On August 26, 2021 the Supreme Court of Florida issued opinion No. SC21-929 amending the Florida Rules of Civil Procedure both to codify case law applying the federal apex doctrine and to extend its protections to the private sphere.
Broadly, the federal apex doctrine exists to shield high-ranking government or corporate officers from discovery depositions if the officers can demonstrate that they cannot testify with personal knowledge as to facts relating to the issues in the case. As now codified within Florida Rules of Civil Procedure 1.280(h) the rule provides that “current or former high-level government or corporate officer[s]” may avoid being deposed by filing a motion under the rule supported by an affidavit or declaration that the officer “lacks unique personal knowledge of the issues being litigated.” Unless the party seeking the deposition can contradict the official’s claim or make additional showings that other discovery has been exhausted or is inadequate, the court will enter an order shielding the official from a deposition.
In adopting the apex doctrine, the Court weighed the following three factors:
- Florida Rule of Civil Procedure 1.280(b) (Scope of Discovery) exhibits a permissive policy to the availability of discovery;
- Florida Rule of Civil Procedure 1.280(c) (Protective Orders) checks this permissive policy by permitting the Florida courts to enter protective orders “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense; and
- Rather than limiting the protection of rule 1.280(c) to high-level government officers, federal district courts in Florida have enforced the apex doctrine in the corporate context for decades.
In codifying the apex doctrine into the Florida Rules, the Court further stated that “we think that the efficiency and anti-harassment principles animating that doctrine are equally compelling in the private sphere” and emphasized that the doctrine “in no way creates a blanket prohibition on the taking of a deposition of a high-ranking corporate official.”
Finally, in balancing the need for litigants to obtain necessary discovery with the protections for high level current and former corporate officers, the Court stated that “it is in Florida’s best interests to codify the apex doctrine in our rules of civil procedure and to apply the doctrine to both private and government officers.”