The Florida Supreme Court recently announced, on its own motion, an amendment to the Florida Rules of Civil Procedure to codify the “apex doctrine” and “protect high-level corporate officers from the risk of abusive discovery, while still honoring opposing litigants’ right to depose such persons if necessary.”1 The amendment marks the first time a state has moved to codify the doctrine (sometimes called the “apex deposition rule”) as a stand-alone rule of civil procedure. Many courts have adopted the doctrine as a judicial interpretation or “common law gloss” on existing procedural rules.2 The Florida Supreme Court’s decision furthers a trend of courts protecting high-level officers from unduly burdensome or harassing depositions and may serve as a model for amendments to civil rules in other states.
March 09, 2022 Feature
Florida Supreme Court Leads on Apex Doctrine
Mark A. Behrens and Christopher E. Appel
Courts Have Embraced the Apex Doctrine to Prevent Discovery Abuse
The apex doctrine reflects courts’ recognition that high-ranking officials may be targeted for discovery and deserve protection when they have no particular direct knowledge of the facts pertaining to a lawsuit.3 “Apex” depositions can be misused as “tactical weapons” to harass corporate defendants or extract settlements unrelated to the merits of a claim.4 Many courts have appreciated that the deposition of even a single high-level executive during discovery “creates a tremendous potential for abuse or harassment.”5 As one court explained:
The job of the president of the company is to manage the company, not to fly around the United States participating in depositions about . . . disputes of which the president has no personal knowledge. . . . If all claimants demand and obtain the same right, the chief executive officer manages his or her deposition schedule, not the company.6
Courts have also appreciated that the apex doctrine promotes sound public policy beyond curbing abusive discovery. Apex depositions can stifle the actions of high-level executives in setting corporate policy, speaking for the company on important safety or other public issues, and advancing corporate culture.7
The rationales supporting application of the apex doctrine for corporate officers apply equally to depositions of high-level government officials.8 Deposing an agency head or other senior government official who lacks unique or personal knowledge of a matter can unduly burden the business of governing and frustrate other public policies. For example, courts have appreciated that allowing depositions of even former government agency heads could “serve as a significant deterrent to qualified candidates seeking public service positions.”9
The apex doctrine balances the potential for abuse inherent in apex depositions with legitimate discovery needs by limiting depositions to situations in which the high-level corporate or government officer has “unique or superior personal knowledge of discoverable information.”10 Courts additionally often require that “the information cannot be obtained by less intrusive means, such as by deposing lower-level officials or employees.”11
Federal and state courts adopting the apex doctrine typically base their decision on existing rules that address unduly burdensome civil discovery. For instance, the Federal Rules of Civil Procedure (FRCP), as well as many state rules of civil procedure, expressly limit the frequency or extent of discovery that is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.”12 Protective orders are available whenever justice requires “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”13
Courts also reason that the apex doctrine promotes the overall goal of civil procedure rules, as stated in FRCP 1 and equivalent state rules, to “secure the just, speedy, and inexpensive determination of every action.”14 FRCP 1 was amended in 2015 “to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way.”15 The apex doctrine requires parties seeking to depose a high-level officer to demonstrate that the deposition proposes to advance the litigation in a material way and is not for an improper purpose.
