United States: Florida Supreme Court Codifies Apex Doctrine To Protect Corporate Executives From Abusive Discovery Tactics

On August 26, 2021, the Florida Supreme Court issued an opinion codifying the common-law "Apex Doctrine," adding a new subsection (h) to Rule 1.280, Florida Rules of Civil Procedure. The Apex Doctrine shields high-level government and corporate officers from being deposed when they do not have unique personal knowledge of deposition topics, thereby preventing abusive, harassing discovery tactics. Previously, Florida state courts had not applied this common law doctrine to corporate executives.

Prior Application of the Apex Doctrine

When a large corporation is named as a defendant to a personal injury, medical malpractice or product liability case, for example, the executives in the C-suite likely do not have personal knowledge of the underlying facts and, thus, may not expect to be deposed. Under the common law, the Apex Doctrine could shield those officers from having to sit for a deposition. Indeed, federal courts in Florida already had applied the Apex Doctrine to shield corporate officers from deposition. Office Depot, Inc. v. Elementum Ltd., No. 9:19-cv-81305, 2020 WL 5506445, at *3 (S.D. Fla. Sept. 14, 2020) (denying motion to compel depositions of seven current and former directors).

However, until now, Florida state courts had applied the Apex Doctrine only to high-level government officers. The impetus for the Florida Supreme Court's opinion was Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019), in which the appellate court certified the following question to the Florida Supreme Court: "[D]oes a departure from the essential requirement of law occur when the so-called apex doctrine, which applies to governmental entities, . . . is not applied to a corporation?"

Florida's Codification of the Apex Doctrine

After initially granting the defendant's petition for review, the Florida Supreme Court then discharged its jurisdiction and, on its own motion, amended the Florida Rules of Civil Procedure to codify the Apex Doctrine and extend its reach into the corporate sphere. The new subsection (h) of Rule 1.280, which takes effect immediately and applies to currently pending cases, reads:

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 Court declined to codify a bright-line definition of "high-level government or corporate officer." Instead, courts will determine on a case-by-case basis whether the individual is a "high-level" officer. The high-level officer status will depend on the organization and the would-be deponent's role in the organization, not merely whether the person is an "officer" in a legal context. The terms "officer," "official" and "executive" are all synonymous under this analysis.

The new rule requires the party resisting a deposition to persuade the court that the would-be deponent meets the high-level officer requirement; and to produce an affidavit or declaration explaining the official's lack of unique, personal knowledge of the issues being litigated. Simply stating that the officer does not have knowledge is insufficient to invoke the Apex Doctrine. The Florida Supreme Court noted that a sufficient explanation will show a court the relationship between the officer's position and the facts at issue. There must be enough information to evaluate the facial plausibility of the officer's claimed lack of unique personal knowledge.

However, the new rule does not provide absolute protection to executives. The party seeking the deposition still has the opportunity to depose the officer if they persuade the court that: they have exhausted other discovery; such discovery is inadequate; and the officer has unique, personal knowledge of discoverable information. Nonetheless, these hurdles will undoubtedly curb the potentially harassing tactic of deposing high-level executives, which will prevent the needless expenditure of a company's time and resources.

Impact on Corporate Defendants

Instead of relying on protective orders under Rule 1.280(c), officers without unique, personal knowledge of a topic or event are shielded from burdensome and costly depositions under Rule 1.280(h). Broadly, the new rule will protect high-level corporate officers from being deposed in cases where they don't have personal knowledge of the issues in a case.

This rule prevents a party from seeking unjustified discovery of lead corporate executives for no legitimate reason. This shields corporate officers, and by extension corporations, from the annoyance, undue burden and expense of unnecessary depositions. Therefore, corporate entities that are currently engaged in litigation, or which may be sued in the future, should familiarize themselves with the requirements for invoking the newly codified Apex Doctrine.

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