FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-4815
_____________________________
SUZUKI MOTOR CORPORATION, a
foreign corporation,
Petitioner,
v.
SCOTT WINCKLER,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
August 29, 2019
OSTERHAUS, J.
Suzuki Motor Corporation seeks certiorari review of an order
granting an application for a letter rogatory to take the
examination of Mr. Osamu Suzuki, its current Chairman and
former Chief Executive Officer. In the order, the trial court found
that the “apex doctrine” does not apply outside the governmental
context and that Mr. Suzuki was uniquely able to provide
information relevant to this case. We deny the petition because the
trial court’s decision does not depart from the essential
requirements of law.
I.
Scott Winckler’s case alleges that on June 16, 2013, the brakes
failed on his GSX-R series Suzuki motorcycle while he was riding
it. The bike crashed and paralyzed Mr. Winckler from the waist
down. Four months after the accident, Suzuki Motor Corporation
issued a recall on the brakes of its GSX-R series motorcycles.
Mr. Winckler filed a products liability suit against Suzuki
Motor Corporation related to his accident and the brake issue. In
the course of discovery, he sought a letter rogatory from the trial
court seeking to take the examination of the Chairman of the
Board of Suzuki Motor Corporation in Japan. See Fla. R. Civ. P.
1.300(b). Mr. Winckler’s application stated that the Chairman
“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.
Suzuki Motor Corporation filed objections to the application
and a motion seeking protection under the apex doctrine. Its
position was that its top-level corporate manager should not be
subject to examination when others within the corporation could
testify to the relevant issues. ∗ It also filed a declaration from
Chairman Suzuki in opposition to the application, stating that he
has “no independent memory” of reviewing or signing the
document regarding the brake issue and “no personal knowledge”
of the details.
After a hearing in October 2018, the trial court granted the
motion for a letter rogatory. It found that the apex doctrine hadn’t
been applied outside of the governmental context and couldn’t be
applied to the corporate officer here. Besides rejecting the apex
doctrine, the court found that that the Chairman had personal
involvement and could uniquely provide case-relevant information
due to having personal involvement with the brake issue. After the
trial court granted the application, this petition for writ of
certiorari followed.
∗
Mr. Winckler’s counsel deposed Suzuki Motor Corporation’s
corporate representative earlier this year but weren’t satisfied
with some of his answers.
2
II.
We review petitions for writ of certiorari for “(1) a departure
from the essential requirements of the law, (2) resulting in
material injury for the remainder of the case (3) that cannot be
corrected on postjudgment appeal.” Citizens Prop. Ins. Corp. v. San
Perdido Ass’n,
104 So. 3d 344, 351 (Fla. 2012) (citations omitted).
Our analysis focuses on the first prong—a departure from the
essential requirements of the law. A departure from the essential
requirements of the law is “a violation of a clearly established
principle of law.” State v. Belvin,
986 So. 2d 516, 525-26 (Fla. 2008)
(quoting Belvin v. State,
922 So. 2d 1046, 1048 (Fla. 4th DCA
2006)).
Suzuki Motor Corporation argues that the trial court’s order
granting a letter rogatory violates the apex doctrine. The problem
with its argument is that the doctrine is only clearly established in
Florida in the government context, with respect to high-ranking
government officials. The essence of Florida’s apex doctrine is that
“[an] agency head should not be subject to deposition, over
objection, unless and until the opposing parties have exhausted
other discovery and can demonstrate that the agency head is
uniquely able to provide relevant information which cannot be
obtained from other sources.” Dep’t of Agric. & Consumer Servs. v.
Broward Cty.,
810 So. 2d 1056, 1058 (Fla. 1st DCA 2002)
(emphasis added). “[A] party seeking to depose a . . . high-ranking
governmental official must demonstrate the personal involvement
of the official in a material way or the existence of extraordinary
circumstances.” Horne v. Sch. Bd. of Miami-Dade County,
901 So.
2d 238, 241 (Fla. 1st DCA 2005) (emphasis added). We highlight
“agency head” and “governmental official” because we have noted
before that “no Florida court has adopted the apex doctrine in the
corporate context.” Fla. Office of Ins. Regulation v. Fla. Dep’t of
Fin. Servs.,
159 So. 3d 945, 951 (Fla. 1st DCA 2015); see also
Remington Lodging & Hospitality, LLC v. Southernmost House,
Ltd.,
206 So. 3d 764, 765 n.1 (Fla. 3d DCA 2016). We emphasized
in that case (though in dicta) “that the government context is
distinguishable [from the corporate context] because of separation
of powers concerns.”
