Florida Supreme Court Adopts Apex Doctrine Protecting Company Executives From Depositions in Many Cases
By: C. Ryan Maloney, Esq. & Maxwell Salain, JD Candidate
Jimerson Birr
In a recent decision, the Florida Supreme Court officially adopted and codified the apex doctrine in the context of corporations for lawsuits in Florida, effective August 26, 2021. See In re: Amendment to Florida Rule of Civil Procedure 1.280, No. SC21-929 (Fla. 2021). This important decision offers a key additional potential protection for Florida companies, as it limits the ability of opposing litigants to take the deposition of high-level company personnel except for in certain limited circumstances, and thereby greatly reduces the potential for such depositions to be used for purposes of harassment or to create settlement leverage.
What is the Apex Doctrine?
The apex doctrine is a protection designed to prevent the harassment of high-level officers in both the public and private sector. The apex doctrine limits when a high-level officer of a company can be deposed to certain limited circumstances. The apex doctrine has been recognized by courts under the Federal Rules of Civil Procedure for several decades. Federal courts consider two factors when determining whether or not to allow an apex deposition. The courts consider, whether the officer has unique first-hand, non-repetitive knowledge of the facts at issue and whether the party seeking the deposition has exhausted other less intrusive methods. See Apple Inc. v. Samsung Electronics Co., Ltd, 282 F.R.D. 259 (N.D. Cal. 2012). This helps prevent harassment of company officers.
Added Protection from Harassment of High-Level Executives for Corporations in Florida
Prior to the recent Florida Supreme Court decision, the apex doctrine in Florida was only expressly applicable to high-level government officials. Additionally, high-level officers in companies were afforded very little statutory protection from harassing depositions, as the then existing rules essentially allowed for discovery of any matter that is not privileged. The recent ruling has expanded and codified into the Florida Rules of Civil Procedure the apex doctrine to also include high-level company officers. Under this newly codified Florida Rule of Civil Procedure, 1.280(h), a party seeking such a deposition of a high-level government or corporate officer must be able to show: (1) the high-level officer has unique, personal knowledge of the topic; and (2) that it has exhausted other avenues of discovery. The new Rule offers a key potential protection to corporations in Florida, and includes both current and past high-level officers.
Under the new apex doctrine Rule, a high-level government or corporate officer potentially subject to a deposition can seek a protective order from the court to prevent the deposition. The high-level officer has the initial burden to:
1. Demonstrate that they are a high-level corporate officer; and
2. Submit an affidavit or declaration of the officer “explaining that the officer lacks unique, personal knowledge of the issues being litigated.”
Fla. R. Civ. P. 1.280(h).
When the officer meets this burden, they are protected from being deposed unless the party seeking the deposition can demonstrate the necessity of the deposition by meeting its burden to prove (1) the high-level officer has unique, personal knowledge of the topic; and (2) that it has exhausted other avenues of discovery. This will likely be a difficult showing to make unless the high-level officer was actually personally involved in the dispute at issue in the lawsuit.
Interestingly, the Florida Supreme Court declined to incorporate a definition of “high-level government or corporate officer” into the statute. Instead, the Court deferred to the “rich body of case law applying the term.” Id. at 9. The Court did however go on to note that the “high-level officer” status should not be tied to whether the individual is an “officer” of the company from a legal standpoint. Rather, the would-be deponent’s position and roles within the company along with the status and structure of the company itself, are important. Id. at 12.
Additionally, in an added protection for Florida corporations, the adoption of the apex doctrine took effect immediately upon the Court’s issuance of its opinion on August 26, 2021. Further, the protection extends to currently pending cases as well as cases filed after the new Rule. Id. at 8. This is good news for Florida companies because it codifies the apex doctrine and greatly increases the odds that these high-level officers will be protected from being deposed in both ongoing and future cases.
Conclusion
The Florida Supreme Court’s adoption of the apex doctrine into the Florida Rules of Civil Procedure is an important change in Florida civil procedure that should help corporations in Florida avoid undue harassment and oppression of high-level officers through unnecessary depositions in many instances.