In Re: Amendment to Florida Rule of Civil Procedure 1.280

Opinion

Supreme Court of Florida ____________

No. SC21-929 ____________

IN RE: AMENDMENT TO FLORIDA RULE OF CIVIL PROCEDURE 1.280.

August 26, 2021

MUÑIZ, J.

Many courts apply the “apex doctrine” to protect high-level

corporate officers from the risk of abusive discovery, while still

honoring opposing litigants’ right to depose such persons if

necessary. 1 Florida’s version of the apex doctrine, developed by the

district courts of appeal as a common law gloss on our rules of civil

1. See, e.g., Tierra Blanca Ranch High Country Youth Program v. Gonzalez, 329 F.R.D. 694, 696 (D.N.M. 2019) (the apex doctrine “has been applied by a variety of federal district courts nationwide”); State ex rel. Mass. Mut. Life Ins. Co. v. Sanders, 724 S.E.2d 353, 359-63 (W. Va. 2012) (adopting the apex doctrine and examining case law from other jurisdictions that have done so). Federal district courts in Florida apply the doctrine. See, e.g., Office Depot, Inc. v. Elementum Ltd., No. 9:19-cv-81305, 2020 WL 5506445, at *3 (S.D. Fla. Sep. 14, 2020). procedure, protects only high-level government officials. 2 On our

own motion, we now amend those rules to codify the apex doctrine

and to extend its protections to the private sphere. 3

I.

We begin with a brief discussion of Suzuki Motor Corp. v.

Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019), the impetus for our

decision to take up the apex doctrine now.

Suzuki came to the First District Court of Appeal on certiorari

review. The issue was whether the trial court had departed from

2. We appreciate that some judges have drawn a distinction between the apex doctrine (for private sector officers) and the “agency-head deposition test” (for government officers). See, e.g., Miami Dade College v. Allen, 271 So. 3d 1194, 1198 (Fla. 3d DCA 2019) (Miller, J., specially concurring). For simplicity, we will use the term “apex doctrine” when discussing both contexts, private and government. See, e.g., City of Huntington v. AmerisourceBergen Drug Corp., No. 3:17-01362, 2020 WL 3520314, at *2 (S.D. W.Va. June 29, 2020) (“The ‘apex doctrine’ applies to a specific subset of deposition notices that demand the appearance of high-level executives or high-ranking government officials.”); Iain D. Johnston, Apex Witnesses Claim They Are Too Big to Depose, 41 Litigation 41, 43 (2014) (“Although some courts articulate the tests differently, for practical purposes, courts apply the apex doctrine and the high- ranking government official privilege in the same way.”).

3. We have jurisdiction. See art. V, § 2(a), Fla. Const; Fla. R. Gen. Prac. & Jud. Admin. 2.140(d).

-2- the essential requirements of law by not invoking the apex doctrine

to prevent the examination of Osamu Suzuki, then his company’s

chairman and former chief executive officer. Id. at 1108. As the

district court correctly noted, a court departs from the essential

requirements of law when it violates a clearly established principle

of law. See Williams v. Oken, 62 So. 3d 1129, 1133 (Fla. 2011).

The district court described “the essence of Florida’s apex

doctrine” as follows:

[A]n agency head should not be subject to deposition, over objection, unless and until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information which cannot be obtained from other sources.

Winckler, 284 So. 3d at 1109 (quoting Dep’t of Agric. & Consumer

Servs. v. Broward Cty., 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002)).

The First District observed that the apex “doctrine is only

clearly established in Florida in the government context, with

respect to high-ranking government officials.” Id. In fact, the

district court added, “no Florida court has adopted the apex

doctrine in the corporate context.” Id. (quoting Fla. Office of Ins.

Regulation v. Fla. Dep’t of Fin. Servs., 159 So. 3d 945, 951 (Fla. 1st

-3- DCA 2015)). Against that baseline, the district court concluded that

“the trial court did not depart from the essential requirements of the

law by refusing to apply this doctrine to Suzuki Motor Corporation’s

corporate officer.” Id.

