High-Level Corporate and Government Officers Alike Can Avoid Depositions Unless Necessary
Florida now offers protection to both high-ranking corporate officers and government officials from litigants’ attempts to conduct their unnecessary depositions. This protection is known as the “apex doctrine.”
Under the apex doctrine, an agency or organization can shield high-level officers—or those at the “apex” of the agency or organization—from depositions for which a lower-level officer or employee is available and knowledgeable. The purpose of the doctrine is to prevent harassing and burdensome discovery tactics in litigation while still ensuring parties’ access to necessary and relevant information.
For years, the apex doctrine in Florida was only applied to high-ranking government officials, but a recent opinion from the Florida Supreme Court expanded the doctrine to include high-ranking corporate officers in the private sector. The Court’s opinion stated, “[w]e think that the efficiency and anti-harassment principles animating that doctrine are equally compelling in the private sphere,” and “[w]e see no good reason to withhold from private officers the same protection that Florida courts have long afforded government officers.”1
In order to claim this protection, if a party seeks to depose a current or former high-level government or corporate officer, the officer or a party can move for a protective order to prevent the deposition from going forward under Florida Rule of Civil Procedure 1.280(h).2 The motion must include the following:
- If the “high-level” status of an officer is disputed, the moving party or officer must demonstrate that the officer meets this requirement. While there is no definition of “high-level government or corporate officer” provided in the Rule, the term “officer” in the Rule is used in the generic sense as “one who holds an office of authority or trust in an organization, such as a corporation or government.”3 Further, the “high-level” status of an officer should not depend on whether someone has the title of “officer” in a legal sense but rather should depend on the organization and the officer’s role in that organization.4
- There must be an affidavit or declaration attached to the motion “explaining that the officer lacks unique, personal knowledge of the issues being litigated.”5 There’s an emphasis here on the explanation, which should describe the relationship between the officer’s position and the facts at issue in the litigation in sufficient detail for the other side and the court to evaluate the credibility of the officer’s claimed lack of unique, personal knowledge.
If the moving party or officer meets their burden, the burden shifts to the party seeking the deposition, and it must show “that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information.”6 If the party seeking the deposition does not make such a showing, the “court shall issue an order preventing the deposition.”7
This recent development is good news for private companies that are currently involved in litigation in the Sunshine State or may be in the future.
If you need a business attorney, give us a call for a free initial consultation. Rabin Kammerer Johnson, P.A. handles many forms of business litigation.
1 In re: Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d 459, 461 (Fla. 2021).
2 Fla. R. Civ. P. 1.280(h).
3 324 So. 3d at 462 (quoting American Heritage Dictionary 1223 (5th ed. 2011)).
5 Fla. R. Civ. P. 1.280(h).