The Florida Supreme Court has formally adopted the Apex Doctrine and incorporated it into the Florida Rules of Civil Procedure. On August 26, 2021, the Court amended Florida Rule of Civil Procedure 1.280 by codifying the Apex Doctrine. Florida became only the fifth state to formally adopt the Apex Doctrine. The doctrine protects “high-level” corporate and government officers from the risk of abusive discovery. Florida appellate courts previously applied the Apex Doctrine in the governmental context, but not in the corporate context. As a result, high-ranking corporate officers were at risk of being subject to a deposition in a case where they had no unique, personal knowledge.
Previously, corporations in Florida state courts opposed depositions of high-level officers arguing that the rationale of the Apex Doctrine applies equally to private corporations. The same potential for abuse and harassment with depositions of high-ranking government officers applies to high-ranking corporate officers. Further, federal courts nearly uniformly apply the Apex Doctrine to private corporations, and prohibit depositions of high-ranking officers where the information sought is available through other employees. Nevertheless, high-ranking corporate officers were not protected from depositions by the Apex Doctrine in Florida state courts.
The impetus for the rule amendment was the case of Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019). Mr. Winkler was injured in a motorcycle crash, and sued Suzuki Motor Corporation, claiming that the front brake system on his motorcycle allegedly failed. The Plaintiff sought to depose Osamu Suzuki, the company’s chairman and former chief executive officer. Suzuki Motor Corporation opposed the deposition, in part, based on the Apex Doctrine. Specifically, Suzuki Motor Corporation argued that Mr. Suzuki had no unique, personal knowledge, and there were other company representatives who could better testify on the relevant issues.
The trial court found that the Apex Doctrine did not apply to private corporations, like Suzuki Motor Corporation. The First District Court of Appeal affirmed the trial court decision and noted, “No Florida court has adopted the apex doctrine in the corporate context.” Nevertheless, the First District certified to the Florida Supreme Court the issue of whether the Apex Doctrine applies in the corporate context. Through the amendment to Rule 1.280, the Court extended the protections of the Apex Doctrine to private corporations. The Court commented, “We see no good reason to withhold from private officers the same protection that Florida courts have long afforded government officers.”
Rule 1.280(h) now provides: “A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition.” Notably, the burden to establish that an officer is “high-level” is on the party opposing the deposition. The Court noted it was not feasible to try to define “high-level” officer and that this threshold issue will have to be determined by the trial court.
The officer whose deposition has been requested must provide an affidavit explaining that the officer “lacks unique, personal knowledge of the issues being litigated.” After the affidavit is produced, the party seeking the deposition bears the burden to show that other discovery has been exhausted, and that the officer has unique, personal knowledge of discoverable information. By shifting the burden to the party seeking the apex deposition, the Court has put protections in place to limit the potential for abusive and harassing deposition requests.
