Florida Supreme Court Adopts Apex Doctrine, Provides Protections for High-Level Corporate Officials
Tampa, Fla. (September 9, 2021) – Historically, Florida state courts have allowed plaintiffs to depose a defendant’s senior executives regardless of whether they have personal knowledge of the underlying claim, a tactic that has been used by some plaintiffs' counsel to exert pressure on the defendant. In federal court, however, this practice is prohibited by the “Apex Doctrine.”
The good news is that the Florida Supreme Court has finally adopted the Apex Doctrine. On August 26, 2021, the court amended the Florida Rules of Civil Procedure following a certified question of the First District Court of Appeal in Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019). In Suzuki, a personal injury case, the plaintiff sought the deposition of the chairman of Suzuki Motor Corporation. Suzuki’s attorneys objected, stating that “its top-level corporate manager should not be subject to examination when others within the corporation could testify to the relevant issues.” The trial court and First District Court of Appeal rejected this argument, noting that “no Florida court has adopted the apex doctrine in the corporate context.”
Rather than ruling in the Suzuki case, the Florida Supreme Court decided that amending the Florida Rules of Civil Procedure provided a better solution. Accordingly, the Amendment to Florida Rule of Civil Procedure 1.280(h) reads:
(h) Apex Doctrine. 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.
Takeaways from Rule 1.280(h)
Following the Florida Supreme Court's adoption of the Apex Doctrine, parties seeking or opposing the deposition of a corporate executive should consider the following important aspects of the rule:
- The party resisting the deposition has (1) the burden to persuade the court that the would-be deponent is a “high-level officer” and (2) the burden to produce an affidavit or declaration explaining the officer’s lack of personal knowledge;
- If the party seeking the deposition wants to overcome this showing, it must establish that “it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information;” and
- This new rule is effective immediately and applies in all pending cases.
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Kristy Pantaleon, Law Clerk
David S. Harvey, Jr., Partner