McLane Foodservice, Inc. v. Elizabeth Wool

• Court: District Court of Appeal of Florida
• Decided: October 2, 2024
• Docket: 3D2024-0566
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 2, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-0566 Lower Tribunal No. 21-17014-CA-01 ________________

McLane Foodservice, Inc., Petitioner,

vs.

Elizabeth Wool, Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge.

Wicker Smith O’Hara McCoy & Ford, P.A., and Jessica L. Gross and Nina N. Batista, for petitioner.

Lauri Waldman Ross, P.A., and Lauri Waldman Ross; South Florida Appeals, PA, and Wm. Allen Bonner, for respondent.

Before SCALES, LINDSEY, and BOKOR, JJ.

LINDSEY, J. Petitioner McLane Foodservice, Inc. (Defendant below) seeks a writ of

certiorari quashing the trial court’s order compelling the deposition of its

current President. We grant the petition for the reasons set forth below.

INTRODUCTION

The instant petition involves a discovery dispute in an underlying

negligence action. Respondent Elizabeth Wool (Plaintiff below), an

employee of a Miami-based Kentucky Fried Chicken restaurant, alleges she

sustained injuries when she attempted to unstack boxes of chicken that

McLane delivery drivers had delivered earlier that same day. Wool alleges

that McLane’s negligence caused her injuries.

McLane is a nationwide company that distributes food and foodservice

items to restaurants throughout the United States. A multibillion-dollar

company with 48 distribution centers around the nation, McLane employs

more than 9,000 people. Susan Adzick is McLane’s current President. The

order under review compels her deposition.

PROCEDURAL HISTORY

The lengthy procedural history below informs our decision herein. On

September 9, 2022, Wool noticed the deposition of a McLane corporate

representative prepared in accordance with Florida Rule of Civil Procedure

1.310(b)(6). In the notice, Wool designated certain matters/topics for the

2 deposition regarding the subject incident, including: the policies and

procedures for unloading boxes, the transportation and/or delivery of boxes,

the policies and procedures for placement and/or stacking of boxes, and the

training and supervision provided in connection therewith. McLane produced

Lamont Lawson as the corporate representative.

McLane also produced two documents in response to Wool’s request

for production of “[a]ny and all contracts pertaining to the delivery of

foodservice products to the Subject Property on March 1, 2021.” The two

documents were entitled (1) the Participant Distribution Joinder Agreement

and (2) the Master Distribution Agreement, collectively (the “Agreements”).

Both Agreements were entered into by McLane and non-parties. And Adzick

signed both in her then role as Senior Vice President of Sales and Strategic

Relations.1

Wool deposed Lawson, McLane’s designated corporate

representative, on October 11, 2022. Lawson was asked about the two

Agreements but proved unable to discuss them. We note, however, that the

1 Since that time, Adzick has been promoted to her current position as President of McLane.

3 Agreements were not specifically designated as an area of inquiry in the

September 9, 2022 notice of deposition.2

Thereafter, Wool moved to compel the deposition of Adzick on the

basis that she was a signatory to the Agreements. In response, McLane

moved for a protective order and filed an accompanying Affidavit from Adzick

averring that she does not have any personal knowledge or unique

information pertaining to the facts or issues being litigated.

On August 11, 2023, the trial court held a hearing on Wool’s Motion to

Compel and McLane’s Motion for Protective Order. At the hearing, Wool

argued that because Adzick signed the Agreements, Wool should be entitled

to take Adzick’s deposition. McLane responded that the Apex Doctrine

forecloses deposing Adzick.3 At the conclusion of the hearing, the trial court

sua sponte stated on the record that it would allow Wool “to designate new

areas of inquiry of the corporate rep.” Thereafter, on August 14, 2023, the

trial court entered a written order deferring ruling on Wool’s Motion to Compel

and McLane’s Motion for Protective Order and ordering McLane to produce

2 Thus, Wool’s complaint that Lawson did not have adequate knowledge of the Agreements is of no moment. 3 See Fla. R. Civ. P. 1.280(h). Effective January 1, 2025, the Apex Doctrine Rule will be moved from 1.280(h) to 1.280(i). See In re Amends. to Fla. R. Civ. P., 386 So. 3d 497 (Fla. 2024).

4 a corporate representative for deposition “on topics related to the contracts

produced by McLane” and signed by Adzick.

