The Apex Doctrine in Florida Courts: Protecting Corporate Officers from Depositions

The apex doctrine generally provides that a high-level corporate officer should not be subject to a deposition unless and until the opposing party has exhausted all other less-intrusive avenues of discovery and can demonstrate that the official has relevant information that cannot be obtained from other sources.

The Florida Supreme Court formally codified the apex doctrine in August 2021, making Florida one of only a few states – along with California, Georgia, Michigan, Texas and West Virginia – that have formally adopted the doctrine. On Feb. 8, 2024, the Florida Supreme Court denied a request from the Florida Attorney General to reconsider the decision formally adopting the apex doctrine.¹

The Florida Supreme Court's denial of the Florida Attorney General's motion for reconsideration solidifies the apex doctrine as a firmly-established principle of law in Florida. Now, more than 2 1/2 years after Florida's initial codification of Florida Rule of Civil Procedure 1.280(h), Florida's courts have had opportunities to interpret and apply the contours of the Rule. Though few published appellate decisions discuss the apex doctrine, those decisions reiterate that a high-level corporate officer seeking to avoid a deposition bears the burden of proof to demonstrate that he or she has no unique, personal knowledge of discoverable information and that an affidavit in support of a motion for protective order must include more than bare-bones statements tracking the language of the Rule.

Background

Prior to August 2021, Florida courts generally only recognized the apex doctrine "in the government context, with respect to high-ranking government officials."² But, in August 2021, the Florida Supreme Court considered for the first time whether the apex doctrine should apply in the corporate context, rather than only in the government context.³

On Aug. 26, 2021, the Florida Supreme Court amended the Florida Rules of Civil Procedure and adopted Rule 1.280(h). The amendment was intended to codify the apex doctrine and expand the doctrine's reach to include both government and private officers.⁴

According to the Florida Supreme Court, the revised Rule was intended to "protect high-level corporate officers from the risk of abusive discovery, while still honoring opposing litigants' right to depose such persons if necessary."⁵

The Florida Supreme Court stated that it intended the approach in the new rule to be consistent with how Florida courts had historically applied the apex doctrine to high-level officials. Yet, the justices declined to provide a specific definition of "high-level," noting that it was not "feasible or desirable" to do so and that courts could rely on decades of case law applying the term.⁶

Following the formal adoption of Rule 1.280(h), law firms, associations, attorneys and the Florida Attorney General submitted comments regarding the changes to the Rule. The Florida Attorney General argued that requiring a high-ranking official to submit an affidavit or declaration first, before the party seeking the deposition demonstrated that their testimony was necessary and unavailable from other sources, would significantly increase the risk of harassment and distraction of the official from his or her duties.⁷ In November 2023, the court considered these comments and determined that no further amendments to the Rule were warranted.⁸

Thereafter, the Florida Attorney General filed a motion for rehearing, contending that the court overlooked or misapprehended the "significant separation of powers concern raised by the declaration requirement."⁹ The Attorney General again stressed that requiring a high-level government official to submit a declaration was a material departure from the historical underpinnings of the apex doctrine to the extent it placed the burden on the government official to disclaim unique, personal knowledge rather than on the party seeking the deposition to show a "special need."¹⁰ According to the Attorney General, the declaration requirement distracts high-ranking officials from their important official duties, since any litigant can seek any high-ranking official's deposition at any time, which could cause senior officials to be subject to a flood of discovery requests.¹¹

On Feb. 8, 2024, the Florida Supreme Court denied rehearing, refusing the request from the Florida Attorney General to reconsider the decision formally adopting the apex doctrine.¹² Justice Jorge Labarga wrote a special concurrence, advising that although he agreed that the standard for rehearing had not been met, he disagreed with the formal adoption of the apex doctrine.¹³

Florida's Apex Doctrine

Florida Rule of Civil Procedure 1.280(h) provides that current or former high-level government or corporate officers may seek an order preventing the officer from being subject to a deposition.¹⁴ The motion must be accompanied by an affidavit or declaration from the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden, the court must issue an order preventing the deposition 1) unless the party seeking the deposition demonstrates that it has exhausted other discovery, 2) that such discovery is inadequate and 3) that the officer has unique, personal knowledge of discoverable information. 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.¹⁵

The Rule leaves open to interpretation whether an officer is "high-level" for purpose of the Rule. In implementing Rule 1.280(h), the Florida Supreme Court stated that it did "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."¹⁶

Three recent appellate decisions have grappled with Rule 1.280(h) and its application to discrete, unique circumstances. These cases are discussed further below.

