In Re: Amendment to Florida Rule of Civil Procedure 1.280

Supreme Court of Florida
____________
No. SC21-929
____________
IN RE: AMENDMENT TO FLORIDA RULE OF CIVIL PROCEDURE
1.280.
August 26, 2021
MUÑIZ, J.
Many courts apply the “apex doctrine” to protect high-level
corporate officers from the risk of abusive discovery, while still
honoring opposing litigants’ right to depose such persons if
necessary. 1 Florida’s version of the apex doctrine, developed by the
district courts of appeal as a common law gloss on our rules of civil
1. See, e.g., Tierra Blanca Ranch High Country Youth Program
v. Gonzalez, 329 F.R.D. 694, 696 (D.N.M. 2019) (the apex doctrine
“has been applied by a variety of federal district courts nationwide”);
State ex rel. Mass. Mut. Life Ins. Co. v. Sanders, 724 S.E.2d 353,
359-63 (W. Va. 2012) (adopting the apex doctrine and examining
case law from other jurisdictions that have done so). Federal
district courts in Florida apply the doctrine. See, e.g., Office Depot,
Inc. v. Elementum Ltd., No. 9:19-cv-81305, 2020 WL 5506445, at *3
(S.D. Fla. Sep. 14, 2020).
procedure, protects only high-level government officials. 2 On our
own motion, we now amend those rules to codify the apex doctrine
and to extend its protections to the private sphere. 3
I.
We begin with a brief discussion of Suzuki Motor Corp. v.
Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019), the impetus for our
decision to take up the apex doctrine now.
Suzuki came to the First District Court of Appeal on certiorari
review. The issue was whether the trial court had departed from
2. We appreciate that some judges have drawn a distinction
between the apex doctrine (for private sector officers) and the
“agency-head deposition test” (for government officers). See, e.g.,
Miami Dade College v. Allen, 271 So. 3d 1194, 1198 (Fla. 3d DCA
2019) (Miller, J., specially concurring). For simplicity, we will use
the term “apex doctrine” when discussing both contexts, private
and government. See, e.g., City of Huntington v. AmerisourceBergen
Drug Corp., No. 3:17-01362, 2020 WL 3520314, at *2 (S.D. W.Va.
June 29, 2020) (“The ‘apex doctrine’ applies to a specific subset of
deposition notices that demand the appearance of high-level
executives or high-ranking government officials.”); Iain D. Johnston,
Apex Witnesses Claim They Are Too Big to Depose, 41 Litigation 41,
43 (2014) (“Although some courts articulate the tests differently, for
practical purposes, courts apply the apex doctrine and the high-
ranking government official privilege in the same way.”).
3. We have jurisdiction. See art. V, § 2(a), Fla. Const; Fla. R.
Gen. Prac. & Jud. Admin. 2.140(d).
-2-
the essential requirements of law by not invoking the apex doctrine
to prevent the examination of Osamu Suzuki, then his company’s
chairman and former chief executive officer. Id. at 1108. As the
district court correctly noted, a court departs from the essential
requirements of law when it violates a clearly established principle
of law. See Williams v. Oken, 62 So. 3d 1129, 1133 (Fla. 2011).
The district court described “the essence of Florida’s apex
doctrine” as follows:
[A]n 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.
Winckler, 284 So. 3d at 1109 (quoting Dep’t of Agric. & Consumer
Servs. v. Broward Cty., 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002)).
The First District observed that the apex “doctrine is only
clearly established in Florida in the government context, with
respect to high-ranking government officials.” Id. In fact, the
district court added, “no Florida court has adopted the apex
doctrine in the corporate context.” Id. (quoting Fla. Office of Ins.
Regulation v. Fla. Dep’t of Fin. Servs., 159 So. 3d 945, 951 (Fla. 1st
-3-
DCA 2015)). Against that baseline, the district court concluded that
“the trial court did not depart from the essential requirements of the
law by refusing to apply this doctrine to Suzuki Motor Corporation’s
corporate officer.” Id.Judge Thomas dissented. Id. at 1110. He accepted the
premise that Florida courts have not invoked the apex doctrine
outside the government context, but he maintained that “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.” Id. at 1113. Judge
Thomas lamented that the majority’s approach—which found it
determinative that the apex doctrine was not “clearly established” in
the corporate context—would prevent Florida’s appellate courts
from ever extending the apex doctrine to that context in the first
instance. Id. at 1110.
