– The Florida Supreme Court formally codified the apex doctrine in August 2021.
– Florida is one of only a few states that have formally adopted the doctrine, including California, Georgia, Michigan, Texas, and West Virginia.
– On February 8, 2024, the Florida Supreme Court denied a request from the Florida Attorney General to reconsider the decision formally adopting the apex doctrine. – The Florida Supreme Court formally adopted the apex doctrine in August 2021.
– Other states that have formally adopted the apex doctrine include California, Georgia, Michigan, Texas, and West Virginia.
– 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.
– The denial solidifies the apex doctrine as a firmly-established principle of law in Florida.
– 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.
– 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.
– An affidavit in support of a motion for protective order must include more than bare-bones statements tracking the language of the Rule. – The Florida Supreme Court amended the Florida Rules of Civil Procedure in August 2021 to include the apex doctrine in the corporate context.
– The amendment was intended to protect high-ranking corporate officers from abusive discovery, while still allowing for necessary depositions.
– Despite concerns raised by the Florida Attorney General and others, the court determined that no further amendments to the Rule were needed in November 2023.
– A motion for rehearing was filed by the Florida Attorney General, arguing that the declaration requirement for high-ranking government officials was a material departure from the historical underpinnings of the apex doctrine.
– The Florida Supreme Court denied rehearing on Feb. 8, 2024, refusing to reconsider the formal adoption of the apex doctrine.
– Florida Rule of Civil Procedure 1.280(h) allows high-level government or corporate officers to seek an order preventing them from being subject to a deposition, with the burden to prove their high-level status lying with the party opposing the deposition.
– The Rule does not provide a specific definition of “high-level,” leaving it open to interpretation based on established case law.
– Three recent appellate decisions have grappled with Rule 1.280(h) and its application to specific circumstances. 1. The trial court in Petro Welt Trading GES.m.b.H. v. Brinkmann was found to not have departed from the law that did not exist at the time of its ruling.
2. The appellate court in Karisma Hotels & Resorts Corp. Ltd. held that an officer’s affidavit must consist of more than a bare-bones statement to be considered sufficient. 1. DecisionHR sued Mills and his subsequent employer for alleged misconduct.
2. Mills sought to depose a director of DecisionHR, but DecisionHR filed a motion for protective order.
3. The director submitted an affidavit stating he was not involved in day-to-day operations and had no unique personal knowledge of the lawsuit.
4. Mills opposed the motion, arguing the director was knowledgeable about a settlement agreement without providing supporting evidence.
5. The trial court denied the motion for protective order, leading DecisionHR to file a petition for certiorari. 1. 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.
2. 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, as whatever transpired around execution of the settlement agreement had little (if anything) to do with DecisionHR’s claims in the instant litigation.
3. 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.
4. 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).
5. 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. – The Florida Supreme Court codified the apex doctrine in 2021, extending its scope to include corporate and government officials.
– Rule 1.280(h) places the burden on high-ranking officials to provide a declaration explaining their lack of unique, personal knowledge to challenge a deposition request.
– The Rule leaves questions about who qualifies as a high-ranking official, the level of detail required in the declaration, and whether it will result in more disruption for high-ranking officials.
– Companies and their legal counsel should be aware of the apex doctrine and Rule 1.280(h) requirements for challenging a deposition of a corporate official. – Florida Rule of Civil Procedure 1.280 was amended on multiple occasions, with Justice Labarga previously advising that the existing discovery framework was adequate and the new rule unnecessary.
– There were several court cases in Florida related to civil procedure, including one from the 2nd District Court of Appeal and another from the 4th District Court of Appeal, addressing various legal issues.
– The information in the alert is intended for general education and knowledge and should not be relied upon as the sole source of information for resolving legal problems. The laws of each jurisdiction are different and constantly changing, and specific legal advice should be sought for individual fact situations.
https://www.hklaw.com/en/insights/publications/2024/02/the-apex-doctrine-in-florida-courts-protecting-corporate
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