Trial Court Cannot Depart from Law That Did Not Exist at the Time of Its Ruling

In Petro Welt Trading GES.m.b.H. v. Brinkmann,¹⁷ the petitioner appealed the trial court's denial of a motion for protective order related to a subpoena for a corporate employee. The petitioner claimed that the trial court had departed from the essential requirements of the law by failing to properly apply the apex doctrine to a high-level corporate official who had been subpoenaed for a deposition.¹⁸ At the time of the trial court's decision, Rule 1.280(h) had not yet been adopted, and the apex doctrine did not yet apply in the corporate context. After the petition for writ of certiorari was filed and during the pendency of the appeal, the Florida Supreme Court adopted Rule 1.280(h), codifying the apex doctrine. The petitioner filed a supplemental brief claiming that the subsequent adoption of Rule 1.280(h) could now sufficiently constitute a departure from the essential requirements of the law sufficient to grant the petition for certiorari.¹⁹ The appellate court held that the trial court could not have departed from the law that did not exist at the time of the trial court's ruling.²⁰ The court advised the petitioner that its ruling was without prejudice, and the petitioner was free to file a new motion for protective order under the new Rule.²¹

Officer Affidavits Must Consist of More Than a Bare-Bones Statement

In Karisma Hotels & Resorts Corp. Ltd.,²² the appellate court held that an affidavit merely stating, "I lack unique or personal knowledge of the issues being litigated in this matter," is insufficient as it does not explain specifically how the officer lacks unique, personal knowledge.²³ The court stated that this bare-bones statement amounted to a "bald assertion of ignorance" and therefore affirmed the decision of the trial court compelling the deposition of the corporate officer.²⁴ The Karisma Hotels case demonstrates that the corporate officer bears the burden to demonstrate that they have no unique, personal knowledge and that affidavits from corporate officials may not simply track the language of the Rule, but must specify in depth how an officer lacks unique, personal knowledge.

A Decision Denying a Motion for Protective Order Premised on Rule 1.280(h) May Be Considered on Certiorari Review

In DecisionHR USA, Inc. v. William Mills III,²⁵ the appellate court held that the apex doctrine, as codified by Rule 1.280(h), is a "clearly established principle of law" that entitled the petitioner to seek certiorari review.²⁶

In the underlying lawsuit, DecisionHR sued Mills and Mills' subsequent employer, claiming that Mills persuaded a former DecisionHR employee to divert clients and business opportunities to his subsequent employer and that Mills breached his confidentiality obligations to DecisionHR.²⁷

Mills sought to take the deposition of a director of DecisionHR, who also served as the chairman and CEO of DecisionHR's parent company.²⁸ DecisionHR filed a motion for protective order and submitted an affidavit from the proposed deponent in which he attested that he was not involved in the day-to-day operations of the company, and although he had signed a prior settlement agreement involving Mills, the mediation process was handled by others and that he had no unique personal knowledge of any relevant facts or circumstances underlying the instant lawsuit.²⁹

Mills opposed the motion for protective order, arguing that he had been attempting to depose the deponent before the Supreme Court adopted Rule 1.280(h) and that the deponent was knowledgeable about the settlement agreement. Mills did not provide any affidavit or deposition testimony in support of his arguments. The trial court denied the motion for protective order, and DecisionHR filed a petition for certiorari.