Notwithstanding the Suzuki panel’s split on the merits, it
unanimously certified to this Court the question: “Does 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?” Id. at 1115. We initially granted Suzuki’s
-4-
petition to review the First District’s decision. But in an order
issued concurrently with this opinion, we have exercised our
discretion to discharge jurisdiction in the case.
II.
Unconstrained by the limited scope of certiorari review, this
rules case allows us to determine whether to adopt the apex
doctrine in the corporate context. Our approach to this question is
framed by three considerations. First, as reflected in Florida Rule of
Civil Procedure 1.280(b) (Scope of Discovery), our rules generally
take a permissive approach to the availability of discovery. Second,
as reflected in Florida Rule of Civil Procedure 1.280(c) (Protective
Orders), our rules’ generally liberal orientation toward discovery is
checked by the availability of protective orders “to protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense.” And third, rather than limit high-level
government officers to the generic protection of rule 1.280(c),
district courts in Florida for decades have enforced the apex
doctrine in the government context.
Preventing harassment and unduly burdensome discovery has
always been at the heart of that doctrine in our state. The First
-5-
District invoked that rationale in Florida’s seminal apex doctrine
case, Department of Agriculture & Consumer Services v. Broward
County, 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002). There, the
court observed that withholding the doctrine’s protections would
“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.” Id.Similarly, in a case applying the apex doctrine for the benefit of a
state university president, the First District warned that
“compelling the deposition of President Bense in this context could
have future widespread ramifications and subject her to deposition
in numerous other employment disputes.” Univ. of W. Fla. Bd. of
Trustees v. Habegger, 125 So. 3d 323, 325 (Fla. 1st DCA 2013).
Over the years, varied government officers in Florida have benefited
from the apex doctrine.
We think that the efficiency and anti-harassment principles
animating that doctrine are equally compelling in the private
sphere. “Virtually every court that has addressed deposition
notices directed at an official at the highest level or ‘apex’ of
corporate management has observed that such discovery creates a
-6-
tremendous potential for abuse or harassment.” Celerity, Inc. v.
Ultra Clean Holding, Inc., No. C 05-4374, 2007 WL 205067, at *3
(N.D. Cal. Jan. 25, 2007). Federal district courts in Florida have
similarly commented that, “by virtue of their position,” apex officials
“are vulnerable to numerous, repetitive, harassing, and abusive
depositions, and therefore need some measure of protection from
the courts.” Brown v. Branch Banking & Trust Co., No. 13-81192-
CIV, 2014 WL 235455, at *2 (S.D. Fla. Jan. 22, 2014) (cleaned up).
We see no good reason to withhold from private officers the same
protection that Florida courts have long afforded government
officers.
Like other courts that have adopted the apex doctrine in the
corporate context, we emphasize that the doctrine “in no way
creates a blanket prohibition on the taking of a deposition of a high-
ranking corporate official.” Sanders, 724 S.E.2d at 364. The point
of the apex doctrine is 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 officials while still
providing a [party] with several less-intrusive mechanisms to obtain
-7-
the necessary discovery, and allowing for the possibility of
conducting the high-level deposition if warranted.” Liberty Mut. Ins.
Co. v. Superior Ct., 13 Cal. Rptr. 2d 363, 367-68 (Cal. Ct. App.
1992).
III.
We are persuaded 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 4 and to define and explain the apex
doctrine as clearly as possible.
The new Florida Rule of Civil Procedure 1.280(h) (Apex
Doctrine) that we adopt today is as follows:
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
4. Of course, we recognize that certain privileges or
constitutional principles might be applicable in one context and not
the other.
-8-
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.
We now explain key aspects of the rule.
