Mark Zuckerberg
The State’s lawsuit against Meta over its use of facial-recognition technology has hit the Texas Supreme Court in the form of a discovery dispute.
In In re Meta Platforms, Inc. (No. 24-0046; emergency stay granted January 29,2024), the State, which has alleged that Meta has violated the DTPA and The Capture of Use of Biometric Identifier Act (Chapter 503, Business & Commerce Code), is seeking to take the deposition of Meta’s founder and CEO, Mark Zuckerberg. A Harrison County district court denied Meta’s motion for a protective order, and the Texarkana Court of Appeals affirmed. Meta is now seeking mandamus relief from the Texas Supreme Court, which has granted the company’s request for an emergency stay and ordered the OAG to respond to its petition by February 20.
The issue is whether the apex-deposition doctrine applies to this case. This doctrine holds that in order to take an apex official’s (i.e., corporate CEO’s) deposition, the requesting party must show that: (1) the apex official has “unique or personal knowledge” or (2) the party has “made a good faith, but less than fruitful, attempt to obtain discovery by less intrusive means” (citing In re Am. Airlines, Inc., 634 S.W.3d 38 (Tex. 2021)). Pointing out that Meta has already provided 20 deposition witnesses, eight of whom were corporate representatives (including the corporate product officer), as well as more than 300,000 pages of pertinent documents, the company contends that the state has simply not carried its burden on either prong of the test. Zuckerberg, it argues, is the classic corporate CEO in every sense, managing the senior management team and overseeing corporate strategy of performance. He has no direct hand in either the development, launch, or management of the “Tag Suggestions” Facebook feature at issue in the case. The product officer who has those responsibilities, the chief product officer, has already been deposed. There is nothing more the State can learn from deposing the CEO.
It’s a little hard to tell from Meta’s petition precisely what the State’s argument actually is. It appears from the petition that the State contends that the apex doctrine simply does not apply because Zuckerberg cannot deny having any knowledge of the use of the technology. If this is indeed the State’s argument, it has to be wrong. It would be strange indeed for a corporate CEO to be subject to a deposition for essentially doing his or her job: overseeing the company’s operations and direction, keeping the board of directors, shareholders, and analysts happy, and making the big decisions that need to be made. To claim that only a CEO who is blissfully ignorant of what his or her company is doing makes no sense whatsoever. In its petition Meta also alleges that the State began seeking Zuckerberg’s deposition before it deposed Meta employees actually responsible for the use of the technology, strongly suggesting that it didn’t much care for the “less intrusive means” part of the apex doctrine test, either.
We look forward to the State’s response on February 20. Judging solely from Meta’s petition, however, we agree with Meta that if the apex doctrine doesn’t apply in this case, it doesn’t apply in any case. Ergo, if the State sues any business of significant size, particularly a multi-state or multi-national corporation, the first order of business will be to notice the deposition of the apex official. In certain kinds of cases, as you can imagine, this will be done for maximum publicity and, as SCOTX stated in Crown Cent. Petrol. Corp. v. Garcia, 904 S.W.2d 125, 127 (Tex. 1995), to impose “undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional, or property rights.” We are pleased that SCOTX has seen fit to slow down this train before it jumps the tracks.