Judge Thomas dissented. Id. at 1110. He accepted the

premise that Florida courts have not invoked the apex doctrine

outside the government context, but he maintained that “the

rationale of the doctrine is equally applicable in the private sphere:

the courts cannot countenance unjustified discovery of lead

corporate executives for no legitimate reason.” Id. at 1113. Judge

Thomas lamented that the majority’s approach—which found it

determinative that the apex doctrine was not “clearly established” in

the corporate context—would prevent Florida’s appellate courts

from ever extending the apex doctrine to that context in the first

instance. Id. at 1110.

Notwithstanding the Suzuki panel’s split on the merits, it

unanimously certified to this Court the question: “Does a departure

from the essential requirement of law occur when the so-called apex

doctrine, which applies to governmental entities . . . , is not applied

to a corporation?” Id. at 1115. We initially granted Suzuki’s

-4- petition to review the First District’s decision. But in an order

issued concurrently with this opinion, we have exercised our

discretion to discharge jurisdiction in the case.

II.

Unconstrained by the limited scope of certiorari review, this

rules case allows us to determine whether to adopt the apex

doctrine in the corporate context. Our approach to this question is

framed by three considerations. First, as reflected in Florida Rule of

Civil Procedure 1.280(b) (Scope of Discovery), our rules generally

take a permissive approach to the availability of discovery. Second,

as reflected in Florida Rule of Civil Procedure 1.280(c) (Protective

Orders), our rules’ generally liberal orientation toward discovery is

checked by the availability of protective orders “to protect a party or

person from annoyance, embarrassment, oppression, or undue

burden or expense.” And third, rather than limit high-level

government officers to the generic protection of rule 1.280(c),

district courts in Florida for decades have enforced the apex

doctrine in the government context.

Preventing harassment and unduly burdensome discovery has

always been at the heart of that doctrine in our state. The First

-5- District invoked that rationale in Florida’s seminal apex doctrine

case, Department of Agriculture & Consumer Services v. Broward

County, 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002). There, the

court observed that withholding the doctrine’s protections would

“subject agency heads to being deposed in virtually every rule

challenge proceeding, to the detriment of the efficient operation of

the agency in particular and state government as a whole.” Id.

Similarly, in a case applying the apex doctrine for the benefit of a

state university president, the First District warned that

“compelling the deposition of President Bense in this context could

have future widespread ramifications and subject her to deposition

in numerous other employment disputes.” Univ. of W. Fla. Bd. of

Trustees v. Habegger, 125 So. 3d 323, 325 (Fla. 1st DCA 2013).

Over the years, varied government officers in Florida have benefited

from the apex doctrine.

We think that the efficiency and anti-harassment principles

animating that doctrine are equally compelling in the private

sphere. “Virtually every court that has addressed deposition

notices directed at an official at the highest level or ‘apex’ of

corporate management has observed that such discovery creates a

-6- tremendous potential for abuse or harassment.” Celerity, Inc. v.

Ultra Clean Holding, Inc., No. C 05-4374, 2007 WL 205067, at *3

(N.D. Cal. Jan. 25, 2007). Federal district courts in Florida have

similarly commented that, “by virtue of their position,” apex officials

“are vulnerable to numerous, repetitive, harassing, and abusive

depositions, and therefore need some measure of protection from

the courts.” Brown v. Branch Banking & Trust Co., No. 13-81192-

CIV, 2014 WL 235455, at *2 (S.D. Fla. Jan. 22, 2014) (cleaned up).

We see no good reason to withhold from private officers the same

protection that Florida courts have long afforded government

officers.