“Current or former high-level government or corporate officer.” A
threshold issue in every case involving the rule is whether the
would-be deponent is, in fact, a “current or former high-level
government or corporate officer.” When that person’s “high-level”
status is disputed, the burden is on the person or party resisting
the deposition to persuade the court that this requirement is
satisfied. Of course, if the requirement is not satisfied, the would-
be deponent cannot claim the benefit of the rule.
We do not think it is feasible or desirable to codify a definition
of “high-level government or corporate officer.” Courts have
enforced the apex doctrine in the government and private contexts
for decades, and there is a rich body of case law applying the term.
In cases that are on the margin, the proper application of the term
should be discerned the same way one interprets any other
-9-
undefined term in a statute or rule—according to how a reasonable,
fully informed reader would understand the term, in context. Given
that the new rule codifies a doctrine of long legal standing, a proper
interpretation of the term will necessarily consider how courts have
traditionally used the term, together with the well-established
purposes of the apex doctrine. And the typical reader’s familiarity
with those materials will be assumed. Cf. Felix Frankfurter, Some
Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 536
(1947) (“If [words] are addressed to specialists, they must be read by
judges with the minds of the specialists.”).
Where courts apply the apex doctrine at all, they generally
extend the protections of the doctrine to former high-level officers.
See Horne v. Sch. Bd. of Miami-Dade Cnty., 901 So. 2d 238, 241
(Fla. 1st DCA 2005) (holding in the government context that the
apex doctrine “is equally applicable to former agency heads and
high-ranking officials in circumstances such as these involving past
official conduct”); Palmisano v. Paragon 28, Inc., No. 21-60447-CIV,
2021 WL 1686948, at *3 (S.D. Fla. 2021) (“Palmisano is Wright’s
former CEO. His deposition, therefore, is subject to the apex
doctrine.”); Fed. Deposit Ins. Corp. v. Galan-Alvarez, No. 1:15-mc-
- 10 -
00752, 2015 WL 5602342, at *4 (D.D.C. Sept. 4, 2015) (“The apex
doctrine is no less applicable to former officials than to current
officials.”). To avoid any doubt, the rule explicitly covers former
officers.
Finally, we note that the rule—consistent with the case law—
uses the term “officer” in the generic sense of “[o]ne who holds an
office of authority or trust in an organization, such as a corporation
or government.” American Heritage Dictionary 1223 (5th ed. 2011).
The case law in this area treats as synonymous the terms officer,
official, and executive. In the apex doctrine context, “high-level
officer” status depends on the organization and the would-be
deponent’s role in it, not on whether the person is an “officer” in a
legal sense.
Affidavit or declaration and its contents. Courts applying the
apex doctrine in the corporate context have typically required the
person resisting deposition to produce an affidavit disclaiming
unique, personal knowledge of relevant facts. By contrast, Florida
courts applying the doctrine in the government context have not
always required such an affidavit. See Allen, 271 So. 3d at 1199
(Miller, J., specially concurring). We think that requiring an
- 11 -
affidavit or declaration is essential to the proper functioning of the
rule in both contexts, and so we have made the requirement explicit
in the rule.
We emphasize the rule’s requirement that the officer “explain”
that he or she lacks unique, personal knowledge of the issues being
litigated. Bald assertions of ignorance will not do. A sufficient
explanation will show the relationship between the officer’s position
and the facts at issue in the litigation. The point is for the court—
and the other side—to be able to evaluate the facial plausibility of
the officer’s claimed lack of unique, personal knowledge.
The parties’ burdens. Under the rule, the person or party
resisting a deposition has two burdens: a burden to persuade the
court that the would-be deponent meets the high-level officer
requirement, and a burden to produce an affidavit or declaration
explaining the official’s lack of unique, personal knowledge of the
issues being litigated. If the resisting person or party satisfies those
burdens, and the deposition-seeker still wants to depose the high-
level officer, the deposition-seeker bears the burden to persuade the
court that it has exhausted other discovery, that such discovery is
- 12 -
inadequate, and that the officer has unique, personal knowledge of
discoverable information.
