Limiting Depositions of Corporate Director-Counsel and Excluding Unlawful Disclosures from ADEA Retaliation

Introduction

This commentary examines the Fourth Circuit’s unpublished decision in Bradford Kendrick v. Carter Bank & Trust, Inc. decided March 21, 2025. The plaintiff, a longtime bank executive, sued under the Age Discrimination in Employment Act (ADEA) for disparate treatment, hostile work environment, and retaliation after being passed over for promotion, reassigned, harassed with age-related comments, and ultimately terminated for disclosing confidential bank records on PACER. Two discovery disputes also arose: (1) whether plaintiff could depose a bank director who also served as outside counsel (invoking the “apex doctrine” and “Shelton test”), and (2) whether a late “Notice of Supplemental Facts” should be stricken. The Fourth Circuit affirmed the district court’s protective order, its striking of the supplemental notice, and summary judgment for the bank on all ADEA claims.

Summary of the Judgment

The Fourth Circuit affirmed in full. On discovery, it held the magistrate judge and district court did not abuse their discretion in entering a Rule 26(c) protective order barring the deposition of a high-ranking director who had also provided legal advice, and in striking plaintiff’s untimely supplemental facts. On summary judgment, the court applied de novo review under Rule 56 and confirmed:

Disparate Treatment: Plaintiff failed to show an adverse action based on age—his lack of performance reviews did not alter his employment conditions and his termination was for cause (unauthorized disclosure of confidential records), not age.
Hostile Work Environment: Isolated, offhand comments about hiring younger employees and succession planning were not sufficiently severe or pervasive to constitute actionable harassment under the ADEA.
Retaliation: Plaintiff’s public posting of non–public personal information violated federal law (15 U.S.C. § 6802) and bank policy, and thus was not protected activity; moreover, there was no causal nexus between his prior EEOC charge and his termination.

Analysis

Precedents Cited

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): The burden-shifting framework for circumstantial discrimination and retaliation claims under federal employment statutes.
Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986): The three-part “Shelton test” limiting depositions of opposing counsel.
Performance Sales & Marketing LLC v. Lowe’s Cos., Inc., No. 5:07-cv-140, 2012 WL 4061680 (W.D.N.C. Sept. 14, 2012): Recognizing the “apex doctrine,” which presumes undue burden in deposing high-ranking corporate officers.
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc): Establishing the standard for “severe or pervasive” harassment in a hostile work environment claim.
Jordan v. Virginia Department of Corrections, 921 F.3d 180 (4th Cir. 2019): Standard for abuse of discretion in discovery rulings.

Legal Reasoning

1. Discovery Rulings – Abuse of Discretion
Under Rule 26(c), a protective order is reviewed only for abuse of discretion and a showing of substantial prejudice. The court held (a) the “apex doctrine” created a rebuttable presumption that deposing a director-counsel is unduly burdensome; (b) the Shelton test required plaintiff to show a lack of other means to obtain the facts, relevance to non-privileged matters, and that the deposition would not be used to harass or burden counsel. Plaintiff never exhausted other discovery tools or justified why he needed that specific deposition, so the order barring it was justified. Similarly, striking the untimely supplemental notice was proper under the district’s Local Rule requiring leave of court after briefing closes.

2. Summary Judgment on ADEA Claims – De Novo Review
Applying McDonnell Douglas, the court assessed each claim:

Disparate Treatment: To make a prima facie case plaintiff needed an adverse employment action. The court found no adverse effect from missing performance reviews, and his termination was for violating confidentiality, not age bias.
Hostile Work Environment: The “severe or pervasive” standard demands frequent, severe, or physically threatening conduct. Here, offhand remarks about hiring younger talent were too isolated and mild.
Retaliation: Protected activity excludes unlawful acts. Plaintiff’s posting of nonpublic personal information violated 15 U.S.C. §6802(a) and bank policy. Without protected activity or a causal connection, the retaliation claim failed.

Impact

Although unpublished and non‐binding, this decision clarifies in the Fourth Circuit that:

Corporate directors who also serve as counsel enjoy heightened protection against deposition under the apex doctrine and Shelton test unless a litigant shows no other source of the information and a compelling need.
ADEA retaliation does not extend to conduct that independently violates statutory confidentiality obligations or employer policies.
Isolated age‐related comments, unaccompanied by tangible adverse effects or a pattern of harassment, will rarely suffice to establish a hostile work environment under the ADEA.

These holdings will guide litigants and courts in framing discovery disputes and ADEA claims involving employer confidentiality rules and age-based remarks.

Complex Concepts Simplified

Apex Doctrine: A principle that creates a presumption against deposing top officers (the “apex” of the company) because such depositions can be unduly burdensome and disruptive.
Shelton Test: A three-part inquiry for deposing opposing counsel: (1) no other means to obtain the info, (2) information is relevant and non-privileged, (3) testimony won’t impose an undue burden or harass.
McDonnell Douglas Framework: A three-step, burden-shifting test for discrimination/retaliation claims using circumstantial evidence: (1) prima facie showing, (2) employer’s legitimate non-discriminatory reason, (3) plaintiff’s proof of pretext.
“Severe or Pervasive” Standard: Hostile work environment claims require harassment that is frequent, severe, or threatening enough to alter employment conditions—mere insults or offhand jokes are insufficient.

Conclusion

The Fourth Circuit’s decision in Kendrick v. Carter Bank & Trust reaffirms strict limits on depositions of high-ranking executives who also serve as counsel, underscores the requirement to exclude untimely filings without court leave, and clarifies that unlawful disclosures of confidential customer data are not protected ADEA activity. Practitioners should take care when seeking to depose corporate officers, adhere to procedural deadlines, and recognize that isolated ageist remarks will seldom sustain hostile environment claims. The case thus offers practical guidance on discovery strategy and the proper scope of ADEA protections.