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An Overview of the “Apex Doctrine” and its Applicability Under Florida Law

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Illustration by Barbara Kelley

Rule 1.280(b)(1) of the Florida Rules of Civil Procedure provides that a party may “obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party…” and that “it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Many decisions have analyzed the application of Rule 1.280(b)(1) in concert with the “apex doctrine.” The essence of the “apex doctrine” is that an 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 that cannot be obtained from other sources.[1] This article summarizes Florida law involving the “apex doctrine,” concluding with the Florida Supreme Court’s recent adoption of the “apex doctrine” in the private sector context in Suzuki Motor Corporation v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019).

Survey of Florida Law in Connection With the “Apex Doctrine”

The First District Court of Appeal analyzed the application of the “apex doctrine” in Horne v. School Board of Miami-Dade County, 901 So. 2d 238 (Fla. 1st DCA 2005). Horne involved a petition for writ of certiorari filed by Jim Horne, the former commissioner of education for the State of Florida, the Florida Department of Education, and the State Board of Education, seeking to quash a trial court’s order denying a motion to quash subpoena and for protective order seeking to prevent the School Board of Miami-Dade County from deposing Mr. Horne regarding school funding decisions that occurred during his tenure as commissioner.[2] In the trial court, Mr. Horne filed an emergency motion to quash subpoena and for a protective order related to the plaintiff’s request to take his deposition, arguing that, as former commissioner, he should be immune from deposition absent the required showing and that the plaintiff had only deposed three employees of the Department of Education at that stage of the proceedings.[3] Mr. Horne submitted an affidavit asserting he had no personal knowledge of the facts giving rise to the plaintiff’s claim, and that any information known by him was also known by his former staff members.[4] In denying Mr. Horne’s request to prevent his deposition, the trial court reasoned: “[M]r. Horne is the former commissioner of education. Consequently, authority holding that depositions of agency heads may not be taken except as a last resort when there are no other sources of relevant information available do[es] not apply in his situation.”[5]

The court began its substantive analysis by explaining that, in State, Department of Health and Rehabilitative Services v. Brooke, 573 So. 2d 363, 371 (Fla. 1st DCA 1991), it agreed with the U.S. District Court for the Eastern District of Pennsylvania that “[d]epartment heads and similarly high-ranking officials should not ordinarily be compelled to testify unless it has been established that the testimony to be elicited is necessary and relevant and unavailable from a lesser ranking officer.”[6] The First District, then quoting its opinion in Department of Agriculture and Consumer Services, stated:

In circumstances such as these, the 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. To hold otherwise would, as argued by the department, 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.[7]

However, the court then explained that the issue of whether the rules stated above apply to former agency heads and high-ranking officials was one of first impression in Florida and, thus, a review of caselaw addressing the issue in foreign jurisdictions would be of assistance.[8] The court then addressed the Supreme Court of Appeals of West Virginia’s decision in Arnold Agency v. West Virginia Lottery Commission, 526 S.E.2d 814, 830 (W. Va. 1999), in which it was held that former high-ranking government officials were entitled to protection from the rule that “highly placed public officials are not subject to a deposition absent a showing that the testimony of the official is necessary to prevent injustice to the party requesting it.”[9] The First District cited to the reasoning that the officials, whose past conduct could potentially implicate them in a significant number of legal actions, have a legitimate interest in avoiding “unnecessary entanglements in civil litigation,” which continues upon leaving office.[10] The court then cited to the United States v. Wal-Mart Stores, Inc., No. CIV.A. PJM-01-CV-152, 2002 U.S. Dist. LEXIS 6929 (D. Md. Mar. 29, 2002), case in which it was held that the “apex doctrine” should apply with equal force in situations where depositions of former high-ranking government officials are sought, reasoning that “[s]ubjecting former officials decision-making processes to judicial scrutiny and the possibility of continued participation in lawsuits years after leaving public office would serve as a significant deterrent to qualified candidates for public service.”[11] The court further reasoned that if it were to permit officials to be subject to depositions when their terms of office ended, public servants should expect a mailbag of deposition subpoenas on the day they leave office.[12] Thus, the Wal-Mart court concluded that a party seeking to depose a former high-ranking government official must demonstrate the personal involvement of the official in a material way or the existence of extraordinary circumstances.[13]

The First District concluded by agreeing with the courts in Arnold Agency and Wal-Mart Stores, Inc., that the rule proscribing that agency heads and other high-ranking officials should not be compelled to testify unless it has been established that the testimony to be elicited is necessary, relevant, and unavailable from other sources was equally applicable to former agency heads and high-ranking officials in circumstances involving past official conduct.[14] The court emphasized that, not only would subjecting former officials to depositions without satisfying the necessary requirements be unduly burdensome for the officials, but that it could also, as the court in Wal-Mart Stores explained, serve as a significant deterrent to qualified candidates seeking public service positions.[15] Accordingly, the court granted the petition, quashed the trial court’s order, and remanded for the trial court to determine whether the testimony to be elicited from Mr. Horne was necessary, relevant, and unavailable from another source.[16]