The rule’s approach to the parties’ respective burdens is
consistent with how Florida courts have applied the apex doctrine
in the government context. See, e.g., Univ. of W. Fla. Bd. of Trs. v.
Habegger, 125 So. 3d 323, 325 (Fla. 1st DCA 2013) (placing
ultimate burden of persuasion on the deposition-seeker). And
although courts nationally are not entirely consistent in their
allocation of the parties’ burdens, 5 the rule’s approach is common
in the case law. See, e.g., Shenzhen Kinwong Elec. Co. v. Kukreja,
No. 18-61550, 2019 WL 8298217, at *1 (S.D. Fla. Dec. 12, 2019)
(party seeking apex deposition has burden to establish unique
knowledge and exhaustion of other discovery); Sanders, 724 S.E.2d
at 364 (“[T]he circuit court should first determine whether the party
seeking the deposition has demonstrated that the official has any
unique or superior personal knowledge of discoverable
information.”); Affinity Labs of Texas v. Apple, Inc., No. C 09-
5. See Johnston, supra, note 2, at 44 (“[W]hen it comes to
determining which party bears the burden on the issue of deposing
apex witnesses, decisions are all over the place.”).
- 13 -
4436CW, 2011 WL 1753982, at *15 (N.D. Cal. May 9, 2011)
(“[P]arties seeking to depose a high ranking corporate officer must
first establish that the executive (1) has unique, non-repetitive,
firsthand knowledge of the facts at issue in the case, and (2) that
other less intrusive means of discovery, such as interrogatories and
depositions of other employees, have been exhausted without
success.”).
Relationship to rule 1.280(c). The rule we adopt today stands
on its own. New rule 1.280(h) is an alternative to rule 1.280(c) for
use in the limited context of depositions of high-level government
and corporate officers. The new rule is not governed by the “good
cause” standard of rule 1.280(c), and it imposes burdens of
production and persuasion that are distinct from the burdens at
play in rule 1.280(c). Government and corporate officers who
cannot meet the new rule’s requirements, or who choose not to try
to, remain free to seek relief under rule 1.280(c).
IV.
We amend Florida Rule of Civil Procedure 1.280 as reflected in
the appendix to this opinion. New language is indicated by
underscoring. The amendment shall become effective immediately
- 14 -
upon the issuance of this opinion, and it applies in pending cases.
Where appropriate, courts should exercise their discretion to allow
parties a reasonable opportunity to convert a pending motion for
protective order under rule 1.280(c) to a motion under new rule
1.280(h).
Because the amendment was not published for comment
previously, interested persons shall have seventy-five days from the
date of this opinion in which to file comments with the Court.6
It is so ordered.
CANADY, C.J., and POLSTON, LAWSON, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., dissents with an opinion.
6. All comments must be filed with the Court on or before
November 9, 2021, as well as a separate request for oral argument
if the person filing the comment wishes to participate in oral
argument, which may be scheduled in this case. If filed by an
attorney in good standing with The Florida Bar, the comment must
be electronically filed via the Florida Courts E-Filing Portal (Portal)
in accordance with In re Electronic Filing in the Supreme Court of
Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No.
AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not
licensed to practice in Florida, the comment may be, but is not
required to be, filed via the Portal. Any person unable to submit a
comment electronically must mail or hand-deliver the originally
signed comment to the Florida Supreme Court, Office of the Clerk,
500 South Duval Street, Tallahassee, Florida 32399-1927; no
additional copies are required or will be accepted.
- 15 -
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THIS AMENDMENT.
LABARGA, J., dissenting.
Today, on its own motion, effective immediately, and with the
ease of a rule amendment, the majority abandons Florida’s long-
standing refusal of affording special discovery protections to top-
level corporate decision-makers. I respectfully dissent.
Rule 1.280, Florida Rules of Civil Procedure, sets forth
“General Provisions Governing Discovery.” The new rule adopted by
the majority, rule 1.280(h) (“Apex Doctrine”), provides that “a
current or former high-level government or corporate officer” may
not be subjected to a 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.” Majority op. at
8-9. The corporate officer may seek such protection by filing a
motion for protective order and attaching an affidavit or declaration
explaining that the officer lacks such unique and personal
knowledge of the issues being litigated. Majority op. at 8.