Id. And so, it follows that because
the apex doctrine hasn’t been adopted in the corporate context, the
trial court did not depart from the essential requirements of the
3
law by refusing to apply this doctrine to Suzuki Motor
Corporation’s corporate officer.
Moreover, trial court’s decision that the Chairman’s
deposition was reasonably calculated to lead to the discovery of
admissible evidence provides no basis for us to quash the order
below. See Fla. R. Civ. P. 1.280(b)(1) (allowing a party to discover
any matter that is not privileged and is relevant to the subject
matter of the pending action or appears reasonably calculated to
lead to the discovery of admissible evidence); Univ. of W. Fla. Bd.
of Trs. v. Habegger,
125 So. 3d 323, 325 (Fla. 1st DCA 2013). In
deciding whether to grant a writ of common-law certiorari, we are
not so much concerned with “the mere existence of legal error as
much as with the seriousness of the error.” Combs v. State,
436 So.
2d 93, 95-96 (Fla. 1983). The district court should grant a petition
“only when there has been a violation of a clearly established
principle of law resulting in a miscarriage of justice.” Id.; see also
Jones v. State,
477 So. 2d 566, 569 (Fla. 1985) (Boyd, C.J.,
concurring specially) (noting that a “departure from the essential
requirements of law . . . means an inherent illegality or
irregularity, an abuse of judicial power, an act of judicial tyranny
perpetrated with disregard of procedural requirements, resulting
in a gross miscarriage of justice).” Here, we are mindful that trial
courts have broad discretion in overseeing discovery and in
protecting persons from whom discovery is sought. Fla. R. Civ. P.
1.280(c); Rojas v. Ryder Truck Rental, Inc.,
641 So. 2d 855, 857
(Fla. 1994). In this instance, the trial court’s order cited specific
evidence supporting its conclusion that the Chairman was
personally involved with recall-related corporate documents and
uniquely able to provide relevant information. Cf. Remington
Lodging & Hospitality,
206 So. 3d 764; Racetrac Petroleum v.
Sewell,
150 So. 3d 1247 (Fla. 3d DCA 2014). With documentary
support underlying its ruling, we cannot conclude that this
situation is like the Habegger and General Star Indemnity Co. v.
Atlantic Hospitality of Florida, LLC,
57 So. 3d 238 (Fla. 3d DCA
2011), cases where trial courts departed from the essential
requirements of law by allowing depositions of high officials that
were not reasonably calculated to lead to the discovery of relevant
evidence.
4
III.
The petition for writ of certiorari is DENIED.
ROWE, J., concurs; B.L. THOMAS, J., dissents with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
B.L. THOMAS, J., dissenting.
This case involves a tragic accident that resulted in
catastrophic injuries. Nevertheless, I must respectfully dissent
because the apex doctrine is and must be equally applicable in the
private sector as it is in the governmental context. And even
assuming the doctrine’s basis in the governmental context is
grounded in the separation of powers under article II, section 3 of
the Florida Constitution, see Fla. Office of Ins. Regulation v. Fla.
Dept. of Financial Services,
159 So. 3d 945, 952 (Fla. 1st DCA
2015), the abusive discovery allowed here has no basis in law or
fact and under traditional rules of relevancy, extraordinary relief
must be granted. Allowing discovery not meant to ferret out the
truth, but designed to create settlement pressures, threatens the
proper operation of the commercial enterprise for no legitimate
factfinding purpose.
To answer the question by stating that the trial court’s ruling
cannot be a departure from law because no law recognizes the apex
doctrine in the corporate context is no answer at all, because
otherwise the doctrine could never be applied. That is precisely why
Florida courts permit extraordinary review of improper discovery
orders by writs of certiorari under Art. V, section 4(b)(3), Fla.
Const.; Fla. R. App. P. 9.030 (b)(2)(A); Allstate Ins. Co. v. Langston,
655 So. 2d 91, 94-95 (Fla. 1995). Here, we should grant the writ
and quash the order.