The Fourth District Court of Appeal addressed the “apex doctrine” in Citigroup Inc. v. Holtsberg, 915 So. 2d 1265 (Fla. 4th DCA 2005). In that case, the plaintiffs sued the defendants for the lost value of their investments arising from allegedly misleading financial statements.[17] In the course of discovery, the plaintiffs sought to take the depositions of Citigroup’s former chief executive officer and chairman of its board at the time, Sanford I. Weill, and its chief executive officer at the time, Charles O. Prince.[18] The defendants moved for a protective order arguing that it was a harassment attempt, as neither individual had firsthand knowledge of the facts of the case.[19] The defendants further argued that, before the plaintiffs could depose Citigroup’s high-level executives, they had to demonstrate that those persons had unique or special knowledge of the facts at issue and that the plaintiffs had exhausted a less burdensome avenue of obtaining the information sought.[20] The defendants contended the First District Court of Appeal, in Department of Agriculture and Consumer Services v. Broward County, 810 So. 2d 1056, 1057 (Fla. 1st DCA 2002), had already recognized the “apex doctrine.”[21]

In response, the plaintiffs argued that the “apex doctrine” had not been expressly adopted in Florida, and that in Texas, where it was adopted, the party seeking the protective order must file the affidavit of the officials sought to be deposed, denying knowledge of the facts.[22] The plaintiffs further cited to a Florida Bar Journal article for the proposition that such an affidavit must be attached to the motion for protective order in Florida, and further argued that a rigid rule like the “apex doctrine” contravenes Fla. R. Civ. P. 1.310(a), and Plantation-Simon, Inc. v. Bahloul, 596 So. 2d 1159 (Fla. 4th DCA 1992), which held that a tenant could notice a deposition of the president of the landlord’s corporate general partner and was not limited to a procedure in which the landlord partnership would decide which officer would testify for it.[23] The plaintiffs went on to contend that, in order to prove Citigroup’s liability, it was necessary for the plaintiffs to prove that Prince and Weill were intimately involved in the alleged misleading statements and that they were the only ones who could speak to Citigroup’s motive and intent, thus rendering the conduct and knowledge of these two individuals relevant to the dispute.[24] In addition to relying on factual matters detailing the relationship between Prince, Weill, and the stock analyst, Jack Grubman, the plaintiffs argued that the “apex doctrine” was not accepted in Florida because it was arbitrary and that, to avoid being deposed, Prince and Weill had to show undue burden or harassment, and that they had shown neither.[25]

In beginning its analysis, the court noted that the defendants were relying on Department of Agriculture and Consumer Services and Horne.[26] However, the court noted that both of these cases arose in a governmental, rather than corporate, context.[27] The court went on to quote the First District Court of Appeal in Department of Agriculture and Consumer Services, and stated:

We agree with the department that the ALJ [administrative law judge] abused his discretion in denying the motion for protective order. In circumstances such as these, the 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. To hold otherwise would, as argued by the department, 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.[28]

The Fourth District then went on to explain that, in Horne, the First District held that Department of Agriculture and Consumer Services applied to former as well as current government officials because, to rule otherwise, would discourage people from accepting positions as public servants.[29] The court then went on to explain that, in granting relief and exercising its certiorari jurisdiction in Department of Agriculture and Consumer Services and Horne, the First District apparently concluded that an undue burden or harassment had been shown.[30] The court then emphasized that the subject motion for protective order did not allege any particularized burden or harassment would result to Prince or Weill if their depositions were taken, and no evidence was presented to the trial court that such burden or harassment would result.[31]

The Fourth District then addressed the defendants’ argument that the “apex doctrine” applied to prevent the depositions.[32] The court explained that the “apex doctrine,” expressly adopted in some jurisdictions, protects the top officers of a corporation from being deposed without a showing that they have unique or special knowledge of the events in question and that the party seeking the deposition is unable to obtain the information using less intrusive means.[33] The court then cited to the Texas Supreme Court’s statements in Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex. 1995):

When a party seeks to depose a corporate president or other high-level corporate official and that official (or the corporation) files a motion for protective order to prohibit the deposition accompanied by the official’s affidavit denying any knowledge of relevant facts, the trial court should first determine whether the party seeking the deposition has arguably shown that the official has any unique or superior personal knowledge of discoverable information. If the party seeking the deposition cannot show that the official has any unique or superior personal knowledge of discoverable information, the trial court should grant the motion for protective order and first require the party seeking the deposition to attempt to obtain the discovery through less intrusive methods. Depending upon the circumstances of the particular case, these methods could include the depositions of lower level employees, the deposition of the corporation itself, and interrogatories and requests for production of documents directed to the corporation. After making a good faith effort to obtain the discovery through less intrusive methods, the party seeking the deposition may attempt to show (1) that there is a reasonable indication that the official›s deposition is calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate. If the party seeking the deposition makes this showing, the trial court should modify or vacate the protective order as appropriate. As with any deponent, the trial court retains discretion to restrict the duration, scope and location of the deposition. If the party seeking the deposition fails to make this showing, the trial court should leave the protective order in place. [34]