- 16 -
The majority’s reasoning for the change is principally
predicated upon the potential for abusive discovery tactics against
an official at the highest level or “apex” of corporate management:
“Virtually every court that has addressed deposition notices
directed at an official at the highest level or ‘apex’ of corporate
management has observed that such discovery creates a
tremendous potential for abuse or harassment.” Majority op. at 6-7
(quoting Celerity, Inc. v. Ultra Clean Holding, Inc., No. C 05-4374,
2007 WL 205067, at *3 (N.D. Cal. Jan. 25, 2007)).
“Federal district courts in Florida have similarly commented
that, ‘by virtue of their position,’ apex officials ‘are vulnerable to
numerous, repetitive, harassing, and abusive depositions, and
therefore need some measure of protection from the courts.’ ”
Majority op. at 7 (quoting Brown v. Branch Banking & Trust Co.,
No. 13-81192-CIV, 2014 WL 235455, at *2 (S.D. Fla. Jan. 22,
2014).
However, as discussed below, the existing discovery framework
contained in the Florida Rules of Civil Procedure adequately affords
trial judges with the necessary authority and tools to deal with any
- 17 -
potential abuse or harassment, thus rendering the new rule
adopted here today unnecessary.
Any discussion of Florida’s discovery process must begin with
the recognition that the Florida Rules of Civil Procedure afford
parties in litigation with broad discovery tools. “Our rules of civil
procedure broadly allow parties to obtain discovery of ‘any matter,
not privileged, that is relevant to the subject matter of the pending
action,’ whether the discovery would be admissible at trial, or is
merely ‘reasonably calculated to lead to the discovery of admissible
evidence.’ ” Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 995 (Fla.
1999) (quoting Fla. R. Civ. P. 1.280(b)(1)).
Rule 1.280(a), for instance, provides that “[p]arties may obtain
discovery by one or more of the following methods: deposition upon
oral examination or written questions; written interrogatories;
production of documents or things or permission to enter upon land
or other property for inspection and other purposes; physical and
mental examinations; and requests for admission.” Moreover, rule
1.280(a) further provides that unless the court orders otherwise, or
except as provided by the rules, “the frequency of use of these
methods is not limited.”
- 18 -
Thus, the goal of our discovery rules is to expand access to
information that is “relevant to the subject matter of the pending
action,” not to diminish it. Fla. R. Civ. P. 1.280(b)(1).
The discovery process, however, is not without limitations.
Rule 1.280(c) authorizes the trial court, for good cause shown, to
enter any order to protect a party or person from “annoyance,
embarrassment, oppression, or undue burden or expense that justice
requires.” (Emphasis added.) Rule 1.280(c) further authorizes the
trial court to impose terms and conditions on discovery, including:
(1) that the discovery not be had; (2) that the discovery
may be had only on specified terms and conditions,
including a designation of the time or place; (3) that
the discovery may be had only by a method of
discovery other than that selected by the party seeking
discovery; (4) that certain matters not be inquired into;
or that the scope of the discovery be limited to certain
matters; (5) that discovery be conducted with no one
present except persons designated by the court;
(6) that a deposition after being sealed be opened only
by order of the court; (7) that a trade secret or other
confidential research, development, or commercial
information not be disclosed or be disclosed only in a
designated way; and (8) that the parties
simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed
by the court.
Thus, Florida’s existing discovery framework provides trial
courts with the necessary tools to address abusive discovery
- 19 -
practices, ranging from mandating the method of discovery to be
used, to prohibiting the discovery from occurring in the first place.
Rule 1.280(c) even provides for the award of expenses incurred in
relation to the motion for protective order. Accordingly, there is no
need for the special discovery protection afforded to top-level
corporate officers by the majority’s new rule. The protection, if
needed, is available in Florida’s existing rules of civil procedure.