The appellate court concluded that an aggrieved party can seek certiorari review of a nonfinal order denying a motion for protective order to take the deposition of a corporate official because once the discovery is wrongfully granted, the complaining party is beyond relief.³⁰ The court further concluded that the trial court departed from the essential requirements of the law by denying the motion for protective order because the trial court did not address the sufficiency of the deponent's affidavit or analyze whether DecisionHR had made the showing required by Rule 1.280(h).³¹ The trial court erred by wrongly concluding that the deponent was not subject to the Rule because he had "some level of previous interaction" with Mills. It was not sufficient that the deponent had executed a prior settlement agreement with Mills because whatever transpired around execution of the settlement agreement had little (if anything) to do with DecisionHR's claims in the instant litigation. It was also unpersuasive that the deponent had interactions with Mills while Mills was employed by DecisionHR because the instant lawsuit was focused entirely on acts by Mills years after he departed from DecisionHR.³² The court determined that once DecisionHR established that the deponent was an apex official and produced the affidavit explaining his lack of unique, personal knowledge of the issues being litigated, "the trial court was required to issue a protective order" unless Mills demonstrated that he had exhausted other discovery, that such discovery was inadequate and that the deponent had unique, personal knowledge of discoverable information.³³ Mills did not, and could not, show that he exhausted other discovery or that such discovery was inadequate because he had taken no other discovery when he noticed the deponent's apex deposition. For that reason, the trial court departed from the essential requirements of the law.

Conclusion: The Apex Doctrine in Florida

The Florida Supreme Court's codification of the apex doctrine in 2021 was a monumental development, as it extended the scope of the apex doctrine in Florida to include both corporate and government officials, and formalized the requirements for a high-level corporate official to challenge a request for a deposition. The Rule places the initial burden on the high-ranking official to come forward with a declaration explaining that they have no unique, personal knowledge of the issues being litigated, and as subsequent case law has instructed, the declaration must do more than simply parrot the language of the Rule.

Rule 1.280(h) provides a step-by-step framework for corporate officials and their counsel to follow when seeking to avoid a deposition. However, Rule 1.280(h) leaves open several important questions:

• Who qualifies as a high-ranking official sufficient to invoke the contours of the Rule?
• How much detail does a high-ranking official need to include in their declaration such that the apex doctrine will be invoked?
• Because the Rule places the initial burden on the high-ranking official to come forward with a declaration, will the Rule actually result in greater disruption and harassment of high-ranking officials?

Companies in the public and private sector should be aware of the apex doctrine, along with the specific requirements of Rule 1.280(h), so that they can determine whether to challenge a request for a corporate official's deposition. Moreover, lawyers defending companies and their high-ranking officials should be aware of the necessary elements to obtain a protective order, and the requirement that the high-ranking official must submit a declaration, even before the party seeking the deposition demonstrates a substantial need for the testimony.

Notes

¹ See In re Amend. to Fla. Rule of Civ. Proc. 1.280, No. SC21-929 (Fla. Feb. 8, 2024).

² See Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107, 1109 (Fla. 1st DCA 2019).

³ See In re Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d 459, 459 (Fla. 2021).

⁴ See Id. at 461.

⁵ See Id. at 459.

⁶ See Id. at 462.

⁷ See In re Amend. to Fla. Rule of Civ. Proc. 1.280, No. SC21-929 (Fla. Nov. 9, 2021).

⁸ See In re Amend. to Fla. Rule of Civ. Proc. 1.280, No. SC21-929 (Fla. Nov. 2, 2023).

⁹ See In re Amend. to Fla. Rule of Civ. Proc. 1.280, No. SC21-929 (Fla. Nov. 17, 2023).

¹⁰ Id.

¹¹ Id.

¹² See In re Amend. to Fla. Rule of Civ. Proc. 1.280, No. SC21-929 (Fla. Feb. 8, 2024).

¹³ Id. Justice Labarga had previously advised that Florida's existing discovery framework adequately afforded trial judges with the necessary tools and authority to deal with potential abuse or harassment, rendering the new rule unnecessary. See In re Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d at 464-65.

¹⁴ Fla. R. Civ. P. 1.280(h).

¹⁵ Id.

¹⁶ See In re Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d at 462.

¹⁷ 336 So. 3d 881 (Fla. 2d DCA 2022).

¹⁸ See Id. at 882.

¹⁹ See Id. at 883.

²⁰ See Id. at 884.

²¹ See Id. at 884-85.

²² 346 So. 3d 59 (Fla. 4th DCA 2022).

²³ See Id. at 59.

²⁴ See Id.

²⁵ 341 So. 3d 448 (Fla. 2d DCA 2022).

²⁶ See Id. at 453.

²⁷ See Id. at 455-56.

²⁸ See Id. at 450.

²⁹ See Id. at 456.

³⁰ See Id. at 452.

³¹ See Id. at 454.

³² See Id. at 456.

³³ See Fla. R. Civ. P. 1.280(h).

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