Like other courts that have adopted the apex doctrine in the

corporate context, we emphasize that the doctrine “in no way

creates a blanket prohibition on the taking of a deposition of a high-

ranking corporate official.” Sanders, 724 S.E.2d at 364. The point

of the apex doctrine is to balance the competing goals of limiting

potential discovery abuse and ensuring litigants’ access to

necessary information. Properly applied, the doctrine “will prevent

undue harassment and oppression of high-level officials while still

providing a [party] with several less-intrusive mechanisms to obtain

-7- the necessary discovery, and allowing for the possibility of

conducting the high-level deposition if warranted.” Liberty Mut. Ins.

Co. v. Superior Ct., 13 Cal. Rptr. 2d 363, 367-68 (Cal. Ct. App.

1992).

III.

We are persuaded 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. Making this

change as a rule amendment allows us to ensure consistency

across the two contexts 4 and to define and explain the apex

doctrine as clearly as possible.

The new Florida Rule of Civil Procedure 1.280(h) (Apex

Doctrine) that we adopt today is as follows:

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

4. Of course, we recognize that certain privileges or constitutional principles might be applicable in one context and not the other.

-8- 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.

We now explain key aspects of the rule.

“Current or former high-level government or corporate officer.” A

threshold issue in every case involving the rule is whether the

would-be deponent is, in fact, a “current or former high-level

government or corporate officer.” When that person’s “high-level”

status is disputed, the burden is on the person or party resisting

the deposition to persuade the court that this requirement is

satisfied. Of course, if the requirement is not satisfied, the would-

be deponent cannot claim the benefit of the rule.

We do not think it is feasible or desirable to codify a definition

of “high-level government or corporate officer.” Courts have

enforced the apex doctrine in the government and private contexts

for decades, and there is a rich body of case law applying the term.

In cases that are on the margin, the proper application of the term

should be discerned the same way one interprets any other

-9- undefined term in a statute or rule—according to how a reasonable,

fully informed reader would understand the term, in context. Given

that the new rule codifies a doctrine of long legal standing, a proper

interpretation of the term will necessarily consider how courts have

traditionally used the term, together with the well-established

purposes of the apex doctrine. And the typical reader’s familiarity

with those materials will be assumed. Cf. Felix Frankfurter, Some

Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 536

(1947) (“If [words] are addressed to specialists, they must be read by

judges with the minds of the specialists.”).

Where courts apply the apex doctrine at all, they generally

extend the protections of the doctrine to former high-level officers.

See Horne v. Sch. Bd. of Miami-Dade Cnty., 901 So. 2d 238, 241

(Fla. 1st DCA 2005) (holding in the government context that the

apex doctrine “is equally applicable to former agency heads and

high-ranking officials in circumstances such as these involving past

official conduct”); Palmisano v. Paragon 28, Inc., No. 21-60447-CIV,

2021 WL 1686948, at *3 (S.D. Fla. 2021) (“Palmisano is Wright’s

former CEO. His deposition, therefore, is subject to the apex

doctrine.”); Fed. Deposit Ins. Corp. v. Galan-Alvarez, No. 1:15-mc-

- 10 - 00752, 2015 WL 5602342, at *4 (D.D.C. Sept. 4, 2015) (“The apex

doctrine is no less applicable to former officials than to current

officials.”). To avoid any doubt, the rule explicitly covers former

Finally, we note that the rule—consistent with the case law—

uses the term “officer” in the generic sense of “[o]ne who holds an

office of authority or trust in an organization, such as a corporation

or government.” American Heritage Dictionary 1223 (5th ed. 2011).

The case law in this area treats as synonymous the terms officer,

official, and executive. In the apex doctrine context, “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.

Affidavit or declaration and its contents. Courts applying the

apex doctrine in the corporate context have typically required the

person resisting deposition to produce an affidavit disclaiming

unique, personal knowledge of relevant facts. By contrast, Florida

courts applying the doctrine in the government context have not

always required such an affidavit. See Allen, 271 So. 3d at 1199

(Miller, J., specially concurring). We think that requiring an

- 11 - affidavit or declaration is essential to the proper functioning of the

rule in both contexts, and so we have made the requirement explicit

in the rule.