The majority also contends that the application of the apex
doctrine to top-level corporate decision-makers will make the
discovery process more efficient. I disagree. The majority correctly
acknowledges that a threshold issue in every case involving the new
rule will be “whether the would-be deponent is, in fact, a ‘current or
former high-level government or corporate officer.’ ” Majority op. at
9. According to the majority, “[w]hen that person’s ‘high-level’
status is disputed, the burden is on the person or party resisting
the deposition to persuade the court that this requirement is
satisfied.” Majority op. at 9.
Despite the potential difficulties of determining whether the
would-be deponent is or was a “high-level” corporate officer, the
- 20 -
majority gave any attempt to codify a helpful definition a pass.
Instead, the majority offers the following:
We do not think it is feasible or desirable to codify a
definition of “high-level government or corporate officer.”
Courts have enforced the apex doctrine in the
government and private contexts for decades, and there
is a rich body of case law applying the term. In cases
that are on the margin, the proper application of the term
should be discerned the same way one interprets any
other undefined term in a statute or rule—according to
how a reasonable, fully informed reader would
understand the term, in context. Given that the new rule
codifies a doctrine of long legal standing, a proper
interpretation of the term will necessarily consider how
courts have traditionally used the term, together with the
well-established purposes of the apex doctrine. And the
typical reader’s familiarity with those materials will be
assumed.
Majority op. at 9-10.
Thus, once it is determined, after what could amount to
substantial, expensive, and lengthy litigation, that the would-be
deponent is indeed a current or former high-level corporate officer,
the next question will be whether that person is the officer who has
the unique or personal knowledge of discoverable information. The
potential for abuse, gamesmanship, expense, and delay that can be
reasonably anticipated from this process clearly outweighs any
benefits expected to be derived from the new rule adopted by the
- 21 -
majority here today. This is especially the case when the
protections the new rule espouses already exist in the rules of
procedure.
Tellingly, in adopting the apex doctrine, Florida joins only four
states that have adopted the doctrine: California, Michigan, West
Virginia, and Texas. The remaining forty-six states have not
adopted the doctrine, and courts in at least five states—Oklahoma,
Missouri, Colorado, Connecticut, and North Carolina—have
expressly rejected it. See Crest Infinity, II, LP v. Swinton, 174 P. 3d
996, 1004 (Okla. 2007); State ex rel. Ford Motor Co. v. Messina, 71
S.W.3d 602, 607 (Mo. 2002) (“This Court declines to adopt an ‘apex’
rule. Instead, depositions of top-level decision-makers should
proceed in accordance with Rules 56.01(b)(1) and 56.01(c).”);
BlueMountain Credit Alternatives Master Fund L.P. v. Regal Ent.
Grp., 465 P.3d 122, 131 (Colo. Ct. App. 2020) (“[A] growing number
of state courts, including those whose rules of civil procedure, like
ours, are modeled on the federal rules, have rejected it.”); Duke
Energy Carolinas, LLC v. AG Ins. SA/NV, No. 17 CVS 5594, 2019 WL
6699461, at *4 (N.C. Super. Ct. Dec. 6, 2019); Netscout Sys., Inc. v.
Gartner, Inc., FSTCV 1460229885, 2016 WL 5339454, at *6 (Conn.
- 22 -
Super. Ct. Aug. 22, 2016) (“[I]t seems clear that the rule is
incompatible with Connecticut law to the extent it shifts the burden
of showing good cause to the proponent of the deposition.”).
Four of the five states that have rejected the apex doctrine
have discovery rules which, with language that is nearly identical to
Florida’s rule 1.280, provide a discovery framework for dealing with
abusive discovery tactics. Given that framework, these states found
it unnecessary to provide high-level corporate officers with any
further special discovery protection—as should the State of Florida.
I respectfully dissent.
Original Proceeding – Florida Rules of Civil Procedure
- 23 -
APPENDIX
Rule 1.280 General Provisions Governing Discovery
(a) – (g) [No Change]
(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.
Committee Notes
[No Change]
Court Commentary
[No Change]
- 24 -