5
Respondents persuaded the lower court to allow for the
issuance of letters rogatory to take the deposition of Osamu
Suzuki, former Chief Executive Officer and current chairman of
Suzuki Motor Corporation and resident of Japan. This petition
involves a challenge to a one-page document, one of more than
250,000 pages of documents provided to Respondents, which
provides a list of issues relevant to the suit involving a “GSX R
series Front brake pressure loss.”
Mr. Suzuki filed a “Declaration in Opposition to Plaintiff’s
Application for Letter Rogatory” under penalty of perjury pursuant
to section 95.525, Florida Statutes, that he has “no independent
memory” of signing the document. And he “cannot recollect [his
signature] even after reviewing the document” which he signed
more than five years before he filed the statement in opposition.
Most significantly, actions by the “Quality Countermeasure
Committee” involving the allegedly defective front-brake pressure
could not be ordered, rejected, or modified by Mr. Suzuki. Finally,
Mr. Suzuki stated, again under penalty of perjury, that he “did not
prepare the document, and even what I might have known about
it in 2013 would have been told to me by someone else in the
Corporation. I would have had at that time no personal knowledge
of the details in that document.” (emphasis added.).
To keep this case in context, it must also be noted that
plaintiffs deposed the Suzuki Motor Company’s corporate
representative for three days. It was not until Respondents
amended their response to the petition before us that the court
learned that this extensive discovery was purportedly
unsatisfactory. Even more revealing, the Respondents have failed
to set a single deposition of any member of the Quality
Countermeasure Committee, the sole body with the authority to
decide what measures if any to take regarding the allegedly
defective product part.
To allow this unjustified deposition is to allow Respondents to
disrupt the functions of the Petitioner for no legitimate reason. Mr.
Suzuki is “involved in governmental affairs in various countries
[in which Suzuki] does business including domestically, ongoing
financial matters, exchange rate issues, expanding and enhancing
the multiproduct line of [Suzuki] products domestically and
internationally. Accordingly, he is “chronically busy with
6
important and business management issues as [Suzuki]’s
Chairman, meeting with other [Suzuki] high level executives. . . on
[a] regular basis, meeting with government officials and
representatives from all countries around the world in which
Suzuki does business, regular speaking engagements to industry
and business groups, making public appearances representing
Suzuki, and regular meeting with major corporate stockholders on
the status of Suzuki business.” Thus, if Mr. Suzuki is required to
give testimony in this case, which would obviously result in being
required to give testimony in hundreds of other cases, the
deposition here would “substantially interfere with [his] job
responsibilities as Chairman”.
The trial court’s order allowing this discovery abuse cited no
justification other than “it is appropriate for Plaintiff to be granted
an opportunity to discover from the Chairman, Mr. Suzuki, his
perspective on the contents of the Document and Email.” But in
the face of sworn testimony that Mr. Suzuki has no recollection
and had no authority to affect the decision regarding the recall or
otherwise addressing the allegedly defective product, there can be
only one logical conclusion: the discovery request of the top
corporate chairman of a worldwide company with tens of
thousands of employees who has provided an unrefuted statement
of no involvement in the issue and a recitation of his extensive
corporate leadership responsibilities can only be designed to
harass and attempt to force a settlement to avoid significant
corporate disruption. The trial court’s order is thus a departure
from the essential requirements of law for which Suzuki has no
adequate remedy on appeal. Horne v. School Bd. or Miami-Dade
County,
901 So. 2d 238 (Fla. 1st DCA 2005); Dep’t of Agric. &
Consumer Servs. v. Broward Cty.,
810 So. 2d 1056, 1058 (Fla. 1st
DCA 2002).
In Broward County, this court applied the apex doctrine to
prohibit the deposition of Agriculture Commission Charles
Bronson in a rule-challenge proceeding. We said this:
We agree with the department that the ALJ abused
his discretion in denying the motion for protective order.
In circumstances such as these, the agency head should
not be subject to deposition, over objection, unless and
until the opposing parties have exhausted other discovery
7
and can demonstrate that the agency head is uniquely
able to provide relevant information which cannot be
obtained from other sources. To hold otherwise would, as
argued by the department, subject agency heads to being
deposed in virtually every rule challenge proceeding, to the
detriment of the efficient operation of the agency in
particular and state government as a
whole.
