Why This Case is Important
Corporate executives and their legal counsel should immediately take note of the recently amended rule of civil procedure in Florida, which now formally recognizes high level corporate officials as a protected party under the Apex Doctrine.
On August 26, 2021, the Supreme Court of Florida formally expanded the protection offered by the apex doctrine to apply not only to high level government officials, but also to top corporate executives. In Re: Amendment to the Florida Rule of Civil Procedure 1.280, No. SC21-292 (Fla. August 26, 2021). Prior to this decision, there was a split in the First District Court of Appeal as to whether the apex doctrine applied to high level corporate officials in addition to their government counterparts. The First District Court of Appeal in Suzuki Motor Corp v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019), found that the doctrine did not extend to corporate officials. In this new decision, the Supreme Court of Florida disagreed and amended the apex doctrine provision in the Florida Rules of Civil Procedure to include corporate officials as well those in government. Justice Carlos Muniz, in his majority opinion explained that, "the efficiency and anti-harassment principles animating that doctrine are equally compelling in the private sphere." He continued on to say that the court felt it was in the best interest of all involved to codify the addition of corporate officials into the rule. The court cited consistency and clarity as strong reasons for the change. It also pointed out that the case law in this area would be sufficient to support a rule change in this direction.
It is important to note that officials who seek protection under this rule cannot simply claim a broad or blanket lack of knowledge to qualify for its protections. Instead, they must explain why they do not possess unique, personal knowledge. The court also declined to further define the parameters of who qualifies as a "high level official" pointing to the plethora of case law available for reference on this question.
The Apex Doctrine
The apex doctrine requires a party seeking to depose a high ranking official to show that the party seeking the deposition has exhausted less burdensome methods to obtain the information and also that the official has special knowledge that would be unavailable to the party otherwise. The purpose of the apex doctrine is to protect high ranking officials from being subjected to abusive or excessive discovery requests and practices. In sum, the apex doctrine requires that a party seeking to depose a high-level official show:
- The exhaustion of all options for obtaining the needed information from lower-level employees.
- The officer from whom the deposition is sought has unique, personal knowledge of the matter at hand.
Text of the Amended Rule
The amended Florida Rule of Civil Procedure 1.280(h) reads as follows: “A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition. The motion, whether by a party or by the person of whom the deposition is sought, must be accompanied by an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden of production, the court shall issue an order preventing the deposition, unless the party seeking the deposition demonstrates that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information. The court may vacate or modify the order if, after additional discovery, the party seeking the deposition can meet its burden of persuasion under this rule. The burden to persuade the court that the officer is high-level for purposes of this rule lies with the person or party opposing the deposition.”
The Dissent
In the dissenting opinion, Justice Labarga relayed his concerns that this amendment may increase litigation and open up a large potential for "abuse, gamesmanship, expense and delay." He also noted that only four other states have expanded the apex doctrine in this manner- California, Michigan, West Virginia and Texas. Additionally, five states have expressly rejected this expansion- Oklahoma, Mississippi, Colorado, Connecticut and North Carolina.
Practitioner Takeaway
From a practical standpoint, this formal expansion of the apex doctrine should assist lawyers in determining whether or not high level government officials and corporate executives may be called for deposition. It provides a definitive guideline and removes at least some of the ambiguity surrounding the applicability of the apex doctrine to corporate officials that existed before the change. It is also important to remember that the burden of showing lack of knowledge is on the government or corporate official opposing the deposition. The new rule is effective immediately and applies to both current and former officials.
