Florida Supreme Court Adopts Apex Doctrine

On August 26, 2021, the Florida Supreme Court amended the Florida Rules of Civil Procedure to adopt the so-called “apex doctrine” that protects high-level corporate officers from abusive discovery. Generally speaking, jurisdictions that adopt the apex doctrine require a party seeking to depose high ranking officials in a company or government agency to demonstrate that the party seeking discovery has exhausted less burdensome means to obtain the discovery and that the high-level official has a unique ability to provide relevant information that cannot be obtained from other sources.

Prior to the Florida Supreme Court’s action on Thursday, Florida had codified the rule for government agencies, but had not seen fit to do so for corporations. Thus, when a litigant sought to depose Mr. Osamu Suzuki himself in Suzuki Motor Corp. v. Winkler, both the trial court and the First District Court of Appeal did nothing to prevent the deposition, even though there was no showing that Mr. Suzuki had a unique ability to provide relevant information or that the information could not be obtained from other sources.  Decisions like these made Florida something of an outlier.

As the dissent in Suzuki Motor Corp. observed, the case law in Florida had devolved into routine pronunciations that Florida Court’s had not previously adopted the apex doctrine in the corporate context. What was missing from Florida appellate courts’ long-standing abdication on the issue was a thorough analysis of whether or not Florida should adopt the apex doctrine, despite the fact that no appellate court had yet gone out on a limb and done so.

Now, the Florida Supreme Court has finally intervened – and not by ruling in the Suzuki case, but rather by amending the Florida Rules of Civil Procedure. In grafting the apex doctrine onto Rule 1.280, the Florida Supreme Court observed that Florida has long recognized that apex depositions of government officials are ripe for abuse. The Florida Supreme Court also noted that apex depositions are generally an inefficient means of discovery and that they generally have deleterious effects on organizations that outweigh the benefits of such depositions.  Finally, and most importantly, the Florida Supreme Court observed that these considerations are equally valid in the corporate context, and are not unique to apex depositions of government agencies.

Thus, the Florida Supreme Court added subsection (h) to Florida Rule 1.280(h) which provides:

(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.

While this amendment is important in all manner of litigation, it is very important in financial services litigation. The use of unnecessary apex deposition notices in financial services litigation was a common tactic in the consumer litigation in Florida to generate leverage in otherwise weak consumer cases.  Thus, the Florida Supreme Court’s decision to adopt what much of the rest of the country already considered common sense is a welcome change, albeit long overdue.

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