The Florida Supreme Court, in a six to one decision, ruled that the “Apex Doctrine,” which historically only applied only to high-level government officers, will now also apply to high-level business officers.
Traditionally, the apex doctrine was framed to balance the competing goals of limiting potential discovery abuse and ensuring litigants’ access to necessary information. Properly applied, the doctrine “will prevent undue harassment and oppression of high-level [government] officials while still providing a [party] with several less-intrusive mechanisms to obtain the necessary discovery, and allowing for the possibility of conducting the high-level deposition if warranted.”
The Court’s August 26, 2021 decision to codify the apex doctrine arose from a certiorari appeal from a split decision by the First District Court of Appeal in Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019). Winckler raised the question of whether the apex doctrine should be applied to governmental agencies, but not corporations. The Court dismissed Winckler and addressed the issues with a rules opinion, amending Florida Rule of Civil Procedure 1.280(h) and incorporating the Apex Doctrine into it.
Suzuki Motor Corp. v. Winckler was a product liability case in which the plaintiff sued the Suzuki Motor Corp. alleging that the brakes failed on his GSX-R series Suzuki motorcycle while he was riding it, resulting in a crash that left the plaintiff paralyzed from the waist down. In the course of discovery, the plaintiff sought a letter rogatory from the trial court seeking to take the examination of Mr. Osamu Suzuki, the Chairman of the Board of Suzuki Motor Corporation, in Japan. The plaintiff claimed that Mr. Suzuki “possesses unique knowledge about specific facts relevant to [the] allegations,” citing the Chairman's involvement with a document addressing the brake issue and a related email, and the trial court ultimately allowed the deposition. A split decision in the First District Court of Appeal resulted in the case going to the Florida Supreme Court on certiorari review.
In its recent rules opinion, the Florida Supreme Court stated: “We believe that it is in Florida’s best interests to codify the apex doctrine in our rules of civil procedure and to apply the doctrine to both private and government officers. Making this change as a rule amendment allows us to ensure consistency across the two contexts and to define and explain the apex doctrine as clearly as possible.”
New Florida Rule of Civil Procedure 1.280(h) reads: “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.”
This rule change will surely play a critical role in the future of discovery, as the focus will now be on determining who exactly is “high-level” and what exactly is “unique, personal knowledge.” While the Civil Procedure Rules Committee continues to review the ruling in consideration of offering a comment on the rule amendment, it seems that Florida has entered into a new era of protections for corporations and their officers.