We emphasize the rule’s requirement that the officer “explain”

that he or she lacks unique, personal knowledge of the issues being

litigated. Bald assertions of ignorance will not do. A sufficient

explanation will show the relationship between the officer’s position

and the facts at issue in the litigation. 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.

The parties’ burdens. Under the rule, the person or party

resisting a deposition has two burdens: a burden to persuade the

court that the would-be deponent meets the high-level officer

requirement, and a burden to produce an affidavit or declaration

explaining the official’s lack of unique, personal knowledge of the

issues being litigated. If the resisting person or party satisfies those

burdens, and the deposition-seeker still wants to depose the high-

level officer, the deposition-seeker bears the burden to persuade the

court that it has exhausted other discovery, that such discovery is

- 12 - inadequate, and that the officer has unique, personal knowledge of

discoverable information.

The rule’s approach to the parties’ respective burdens is

consistent with how Florida courts have applied the apex doctrine

in the government context. See, e.g., Univ. of W. Fla. Bd. of Trs. v.

Habegger, 125 So. 3d 323, 325 (Fla. 1st DCA 2013) (placing

ultimate burden of persuasion on the deposition-seeker). And

although courts nationally are not entirely consistent in their

allocation of the parties’ burdens, 5 the rule’s approach is common

in the case law. See, e.g., Shenzhen Kinwong Elec. Co. v. Kukreja,

No. 18-61550, 2019 WL 8298217, at *1 (S.D. Fla. Dec. 12, 2019)

(party seeking apex deposition has burden to establish unique

knowledge and exhaustion of other discovery); Sanders, 724 S.E.2d

at 364 (“[T]he circuit court should first determine whether the party

seeking the deposition has demonstrated that the official has any

unique or superior personal knowledge of discoverable

information.”); Affinity Labs of Texas v. Apple, Inc., No. C 09-

5. See Johnston, supra, note 2, at 44 (“[W]hen it comes to determining which party bears the burden on the issue of deposing apex witnesses, decisions are all over the place.”).

- 13 - 4436CW, 2011 WL 1753982, at *15 (N.D. Cal. May 9, 2011)

(“[P]arties seeking to depose a high ranking corporate officer must

first establish that the executive (1) has unique, non-repetitive,

firsthand knowledge of the facts at issue in the case, and (2) that

other less intrusive means of discovery, such as interrogatories and

depositions of other employees, have been exhausted without

success.”).

Relationship to rule 1.280(c). The rule we adopt today stands

on its own. New rule 1.280(h) is an alternative to rule 1.280(c) for

use in the limited context of depositions of high-level government

and corporate officers. The new rule is not governed by the “good

cause” standard of rule 1.280(c), and it imposes burdens of

production and persuasion that are distinct from the burdens at

play in rule 1.280(c). Government and corporate officers who

cannot meet the new rule’s requirements, or who choose not to try

to, remain free to seek relief under rule 1.280(c).

IV.

We amend Florida Rule of Civil Procedure 1.280 as reflected in

the appendix to this opinion. New language is indicated by

underscoring. The amendment shall become effective immediately

- 14 - upon the issuance of this opinion, and it applies in pending cases.

Where appropriate, courts should exercise their discretion to allow

parties a reasonable opportunity to convert a pending motion for

protective order under rule 1.280(c) to a motion under new rule

1.280(h).

Because the amendment was not published for comment

previously, interested persons shall have seventy-five days from the

date of this opinion in which to file comments with the Court.6

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, COURIEL, and GROSSHANS, JJ., concur. LABARGA, J., dissents with an opinion.

6. All comments must be filed with the Court on or before November 9, 2021, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

- 15 - THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THIS AMENDMENT.

LABARGA, J., dissenting.

Today, on its own motion, effective immediately, and with the

ease of a rule amendment, the majority abandons Florida’s long-

standing refusal of affording special discovery protections to top-

level corporate decision-makers. I respectfully dissent.