As the Texas Supreme Court stated when adopting the apex doctrine, “virtually every court which has addressed the subject” has appreciated the need for discovery rules that accommodate the unique problems presented by deposing high-level officers.16 Although many federal and state courts have formally adopted the apex doctrine based upon existing procedural rules, other courts have informally applied the doctrine when identifying the circumstances in which high-level officers can be deposed. As West Virginia’s high court explained, “[w]hile not all courts . . . have phrased such examination in terms of whether to adopt the ‘apex deposition rule,’ those courts, nonetheless, have applied similar common criteria . . . including whether the high-ranking corporate official has certain unique or personal knowledge and whether less intrusive methods of discovery are available.”17
For example, the Missouri Supreme Court in State ex rel. Ford Motor Co. v. Messina declined to adopt the apex doctrine per se but nonetheless granted a motion for a protective order of a high-level corporate executive.18 The court explained that in determining whether to allow “top-level employee depositions, the court should consider: whether other methods of discovery have been pursued; the proponent’s need for discovery by top-level deposition; and the burden, expense, annoyance, and oppression to the organization and the proposed deponent.”19 The Oklahoma Supreme Court in Crest Infiniti II, LP v. Swinton also declined to adopt the apex doctrine but applied the same principles, allowing for a protective order when the executive deposition “would inflict annoyance, harassment, embarrassment, oppression or undue delay, burden or expense.”20
Other state high courts have not considered whether to formally adopt the apex doctrine but are increasingly being asked to do so. Presently, for example, the issue is before the Supreme Courts of Georgia and Indiana.21
Florida’s Apex Doctrine Provides a Model for Other Jurisdictions
In August 2021, the Florida Supreme Court announced an amendment to the state’s rules of civil procedure to codify the apex doctrine in both the government and corporate contexts. The court did so on its own motion to clarify the doctrine’s existing application to the depositions of high-level government officials and to “extend its protections to the private sphere.”22
The Florida Supreme Court had not previously weighed in on the apex doctrine’s acceptance or application. Several mid-level appellate courts, as well as federal district courts, had invoked the doctrine with respect to high-ranking government officers but had not adopted it in the corporate context. The Florida Supreme Court said that “[p]reventing harassment and unduly burdensome discovery has always been at the heart” of the apex doctrine, and there is “no good reason to withhold from private officers the same protection that Florida courts have long afforded government officers.”23 The new rule adopted by the court states:
A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition. The motion, whether by a party or by the person of whom the deposition is sought, must be accompanied by an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden of production, the court shall issue an order preventing the deposition, unless the party seeking the deposition demonstrates that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information. The court may vacate or modify the order if, after additional discovery, the party seeking the deposition can meet its burden of persuasion under this rule. The burden to persuade the court that the officer is high-level for purposes of this rule lies with the person or party opposing the deposition.24
The court took care to explain “key aspects” of the rule to guide lower courts.25 For instance, the court identified that a threshold issue in any case will be whether the proposed deponent is, in fact, a “current or former high-level government or corporate officer.”26 The court concluded that it would not be feasible or desirable to define the phrase “high-level government or corporate officer” in light of the “rich body of case law applying the term.”27 The court reasoned that because the rule “codifies a doctrine of long legal standing” and “well-established” principles, which other courts have “enforced . . . for decades,” courts already have a “proper interpretation of the term.”28
The court also explained that, consistent with case law, the term “officer” is to be used “in the generic sense of ‘[o]ne who holds an office of authority or trust in an organization, such as a corporation or government.’”29 “In the apex doctrine context,” the court said, “‘high-level officer’ status depends on the organization and the would-be deponent’s role in it, not on whether the person is an ‘officer’ in a legal sense.”30
In addition, the court clarified the parties’ responsibilities with respect to an affidavit disclaiming unique, personal knowledge of relevant facts. “Bald assertions of ignorance” will not satisfy the rule, the court stated.31 A “sufficient explanation will show the relationship between the officer’s position and the facts at issue in the litigation.”32 The court explained that the “point is for the court—and the other side—to be able to evaluate the facial plausibility of the officer’s claimed lack of unique, personal knowledge.”33
Next, the court addressed the parties’ respective burdens regarding exhaustion of other discovery options and the showing necessary to allow a deposition of a high-level officer. Under Florida’s apex doctrine, the party opposing the deposition has the burden of persuading the court that the would-be deponent constitutes a high-level officer and the burden of producing an affidavit or declaration explaining the officer’s lack of unique personal knowledge of the issues being litigated. If those burdens are satisfied, the party requesting the deposition then bears the burden to persuade the court that: (1) it has exhausted other discovery, (2) such discovery is inadequate, and (3) the officer has unique personal knowledge of discoverable information.34
Finally, the court examined the new rule’s relationship with Florida’s existing rule of civil procedure governing protective orders. The court determined that the apex deposition rule “stands on its own.”35 The rule establishes an alternative to the state’s protective order rule “for use in the limited context of depositions of high-level government and corporate officers,” which imposes burdens on each party separate from the general “good cause” standard governing the issuance of a protective order.36 “Government and corporate officers who cannot meet the new rule’s requirements, or who choose not to try to,” the court explained, “remain free to seek relief” under Florida’s rule governing protective orders.37
Conclusion
The Florida Supreme Court’s decision to codify the apex doctrine represents a significant development nationally with respect to protecting high-level officers from unduly burdensome or harassing depositions. Florida joins a growing number of jurisdictions that formally adopt the doctrine in both the corporate and government context and that otherwise apply the doctrine’s principles to preclude apex depositions. By articulating the apex doctrine as a stand-alone rule of civil procedure and explaining its contours, Florida’s approach provides a clear expression of the doctrine that should serve as a model for other states. The apex doctrine promotes the orderly conduct of discovery, reduces undue burden and expense, and furthers the just, speedy, and inexpensive resolution of cases.
