Cotney Newsletter

FLORIDA EXPANDS APEX DOCTRINE TO OFFER NEW PROTECTIONS FROM DEPOSITION FOR BOTH PRIVATE SECTOR AND PUBLIC SECTOR HIGH-RANKING OFFICIALS

On August 26, 2021, the Florida Supreme Court, on its own motion, amended the Florida Rules of Civil Procedure to expand Florida’s version of the “apex doctrine.” Effective immediately, Florida’s “apex doctrine,” as set forth in newly-enacted Rule 1.280(h) of the Florida Rules of Civil Procedure, now offers additional protection from depositions for high-level officials in both the public sector and the private sector. The purpose of the doctrine is to prevent abuse or harassment of “high-level” officials through numerous or unnecessary depositions.

Before the rule change, Florida’s apex doctrine provided protection from deposition to only high-level government officials. Specifically, under Florida’s existing common-law apex doctrine, a public sector high-level official could not be compelled to sit for deposition unless the would-be deposing party first exhausted other discovery methods and demonstrated that the official would be able to provide unique information that is unobtainable from other sources.

Newly-enacted Rule 1.280(h) offers “current or former high-level government or corporate officers” additional protection from deposition. When enacting this new rule, the Court reasoned that “the efficiency and anti-harassment principles animating [the apex] doctrine are equally compelling in the private sphere,” and that there is “no good reason to withhold from private officers the same protection that Florida courts have long afforded government officials.”

Florida becomes only the fifth state to expressly adopt the apex doctrine, joining California, Michigan, West Virginia, and Texas. Florida’s rule-based apex doctrine bears some unique features that are worth noting.

The Parties’ Burdens

To invoke Rule 1.280(h)’s apex doctrine, the party resisting deposition must satisfy the initial burden by showing both that: (1) the person to be deposed is a “high-level officer,” and (2) such person lacks unique, personal knowledge of the issues in litigation.

To carry its burden on the second issue, the resisting party must submit an affidavit from the person to be deposed attesting to that person’s lack of “unique, personal knowledge of the issues being litigated.” The would-be deponent must “explain” the relationship between the officer’s position and the facts being litigated. Presumably, the party’s affidavit would also include an explanation of why that relationship (or lack thereof) creates a lack of such

information on the part of the official opposing the deposition. “Bald assertions of ignorance will not do.”

If the resisting party meets its initial burden, the burden shifts to the “deposition-seeker” to persuade the Court that it has “exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information.”

What Is A “High-Level” Officer?

The Court opted against specifically explaining what makes an officer “high-level,” and instead noted that “there is a rich body of case law applying the term,” based on prior apex-doctrine cases. The Court noted that it used the term “officer” in the generic sense as “one who holds an office of authority or trust in an organization, such as a corporation or government.” The Court noted that the term “officer” is not restricted to only the legally-appointed officers of an organization. Rather, whether an individual is an “officer” depends on the officer’s organization and role within that organization.

Relationship to Existing Rules

The Court noted the new Rule 1.280(h) “stands on its own” as an alternative to, and not a substitute for, protection under Rule 1.280(c). Notably, the new apex doctrine rule is not governed by the “good cause” standard of Rule 1.280(c), and includes different “burdens of production and persuasion that are distinct from the burdens at play in Rule 1.280(c).” There is no either/or relationship between the new Rule 1.280(h)-based apex doctrine and the existing common law apex doctrine flowing from the pre-amendment Florida Rules of Civil Procedure; nothing prevents those who cannot meet the requirements of one from seeking relief under the other.

Conclusion

It remains to be seen what impact this new rule will have on Florida litigation. However, this rule change undoubtedly provides private-sector officials with a new tool to help avoid burdensome depositions. Those wondering whether they may use the new rule change to invoke the apex doctrine and avoid a deposition should not hesitate to consult legal counsel. An experienced attorney can review the circumstances and provide guidance on whether the official in question meets the new rule’s requirements to avoid a deposition.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.