Rule 1.280, Florida Rules of Civil Procedure, sets forth

“General Provisions Governing Discovery.” The new rule adopted by

the majority, rule 1.280(h) (“Apex Doctrine”), provides that “a

current or former high-level government or corporate officer” may

not be subjected to a 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.” Majority op. at

8-9. The corporate officer may seek such protection by filing a

motion for protective order and attaching an affidavit or declaration

explaining that the officer lacks such unique and personal

knowledge of the issues being litigated. Majority op. at 8.

- 16 - The majority’s reasoning for the change is principally

predicated upon the potential for abusive discovery tactics against

an official at the highest level or “apex” of corporate management:

“Virtually every court that has addressed deposition notices

directed at an official at the highest level or ‘apex’ of corporate

management has observed that such discovery creates a

tremendous potential for abuse or harassment.” Majority op. at 6-7

(quoting Celerity, Inc. v. Ultra Clean Holding, Inc., No. C 05-4374,

2007 WL 205067, at *3 (N.D. Cal. Jan. 25, 2007)).

“Federal district courts in Florida have similarly commented

that, ‘by virtue of their position,’ apex officials ‘are vulnerable to

numerous, repetitive, harassing, and abusive depositions, and

therefore need some measure of protection from the courts.’ ”

Majority op. at 7 (quoting Brown v. Branch Banking & Trust Co.,

No. 13-81192-CIV, 2014 WL 235455, at *2 (S.D. Fla. Jan. 22,

2014).

However, as discussed below, the existing discovery framework

contained in the Florida Rules of Civil Procedure adequately affords

trial judges with the necessary authority and tools to deal with any

- 17 - potential abuse or harassment, thus rendering the new rule

adopted here today unnecessary.

Any discussion of Florida’s discovery process must begin with

the recognition that the Florida Rules of Civil Procedure afford

parties in litigation with broad discovery tools. “Our rules of civil

procedure broadly allow parties to obtain discovery of ‘any matter,

not privileged, that is relevant to the subject matter of the pending

action,’ whether the discovery would be admissible at trial, or is

merely ‘reasonably calculated to lead to the discovery of admissible

evidence.’ ” Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 995 (Fla.

1999) (quoting Fla. R. Civ. P. 1.280(b)(1)).

Rule 1.280(a), for instance, provides that “[p]arties may obtain

discovery by one or more of the following methods: deposition upon

oral examination or written questions; written interrogatories;

production of documents or things or permission to enter upon land

or other property for inspection and other purposes; physical and

mental examinations; and requests for admission.” Moreover, rule

1.280(a) further provides that unless the court orders otherwise, or

except as provided by the rules, “the frequency of use of these

methods is not limited.”

- 18 - Thus, the goal of our discovery rules is to expand access to

information that is “relevant to the subject matter of the pending

action,” not to diminish it. Fla. R. Civ. P. 1.280(b)(1).

The discovery process, however, is not without limitations.

Rule 1.280(c) authorizes the trial court, for good cause shown, to

enter any order to protect a party or person from “annoyance,

embarrassment, oppression, or undue burden or expense that justice

requires.” (Emphasis added.) Rule 1.280(c) further authorizes the

trial court to impose terms and conditions on discovery, including:

(1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into; or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

Thus, Florida’s existing discovery framework provides trial

courts with the necessary tools to address abusive discovery

- 19 - practices, ranging from mandating the method of discovery to be

used, to prohibiting the discovery from occurring in the first place.

Rule 1.280(c) even provides for the award of expenses incurred in

relation to the motion for protective order. Accordingly, there is no

need for the special discovery protection afforded to top-level

corporate officers by the majority’s new rule. The protection, if

needed, is available in Florida’s existing rules of civil procedure.