810 So. 2d at 1058 (emphasis added).
We reiterated and reaffirmed the rule in Horne v. School Bd.
or Miami-Dade County,
901 So. 2d 238 (Fla. 1st DCA 2005), when
we applied the apex doctrine to former governmental officials. We
noted that application would help ensure that qualified people do
not seek elevated public positions for fear of post-public
employment discovery entanglements.
In Fla. Office of Ins. Regulation v. Fla. Dept. of Financial
Services,
159 So. 3d 945 (Fla. 1st DCA 2015), this court discussed
the apex doctrine in more detail than in earlier cases and stated:
The concern of setting such a precedent has been the
foundation of this court's reasoning in cases in which it
has precluded the deposition of agency heads. See Univ.
of W. Fla. Bd. of Trustees v. Habegger,
125 So. 3d 323, 325
(Fla. 1st DCA 2013), review denied,
143 So. 3d 918 (Fla.
2014) (“[C]ompelling the deposition of President Bense in
this context could have future widespread ramifications
and subject her to depositions in numerous other
employment disputes.”); Dep't of
Agric., 810 So. 2d at 1058
(“To hold otherwise would, as argued by the department,
subject agency heads to being deposed in virtually every
rule challenge proceeding, to the detriment of the
efficient operation of the agency in particular and state
government as a whole.”). The time spent preparing and
testifying in this case will take away from the Insurance
Commissioner's duties and responsibilities as an agency
head for the state of Florida, and the precedent served by
compelling him to testify will create “a significant
deterrent to qualified candidates seeking public service
positions.”
Horne, 901 So. 2d at 241. To allow an agency
head to give speculative testimony concerning what
8
might have been done with accurate information would
constitute a serious intrusion into the executive branch of
government.
For the foregoing reasons, we find the circuit court's
order compelling the Insurance Commissioner to appear
for a deposition is a departure from the essential
requirements of the law that will cause irreparable harm
that cannot be remedied on appeal. See
Horne, 901 So. 2d
at 240 (“Orders granting discovery requests have
traditionally been reviewed by certiorari because once
discovery is wrongfully granted, the complaining party is
beyond
relief.”).
159 So. 3d at 952–53. This logic is clearly equally applicable in the
corporate context albeit not based on Art. II, section three, Fla.
Const.
To allow meritless discovery depositions of corporate leaders,
who have provided sworn statements that they have no
discoverable knowledge of the issue at hand, or that such
information can be obtained from persons with less corporate
responsibilities, is to allow illegitimate disruption in the private
sector that is forbidden in the public sector. While the separation
of powers certainly compels the application of the apex doctrine in
the public sphere, the rationale of the doctrine is equally applicable
in the private sphere: the courts cannot countenance unjustified
discovery of lead corporate executives for no legitimate reason.
In Florida Office of Insurance Regulation v. Florida
Department of Financial Services, we specifically stated we were
not addressing the issue of whether it applied in the corporate
context: “It is unnecessary for us to address whether the apex
doctrine applies in the corporate context, and we specifically
decline to do so in this
opinion.” 159 So. 3d at 951 n.3. (Our note
that we need not address the question implies that the doctrine
could apply in the corporate context). But we recognized that:
Some state and federal courts refer to this doctrine
as the “apex” doctrine, in the context of both high-ranking
government and corporate officials. See, e.g., State ex rel.
Massachusetts Mut. Life Ins. Co. v. Sanders, 228 W.Va.
749,
724 S.E.2d 353, 363 (2012) (adopting the “apex”
9
doctrine in the corporate context and noting that doctrine
is “analogous to the approach this Court adopted for use
when a party seeks to depose [a] high-ranking
governmental official”); Crown Cent. Petroleum Corp. v.
Garcia,
904 S.W.2d 125 (Tex.1995) (applying the “apex”
doctrine to the deposition of a corporate
officer).
159 So. 3d at 950–51.
Other state and federal courts have applied the apex doctrine
in the corporate context. Sun Capital Partners, Inc. v. Twin City
Fire Ins. Co.,
310 F.R.D. 523, 527-29 (S.D. Fla. 2015) (prohibiting
deposition of corporate co-founders); Alberto v. Toyota Motor Corp.,
796 N.W.2d 490, 497 (Mich. Ct. App. 2010) (prohibiting
depositions of Toyota executives in products-liability case where
executives possessed no more than “generalized knowledge of
Toyota’s unintended acceleration problems”); State ex rel. Mass.