Then, on August 31, 2023, Wool served a second notice for a corporate

representative deposition. In the notice, McLane designated certain

matters/topics regarding the content of the Agreements, compliance with the

Agreements with respect to delivery and/or stacking of boxes, the rationale

for entering into the Agreements, the due diligence process in evaluating the

decision to enter into the Agreements, and information regarding all persons

with decision-making authority to enter into the Agreements.

In response, McLane produced Paul Frazier for deposition on October

6, 2023. Frazier knew about the Agreements and confirmed that they do not

contain any details about the delivery height of any boxes, the height or the

weight of deliveries, or the performance standards having to do with the

method boxes are delivered. However, Frazier had limited knowledge about

the details of the Agreements because he was not involved in their

preparation. He did, however, identify other individuals at McLane who

would have more knowledge. Thereafter, on October 27, 2023, Wool filed a

Renewed Motion to Compel the Deposition of Adzick alleging that Frazier

“was unable to answer multiple critical questions about the contracts, and

the designated deposition topics, due to his lack of knowledge.”

5 On February 28, 2024, the trial court entered a written order granting

Wool’s Motion to Compel the deposition of Adzick and denying McLane’s

Motion for Protective Order. In its order, the trial court acknowledged that

Adzick had filed an Affidavit averring that she had no personal knowledge or

unique information pertaining to the facts or issues being litigated. Yet, in

concluding that the Apex Doctrine does not preclude Wool from deposing

Adzick at this stage in the proceedings, the trial court found that Wool

demonstrated that she exhausted other discovery, that such discovery is

inadequate, and that Adzick has unique personal knowledge of discoverable

information.

This timely petition followed.

ANALYSIS

A writ of certiorari is proper where a petitioner demonstrates “(1) a

material injury in the proceedings that cannot be corrected on appeal

(sometimes referred to as irreparable harm); and (2) a ‘depart[ure] from the

essential requirements of the law.’” E.g., Nader v. Fla. Dept. of Highway

Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012) (quoting Belair v.

Drew, 770 So. 2d 1164, 1166 (Fla. 2000)). “A finding that the petitioning

party has ‘suffered an irreparable harm that cannot be remedied on direct

appeal’ is a ‘condition precedent to invoking a district court's certiorari

6 jurisdiction.’” Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ.

Enters., LLC, 99 So. 3d 450, 454-55 (Fla. 2012) (quoting Jaye v. Royal

Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998)).

Certiorari jurisdiction lies to review an order compelling the deposition

of a high-level corporate official because “[o]nce discovery is wrongfully

granted, the complaining party is beyond relief.” DecisionHR USA, Inc. v.

Mills, 341 So. 3d 448, 452 (Fla. 2d DCA 2022) (quoting Miami Dade Coll. v.

Allen, 271 So. 3d 1194, 1196 (Fla. 3d DCA 2019)). “We therefore address

the merits of the petition—whether the trial court departed from the essential

requirements of the law . . . .” Tesla, Inc. v. Monserratt, 384 So. 3d 194, 196

(Fla. 4th DCA 2024).

In August 2021, the Florida Supreme Court adopted Florida Rule of

Civil Procedure 1.280(h), thereby codifying the Apex Doctrine, which

protects “high-level corporate officers from the risk of abusive discovery,

while still honoring opposing litigants’ right to depose such persons if

necessary.” In re Amends. to Fla. R. Civ. P. 1.280, 324 So. 3d 459, 459 (Fla.

2021).4 “[O]nce the supreme court codified the apex doctrine, the

4 Before the adoption of Rule 1.280(h), “Florida’s version of the apex doctrine, developed by the district courts of appeal as a common law gloss on our rules of civil procedure, protect[ed] only high-level government officials.” In re Amends. to Fla. R. Civ. P. 1.280, 324 So. 3d at 459.

7 requirements of the rule became clearly established principles of law.”

Chewy, Inc. v. Covetrus, Inc., 384 So. 3d 265, 269 (Fla. 4th DCA 2024)

(citing DecisionHR USA, 341 So. 3d at 453).

“We construe rule 1.280(h) as we would a statute, which means that if

the text of the rule is unambiguous, we apply the rule as written without resort

to principles of construction. The text of rule 1.280(h) is unambiguous, and

our supreme court has provided a detailed explanation of the reasons for the

rule and key aspects of its application.” DecisionHR USA, 341 So. 3d at 454

(Fla. 2d DCA 2022) (citations omitted). We turn now to the essential

requirements of the rule.