The majority also contends that the application of the apex

doctrine to top-level corporate decision-makers will make the

discovery process more efficient. I disagree. The majority correctly

acknowledges that a threshold issue in every case involving the new

rule will be “whether the would-be deponent is, in fact, a ‘current or

former high-level government or corporate officer.’ ” Majority op. at

9. According to the majority, “[w]hen that person’s ‘high-level’

status is disputed, the burden is on the person or party resisting

the deposition to persuade the court that this requirement is

satisfied.” Majority op. at 9.

Despite the potential difficulties of determining whether the

would-be deponent is or was a “high-level” corporate officer, the

- 20 - majority gave any attempt to codify a helpful definition a pass.

Instead, the majority offers the following:

We do not think it is feasible or desirable to codify a definition of “high-level government or corporate officer.” Courts have enforced the apex doctrine in the government and private contexts for decades, and there is a rich body of case law applying the term. In cases that are on the margin, the proper application of the term should be discerned the same way one interprets any other undefined term in a statute or rule—according to how a reasonable, fully informed reader would understand the term, in context. Given that the new rule codifies a doctrine of long legal standing, a proper interpretation of the term will necessarily consider how courts have traditionally used the term, together with the well-established purposes of the apex doctrine. And the typical reader’s familiarity with those materials will be assumed.

Majority op. at 9-10.

Thus, once it is determined, after what could amount to

substantial, expensive, and lengthy litigation, that the would-be

deponent is indeed a current or former high-level corporate officer,

the next question will be whether that person is the officer who has

the unique or personal knowledge of discoverable information. The

potential for abuse, gamesmanship, expense, and delay that can be

reasonably anticipated from this process clearly outweighs any

benefits expected to be derived from the new rule adopted by the

- 21 - majority here today. This is especially the case when the

protections the new rule espouses already exist in the rules of

procedure.

Tellingly, in adopting the apex doctrine, Florida joins only four

states that have adopted the doctrine: California, Michigan, West

Virginia, and Texas. The remaining forty-six states have not

adopted the doctrine, and courts in at least five states—Oklahoma,

Missouri, Colorado, Connecticut, and North Carolina—have

expressly rejected it. See Crest Infinity, II, LP v. Swinton, 174 P. 3d

996, 1004 (Okla. 2007); State ex rel. Ford Motor Co. v. Messina, 71

S.W.3d 602, 607 (Mo. 2002) (“This Court declines to adopt an ‘apex’

rule. Instead, depositions of top-level decision-makers should

proceed in accordance with Rules 56.01(b)(1) and 56.01(c).”);

BlueMountain Credit Alternatives Master Fund L.P. v. Regal Ent.

Grp., 465 P.3d 122, 131 (Colo. Ct. App. 2020) (“[A] growing number

of state courts, including those whose rules of civil procedure, like

ours, are modeled on the federal rules, have rejected it.”); Duke

Energy Carolinas, LLC v. AG Ins. SA/NV, No. 17 CVS 5594, 2019 WL

6699461, at *4 (N.C. Super. Ct. Dec. 6, 2019); Netscout Sys., Inc. v.

Gartner, Inc., FSTCV 1460229885, 2016 WL 5339454, at *6 (Conn.

- 22 - Super. Ct. Aug. 22, 2016) (“[I]t seems clear that the rule is

incompatible with Connecticut law to the extent it shifts the burden

of showing good cause to the proponent of the deposition.”).

Four of the five states that have rejected the apex doctrine

have discovery rules which, with language that is nearly identical to

Florida’s rule 1.280, provide a discovery framework for dealing with

abusive discovery tactics. Given that framework, these states found

it unnecessary to provide high-level corporate officers with any

further special discovery protection—as should the State of Florida.

I respectfully dissent.

Original Proceeding – Florida Rules of Civil Procedure

- 23 - APPENDIX

Rule 1.280 General Provisions Governing Discovery

(a) – (g) [No Change]

(h) Apex Doctrine. 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.

Committee Notes

[No Change]

Court Commentary

- 24 -