Mut. Life Ins. Co. v. Sanders,
724 S.E.2d 353, 364 (W. Va. 2012)
(cited above); Liberty Mut. Ins. Co. v. Superior Court,
13 Cal. Rptr.
2d 363, 367-68 (Cal. Ct. App. 1992) (adopting apex doctrine and
prohibiting deposition of president of company with no knowledge
of claims). We should apply it now to this case.
Furthermore, whether the rationale for granting certiorari
relief here is labeled the “apex doctrine” or we simply apply
fundamental law applicable to prevent discovery abuse which “is
not reasonably calculated to lead to the discovery of admissible
evidence,” we should grant the writ:
Certiorari is available to review a discovery order
which departs from essential requirements of law and
causes injury that has no adequate remedy in a
subsequent appeal. Banc of Am. Inv. Servs. v. Barnett,
997 So. 2d 1154, 1155 (Fla. 3d DCA 2008). The order
departs from essential requirements of law because
Atlantic Hospitality has not shown that the president's
deposition is “reasonably calculated to lead to the
discovery of admissible evidence” under Florida Rule of
Civil Procedure 1.280. See Granada Ins. Co. v. Ricks,
12
So. 3d 276, 277 n.1 (Fla. 3d DCA 2009). General Star has
shown that its president is a manager, not an adjuster or
10
other employee with personal knowledge of the factual
disputes involved in the lawsuit.
Gen. Star Indem. Co. v. Atl. Hosp. of Fla., LLC,
57 So. 3d 238, 239
(Fla. 3rd DCA 2011). The facts here readily support granting
extraordinary relief, where Respondents have failed to depose any
member of the relevant corporate committee, spent three days
deposing the corporate representative, and have no legitimate
reason to depose Mr. Suzuki, and this will subject him to countless
other illegitimate discovery requests.
As the Third District noted in a very similar case of discovery
abuse:
The injury that cannot be remedied in a subsequent,
plenary appeal is described by General Star's president
in her affidavit:
12. As President and Chief Executive Officer of
General Star Management Company, my
signature appears on every policy issued by
General Star Indemnity Company in the State
of Florida as a standard, pre-printed signature
on all policies.
13. Because of the size and nature of the
insurance business the number of people
insured by General Star, Genesis, and General
Re, the insureds and reinsureds of these entities
are involved in hundreds of lawsuits throughout
the United States. If I were summoned as a
deponent to testify in each of those cases, I
would not have time to fulfill my duties as an
executive officer of Genesis, General Star or
General Re, as I could literally be in depositions
every single day. It would be extremely
disruptive to my responsibilities to any one of
these companies and its policyholders if I were
to give depositions in cases involving individual
insureds, when I was not involved with their
claims or policies, as is the case here.
11
I have not participated in the above-captioned
litigation, or in the underlying insurance claim,
or in the underwriting of the subject policy, and
I am filing this affidavit in support of a motion
for protective order.
This is an obvious but compelling point. The job of the
president of the company is to manage the company, not
to fly around the United States participating in
depositions about policy-related claim disputes of which
the president has no personal knowledge. While the out-
of-pocket costs of such an exercise can be calculated and
shifted if appropriate at the conclusion of the case (or in
a separate sanctions motion), the effect on the company
is much more difficult to measure. If all claimants
demand and obtain the same right, the chief executive
officer manages his or her deposition schedule, not the
company.
57 So. 3d at 239-40 (emphasis added).
Our facts here are almost identical. A chairman of a worldwide
company, involved in hundreds of lawsuits, cannot be subjected to
discovery which is not reasonably calculated to lead to the
admission of relevant evidence where less intrusive means of
obtaining relevant evidence in discovery have not been attempted,
and the consequent disruption of corporate function cannot be
remedied on appeal.
We should grant the writ and order the trial court to grant the
protective order. Therefore, I respectfully dissent.
_____________________________
Raoul G. Cantero of White & Case LLP, Miami, and Larry M. Roth
of Larry M. Roth, P.A., Winter Park, for Petitioner.
Maegen Peek Luka and Celene H. Humphries of Brannock &
Humphries, Tampa, for Respondent.
12
