Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Late last month, the Florida Supreme Court codified into Florida Rule of Civil Procedure 1.280(h) the “apex doctrine” and declared the doctrine applies with equal force to high-ranking corporate and government officials.
For years, the apex doctrine, rooted in the principle that high-ranking officers (or those at the “apex” of the organization) should not be burdened with a deposition for which a lower-ranking officer is available and knowledgeable, allowed high-level corporate officers in jurisdictions outside Florida state court to shield themselves from deposition. In contrast, in Florida, until August 26, 2021, only certain government officials could avail themselves of the apex doctrine to avoid a deposition.
The adoption of Rule 1.280(h) is good news for corporations facing litigation in the Sunshine State, and provides an alternative means of preventing CEOs and other high-level officers from having to divert their attention from company operations to attend depositions. Effective immediately,1 the Rule provides that a party or current or former high-level government or corporate officer may seek an order preventing a deposition of the officer by:
- Filing a motion with the court seeking protection from deposition; and
- Accompanying the motion with an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated.
Once an officer or party meets this burden of production, the court must issue an order preventing the deposition except where the party seeking the deposition shows that other discovery means have been exhausted, that discovery is inadequate, and that the officer in fact has unique, personal knowledge of the issues. Under the new rule, the burden is on the party opposing the deposition to persuade the court that the officer subject to a deposition notice is high-level and, thus, protected by a deposition under the circumstances set forth in Rule 1.280(h).
Corporate officers who cannot meet the Rule 1.280(h) test (or choose not to do so) remain free to alternatively seek relief under Rule 1.280(c), which has always allowed Florida courts, upon good cause shown, to enter an order protecting a party or person from annoyance, embarrassment, oppression or undue burden or expense.2
Notably, the apex doctrine provides a good reason for high-level officers in corporations, where appropriate, to involve lower level officers in issues concerning the corporation.
If a company is currently facing litigation in Florida and the opposing party has already noticed or is likely to notice one of the company’s corporate officers for deposition, the company should consult with counsel about the possibility of filing a motion under Rule 1.280(h) to prohibit the deposition. Businesses also should ensure that they maintain up-to-date contact information for former high-ranking officers, because they will need to participate in a motion to avoid the deposition by providing an affidavit in support of the Rule 1.280(h) motion.
1 Although the rule is effective immediately, the Florida Supreme Court left open the possibility for comments associated with the new rule, which are due by November 9, 2021.
2 In the dissent, Judge Labarga took the position that the existence of Rule 1.280(c) renders Rule 1.280(h) unnecessary.