Notes
1. See In re Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d 459, 459 (Fla. 2021).
2. Id.
3. EchoStar Satellite, LLC v. Splash Media Partners, L.P., No. 07-cv-02611-PAB-BNB, 2009 WL 1328226, at *2 (D. Colo. May 11, 2009) (“high ranking and important executives ‘can be easily subjected to unwarranted harassment and abuse’ and ‘have a right to be protected’” (quoting Mulvey v. Chrysler Corp., 106 F.R.D. 364, 366 (D.R.I. 1985))).
4. Intelligent Verification Sys., LLC v. Microsoft Corp., No. 2:12-cv-525, 2014 WL 12544827, at *2 (E.D. Va. Jan. 9, 2014) (executives “require protection from litigation tactics [used] to create undue leverage by harassing the opposition or inflating its discovery costs”).
5. Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012).
6. Gen. Star Indem. Co. v. Atl. Hosp. of Fla., LLC, 57 So. 3d 238, 240 (Fla. Dist. Ct. App. 2011).
7. See, e.g., Guest v. Carnival Corp., 917 F. Supp. 2d 1242, 1243 (S.D. Fla. 2012); Naylor Farms, Inc. v. Anadarko OGC Co., No. 11-cv-01528-REB-KLM, 2011 WL 2535067, at *3 (D. Colo. June 27, 2011).
8. See, e.g., Murray v. County of Suffolk, 212 F.R.D. 108, 109–10 (E.D.N.Y. 2002) (quashing deposition of county police commissioner where information sought could be obtained from other police personnel).
9. Horne v. Sch. Bd. of Miami-Dade Cnty., 901 So. 2d 238, 241 (Fla. Dist. Ct. App. 2005) (quashing deposition of former state education department commissioner).
10. Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995).
11. Alberto v. Toyota Motor Corp., 796 N.W.2d 490, 495 (Mich. Ct. App. 2010).
12. Fed. R. Civ. P. 26(b)(2)(C)(i).
13. Fed. R. Civ. P. 26(c)(1).
14. Fed. R. Civ. P. 1.
15. Fed. R. Civ. P. 1 committee’s note to 2015 amendment.
16. Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995).
17. State ex rel. Mass. Mut. Life Ins. Co. v. Sanders, 724 S.E.2d 353, 361 (W. Va. 2012).
18. 71 S.W.3d 602, 609 (Mo. 2002).
19. Id. at 607.
20. 174 P.3d 996, 1004–05 (Okla. 2007).
21. See, e.g., Amici Curiae Brief of the National Ass’n of Manufacturers, American Tort Reform Ass’n & the Georgia Ass’n of Manufacturers in Support of Petitioner, Gen. Motors LLC v. Buchanan, No. S21C1147 (Ga. June 21, 2021); Amicus Curiae Brief of Chamber of Commerce of the United States of America in Support of Defendant/Appellant, Nat’l Collegiate Athletic Ass’n v. Finnerty, No. 21S-CT-00409 (Ind. Oct. 1, 2021); see also Amicus Brief of Florida Defense Lawyers Ass’n & DRI in Support of Petitioner, Suzuki Motor Corp. v. Winckler, No. SC19-1998 (Fla. Mar. 19, 2020).
22. In re Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d 459, 459 (Fla. 2021).
23. Id. at 460–61.
24. Id. at 461–62 (codified at Fla. R. Civ. P. 1.280(h)).
25. Id. at 462.
26. Id.
27. Id.
28. Id.
29. Id. (quoting American Heritage Dictionary 1223 (5th ed. 2011)).
30. Id.
31. Id. at 463.
32. Id.
33. Id.
34. See id.
35. Id.
36. Id.
37. Id.