Portrait of Christopher Cabrera

Christopher Cabrera

The “apex doctrine” protects high level officers from the risk of abusive discovery. Prior to the opinion issued by the Florida Supreme Court in the case of In re: Amendment to Florida Rule of Civil Procedure 1.280, Florida Courts applied the “apex doctrine” to protect only high level government officials. This application of the “apex doctrine” meant that high level corporate officers were at risk of being forced into discovery proceedings although they had no personal knowledge in the case or controversy.

After the decision handed down on August 26, 2021, the version of the “apex doctrine” that protects both high level government and corporate officials was codified in Florida Rule of Civil Procedure 1.280. Although federal courts have always broadly applied the “apex doctrine” to both high level government and corporate officers, Florida has become only the fifth state to formally adopt this version of the “apex doctrine.”

In Florida, the issue of whether the “apex doctrine” applied in the corporate context arose in the case of Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019). In that case Mr. Winckler sued Suzuki Motor Corp alleging that he was injured in a motorcycle accident caused by a failure of the motorcycle’s brake system. During discovery, Winckler sought to depose Osamu Suzuki, the chairman of the company and former CEO. In response, Suzuki Motor Corp essentially argued that the apex doctrine protected Mr. Suzuki from having to participate in the deposition because he had no personal knowledge in the issue and there were better suited individuals within the company to answer to deposition questions. The trial court concluded that the “apex doctrine” did not apply to private corporations and the First District Court of Appeal affirmed the trial court decision explaining that, “No Florida court has adopted the apex doctrine in the corporate context.”

The Florida Supreme Court responded to the Suzuki case by extending the “apex doctrine” protection to high level corporate officers. The amendment of Florida Rule of Civil Procedure 1.280(h), now states that “[a] current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition.” The Court reasoned that the “efficiency and anti-harassment principles animating [the apex doctrine] are equally compelling in [both government] and private sphere[s].” In addition, “apex officials ‘are vulnerable to numerous, repetitive, harassing, and abusive depositions, and therefore need some measure of protection from the courts.’”

Procedurally, a party may request an opposing party officer subject themselves to a deposition. The opposing party then has the burden of establishing that the officer is a “high level” officer and must submit an affidavit stating why they “lack unique, personal knowledge of the issues being litigated.” This issue will be determined according to the unique facts of each case. After the affidavit is produced, the burden shifts to the party seeking the deposition to show that other discovery has been exhausted, and that the officer has unique, personal knowledge of discoverable information.

This decision ensures that both government and corporate “high level” officers are protected from the potential for abusive and harassing deposition requests.

  • Florida Supreme Court Case: In re: Amendment to Florida Rule of Civil Procedure 1.280
  • Website blog article: Florida Supreme Court Adopts Apex Doctrine Protecting High Level Corporate and Government Officers