On August 26, 2021, the Florida Supreme Court, on its own motion, amended Fla. R. Civ. P. 1.280 to codify the Apex Doctrine and to extend its protections to the private sphere. See Corrected Opinion. New Rule 1.280(h) became effective immediately upon the issuance of the opinion, and it applies in pending cases. New Rule 1.280(h) reads as follows:
(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.
Key Take Aways:
- The Apex Doctrine applies equally to both private and government high-level officers.
- The Apex Doctrine applies to both current and former high-level government or corporate officers.
- The person or party resisting a deposition has two burdens: (1) the burden to persuade the court that the would-be deponent meets the high-level officer requirement; and (2) the 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 the foregoing two 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 inadequate, and that the officer has unique, personal knowledge of discoverable information.
- The threshold issue in every case involving the Apex Doctrine is whether the would-be deponent is, in fact, a “current or former high-level government or corporate officer.” When this threshold issue is disputed, the burden is no the person or party resisting the deposition to persuade the court that this requirement is satisfied.
- The Florida Supreme Court did not think it feasible or desirable to codify a definition of “high-level government or corporate officer,” as there is a rich body of case law apply the term. 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. The case law in this area treats as synonymous the terms officer, official, and executive. “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.
- Requiring an affidavit or declaration disclaiming unique, personal knowledge of relevant facts is essential to the proper function of the Apex Doctrine and is explicitly required in New Rule 1.280(h). The officer must explain that he or she lacks unique, personal knowledge of the issues being litigated. Bald assertions of ignorance will not do.
- New Rule 1.280(h) stands on its own, and is an alternative to Rule 1.280(c). New Rule 1.280(h) is for use in the limited context of depositions of high-level government and corporate officers. New Rule 1.280(h) is not governed by the “good cause” standard of Rule 1.280(c), and 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 requirements of New Rule 1.280(h), or who choose not to try to, remain free to seek relief under Rule 1.280(c).
Preventing harassment and unduly burdensome discovery has always been at the heart of the Apex Doctrine, and was the catalyst for New Rule 1.280(h). The Florida Supreme Court noted that the federal district courts in Florida have 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. With that said, the Florida Supreme Court made clear that the Apex Doctrine in no way creates a blanket prohibition on the taking of a deposition of a high-ranking corporate official. The point is to balance the competing goals of limiting potential discovery abuse and ensuring litigants’ access to necessary information.