Under the Apex Doctrine rule, “[a] current or former high-level

government or corporate officer may seek an order preventing the officer

from being subject to a deposition.” Fla. R. Civ. P. 1.280(h). Here, it is

undisputed that Adzick, the President of McLane, is a current high-level

corporate officer; therefore, this requirement is satisfied. Cf. In re Amends.

to Fla. R. Civ. P. 1.280, 324 So. 3d at 462 (“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.”).

Next, the rule requires “an affidavit or declaration of the officer

explaining that the officer lacks unique, personal knowledge of the issues

8 being litigated.” Fla. R. Civ. P. 1.280(h). It is undisputed that Adzick filed an

Affidavit in response to Wool’s first Motion to Compel, disclaiming personal

knowledge of the issues being litigated, and at no point below did Wool

challenge the sufficiency of the Affidavit.5

Once McLane established that Adzick was a high-level corporate

officer and produced a sufficient Affidavit, the court was required to 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.” Id. We conclude that the trial court departed from

the essential requirements of the law because Wool failed to satisfy these

burdens.

Prior to ordering Adzick’s deposition, the trial court ordered McLane to

provide a corporate representative with knowledge of the Agreements.

McLane produced Paul Frazier, Vice President of National Accounts. In his

deposition, Frazier stated that he knew of the Agreements but had no

knowledge of the details because he was not involved with the preparation

of the Agreements. He did, however, testify that there were other individuals

5 Moreover, the trial court made no findings with respect to the sufficiency of Adzick’s Affidavit, thus implicitly approving of the same. Instead, the trial court focused on Wool’s burdens under the Apex Doctrine.

9 at McLane who would have more knowledge of the Agreements, such as Jeff

Hayes:

Q Okay. If I wanted to ask someone else at McLane about the provisions in these agreements that you were not familiar with, is it -- is it fair to assume that Ms. Adzick would have knowledge about those provisions?

....

THE WITNESS: Fair, I would think Jeff Hayes would be the -- the person more intimately familiar with some of this terminology.

Frazier also identified Tom Zatina as the president of McLane when

the Agreements were put into effect:

Q Is the -- and the McLane Foodservice president, is that Ms. Adzick?

A At the time that this agreement was put into effect, that would have been Tom Zatina.

When asked who had knowledge about McLane’s delivery policies

and procedures, Frazier identified the individual general managers:

Q Okay. Now, does McLane have policies and procedures that maybe expound on this deemed delivered language and require the McLane drivers not only to place the product in the correct storage area, but to stack the products in a certain way or leave them in a certain way at a store?

A That would really be out -- outside my area of expertise . . . .

10 Q Okay. And who would have knowledge about that at McLane?

THE WITNESS: . . . That would have to be the individual general managers of the -- of the warehouses and/or their operational leadership.

The record before us is devoid of any effort on the part of Wool to

depose Hayes, Zatina, or any of the individual managers supervising the

day-to-day delivery operations, as Frazier identified in his deposition. Thus,

Frazier’s references to others who “would be more intimately familiar” with

the contract language demonstrate that Adzick’s knowledge is not “unique”

and that Wool did not meet her burden to “exhaust” discovery on this issue.

See Tesla, 384 So. 3d at 197 (granting petition for writ of certiorari because

“Plaintiff has not shown that the existing discovery is inadequate or that Mr.

Musk has unique, personal knowledge of discoverable information”); Chewy,

384 So. 3d at 273 (granting petition for writ of certiorari because respondent

failed “to exhaust discovery before seeking to depose the CEO, it also failed,

as discussed above, to sustain its burden that the CEO has unique, personal

knowledge of discoverable information (i.e., information that cannot be

obtained from other sources)”).

CONCLUSION

11 For the above reasons, we conclude that the trial court departed from

the essential requirements of the law in determining that Wool met her

burden under Rule 1.280(h) because she failed to demonstrate that she

exhausted other discovery, that such discovery was inadequate, and that

Adzick has unique, personal knowledge of discoverable information.

Accordingly, we grant the petition for writ of certiorari and quash the order

below compelling Adzick’s deposition.

Petition granted; order quashed.