In Re: Amendment to Florida Rule of Civil Procedure 1.280

Citation: Not availableDocket: SC21-929

Court: Supreme Court of Florida; August 26, 2021; Florida; State Supreme Court

Original Court Document: View Document

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The Supreme Court of Florida has amended Florida Rule of Civil Procedure 1.280 to codify the apex doctrine, which previously protected only high-level government officials from abusive discovery practices. This decision was influenced by the case Suzuki Motor Corp. v. Winckler, where the First District Court of Appeal reviewed whether a trial court erred by not applying the apex doctrine to depose Osamu Suzuki, a corporate officer. The district court noted that the apex doctrine is well-established in the government context but has not been adopted for corporate officers. Judge Thomas dissented, arguing that the rationale for protecting executives from unjustified discovery is applicable in the private sector as well. The court recognized the issue raised by the First District regarding the application of the apex doctrine in corporate settings and used this rule amendment as an opportunity to extend its protections. The court's decision was guided by three considerations: the permissive nature of discovery under Rule 1.280(b), the availability of protective orders under Rule 1.280(c) to mitigate undue burdens, and the historical enforcement of the apex doctrine for government officials by district courts.

Preventing harassment and excessive discovery has been central to the apex doctrine in Florida. The First District highlighted these principles in the case Department of Agriculture, Consumer Services v. Broward County, emphasizing that without such protections, agency heads could face frequent depositions, hindering efficient governmental operations. Similarly, in a case involving a state university president, the court cautioned that compelling depositions could lead to broader implications across employment disputes. The apex doctrine has historically benefited various government officials in Florida, and its rationale is deemed equally applicable in the private sector, given the potential for abuse in depositions of high-ranking corporate officials. Courts have recognized that apex officials are susceptible to repetitive and harassing depositions, necessitating protective measures.

The apex doctrine does not impose a blanket prohibition on high-level depositions; rather, it aims to balance the need to limit discovery abuse with the litigants' rights to access information. When properly applied, it prevents undue harassment of senior officials while allowing alternative discovery methods. The new Florida Rule of Civil Procedure 1.280(h) codifies the apex doctrine for both private and government officers, allowing them to seek orders to prevent depositions. To do so, the officer must provide an affidavit indicating a lack of unique, personal knowledge of the litigation issues. If successful, the court will issue a protective order unless the requesting party proves that other discovery methods have been exhausted and that the officer possesses unique knowledge relevant to the case. The burden to prove the officer's high-level status lies with the party opposing the deposition. The document concludes with a summary of critical aspects of the new rule.

A key issue in depositions involving the apex doctrine is determining whether the individual in question is a "current or former high-level government or corporate officer." If this status is contested, the burden lies with the party opposing the deposition to convince the court of the individual's high-level status; if this requirement is unmet, the individual cannot invoke the protections of the rule. The term "high-level officer" is not formally defined, but its interpretation should align with established case law and the doctrine's historical application, which extends protections to former officials as well. The rule specifies that "officer" generically refers to anyone in a position of authority in an organization, with the status depending on their role rather than strict legal definitions.

In the corporate context, courts typically require the opposing party to provide an affidavit stating the deponent lacks unique, personal knowledge of the relevant facts. Conversely, Florida courts in the government context have not always mandated such affidavits. The new rule emphasizes the necessity of an affidavit or declaration in both contexts, requiring the officer to adequately explain their lack of unique knowledge, beyond mere assertions. This explanation must demonstrate the connection between the officer’s position and the litigation issues, enabling the court and opposing party to assess the plausibility of the claim.

The resisting party has two burdens: to prove the deponent's high-level status and to submit an affidavit explaining the lack of unique knowledge. If these burdens are met, the party seeking the deposition must then demonstrate that other discovery efforts have been exhausted, are insufficient, and that the officer possesses unique, personal knowledge. This allocation of burdens aligns with Florida's application of the apex doctrine, placing the ultimate burden on the deposition-seeker, reflecting a common approach within the broader case law.

The circuit court must first assess whether the party requesting a deposition has shown that the official possesses unique or superior personal knowledge relevant to discoverable information. For high-ranking corporate officers, the requesting party must demonstrate that the officer has non-repetitive, firsthand knowledge of the case's facts and that all less intrusive discovery methods, such as interrogatories and depositions of other employees, have been exhausted. The newly adopted Florida Rule of Civil Procedure 1.280(h) serves as an alternative to rule 1.280(c) specifically for depositions of high-level government and corporate officials. This new rule does not require the "good cause" standard applicable under rule 1.280(c) and imposes different burdens of production and persuasion. Officials unable or unwilling to meet the new requirements may still seek relief under rule 1.280(c). The amendment takes effect immediately and applies to pending cases, allowing courts discretion to convert motions for protective orders under rule 1.280(c) to motions under the new rule. Interested parties have seventy-five days to comment on the amendment, due by November 9, 2021. The dissenting opinion emphasizes a departure from Florida's previous stance on protective measures for top corporate decision-makers, highlighting concerns about potential abuse of discovery tactics against such officials. The new rule mandates that a high-level officer cannot be deposed unless it is shown that other discovery avenues are inadequate and that the officer possesses unique knowledge. Officers can seek protection by filing a motion for a protective order with supporting documentation.

Courts consistently recognize that deposition notices aimed at high-level corporate officials can lead to potential abuse or harassment. However, the existing framework under the Florida Rules of Civil Procedure adequately empowers trial judges to manage such issues, rendering the newly proposed rule unnecessary. The rules allow broad discovery of relevant, non-privileged matters related to the case, utilizing various methods such as depositions, interrogatories, and document production, with no limit on the frequency of use unless specified by the court. While the discovery process is expansive, it includes safeguards; Rule 1.280(c) enables courts to protect parties from annoyance, embarrassment, or undue burden by imposing limitations on discovery methods or scope. Additionally, courts can award expenses related to protective orders. The existing rules sufficiently address concerns for top-level corporate officers, negating the need for special protections. The majority's assertion that applying the apex doctrine will streamline the discovery process is challenged, as each case will require a determination of whether the deponent qualifies as a "high-level" officer, placing the burden on the resisting party without establishing clear definitions for "high-level" status.

The majority opinion expresses skepticism about the feasibility and desirability of codifying a definition for "high-level government or corporate officer." It highlights the potential inefficiencies and costs associated with determining whether a deponent qualifies as such an officer, especially regarding the necessity of proving that the officer possesses unique or personal knowledge relevant to the case. The opinion argues that the risks of abuse and delay from this process outweigh any anticipated benefits from the new rule. It points out that only four states—California, Michigan, West Virginia, and Texas—have adopted the apex doctrine, while at least five states, including Oklahoma and North Carolina, have explicitly rejected it. Consequently, the Court declines to adopt the apex rule, asserting that depositions of top-level decision-makers should follow existing procedural rules, specifically Rules 56.01(b)(1) and 56.01(c). The dissenting view emphasizes that Florida, with procedural rules similar to those of states that have rejected the apex doctrine, does not require additional protections for high-level officers, as existing rules adequately address abusive discovery practices. The excerpt concludes with procedural details regarding the apex doctrine, outlining the conditions under which high-level officers can seek to avoid depositions and the burden of proof required in such motions.