, he says. 

“We’re trying to get our client back to where they would have been had they never utilized them (Umpqua),” he says. 

Umpqua moved for a protective order, asserting that deposing senior, “apex” executives “was unnecessary and appeared to be merely a harassment tool.” The bank added that the executives weren’t involved in Stratford’s loan and didn’t supervise Jarrett, nor were they involved in his termination from the bank, the motion states.

Roberts says, “Part of the legal process for discovery is to be able to ask questions to potential witnesses and especially about company policies—whether this is the type of employee that Umpqua, under its policies, would or should have hired or could have hired under the banking regulations.”

Stratford wanted to depose the CEO of Umpqua Bank via Zoom, “because the CEO is responsible for complying with fiduciary duties and disclosures in highly regulated, publicly traded companies” and to ask about bankwide calls regarding hiring policies, court documents say.

While the executives can say in a deposition they had no knowledge of Jarrett, Roberts says he will also be asking the executives about matter of which they do have knowledge.

The Supreme Court ruling affirms the Superior Court’s earlier denial of the protective order, which reasoned that Washington state already has applicable rules for discovery.

Roberts says the question of whether to adopt the apex doctrine has been a “hot” issue across the country in recent years.

The apex doctrine originated in the 1980s and has been adopted by some federal and state courts, he says.

“When the Washington Supreme Court took it, I think they wanted to follow some of the other states just in terms of making it clear that, in our system of justice here in Washington, there’s no favoritism,” Robert says.