The Fourth District then noted that no reported Florida appellate court opinion had expressly adopted the apex doctrine.[35] The court explained that a district court of appeal cannot adopt a doctrine that arguably conflicts with the discovery rules, as discovery rules are rules of practice and procedure over which only the Florida Supreme Court has authority.[36] The court highlighted that the discovery rules do not contain a requirement that a party must show that a high-level officer has unique or superior knowledge before the officer can be deposed.[37] In contrast, the court explained that trial courts have broad discretion in overseeing discovery and in protecting persons from whom discovery is sought.[38] The court, citing to Rule 1.280(c), explained that if good cause is shown, the court can prohibit or limit discovery in order to protect a person or party from annoyance, embarrassment, oppression, or undue burden or expense.[39]

Notably, the court distinguished Department of Agriculture and Consumer Services and Horne by explaining that both of those cases arose in the governmental context, where there are policy arguments in support of the adoption of the apex doctrine, such as not discouraging people from accepting positions as public servants, which are not applicable in the corporate context.[40] The court then asserted that, even if the apex doctrine were to apply, the subject petition for writ of certiorari was deficient because the motion for protective order was not accompanied by affidavits of Prince and Weill denying knowledge of the relevant facts.[41] The court highlighted that the defendants had the burden to prove Prince and Weill had no relevant knowledge.[42] The court stressed that Prince and Weill’s conduct and knowledge were highly relevant to the alleged fraudulent scheme that the analyst gave dishonest stock analyses to profit himself and the defendants.[43] In denying the petition, the court cited Adam M. Moskowitz’s Florida Bar Journal article, “Deposing ‘Apex’ Officials in Florida: Shooting Straight for the Top,” by stating: “[C]ourts should not hesitate to deny protection if it appears that the apex official has personal knowledge of the relevant claims at issue or if the motivations behind corporate actions are at issue.”[44]

Many other courts have discussed requests for protective orders of high-ranking officials, in both the governmental and corporate context, and the potential application of the apex doctrine.[45]

Suzuki, Adoption of the Apex Doctrine in the Corporate Context, and the Creation of Rule 1.280(h)

The case, Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107, 1109 (Fla. 1st DCA 2019), found itself before the First District Court of Appeals in 2019. The case involved products liability claims arising out of an alleged brake failure in connection with a motorcycle crash.[46] In the course of discovery, the plaintiff sought a letter rogatory from the trial court seeking to take the examination of the chairman of the board of Suzuki Motor Corporation in Japan.[47] Suzuki objected to the requested deposition, and took the position that its top-level corporate manager should not be subject to examination when others within the corporation could testify to relevant issues.[48] Suzuki also filed a declaration from Mr. Suzuki stating that he had “no independent memory” of reviewing or signing the document regarding the brake issue and “no personal knowledge” of the details.[49] After a hearing, the trial court granted the motion for a letter rogatory.[50] The trial court found that the apex doctrine had not been applied outside the governmental context and could not be applied to Mr. Suzuki.[51] The trial court further found that Mr. Suzuki had personal involvement in the dispute and could uniquely provide case-relevant information due to his personal involvement with the brake issue.[52] Suzuki then filed a petition for writ of certiorari asserting that the trial court’s order granting the letter rogatory violated the apex doctrine.[53] The First District Court of Appeal began its analysis by explaining that the problem with Suzuki’s argument was that the apex doctrine had only been clearly established in Florida in the government context, with respect to high-ranking officials.[54] The court, again, cited to its prior reasoning in asserting “that the government context is distinguishable [from the corporate context] because of separation of powers concerns.”[55] Thus, the court elaborated “and so, it follows that because the apex doctrine hasn’t been adopted in the corporate context, 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.”[56]

The court went on to highlight that because Mr. Suzuki’s deposition was reasonably calculated to lead to the discovery of admissible evidence, the court was powerless to quash the trial court’s order.[57] The court emphasized that on certiorari, a district court should grant a petition “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.”[58] The court noted that it was mindful that trial courts have broad discretion in overseeing discovery and in protecting persons from whom discovery is sought.[59] The court referenced the trial court’s order citing specific evidence supporting its conclusion that Mr. Suzuki was personally involved with the recall-related corporate documents and was uniquely able to provide relevant information.[60] With such documentary support underlying the trial court’s ruling, the appellate court was unwilling to conclude the trial court departed from the essential requirements of law, as other trial courts had when allowing depositions of high ranking officials where the depositions were not reasonably calculated to lead to the discovery of admissible evidence.[61] On November 22, 2019, the First District Court of Appeal, in granting Suzuki’s motion for certified question, certified the following question as one of great public importance:[62]

Does a trial court depart from the essential requirements of law by not requiring a party seeking to depose the top officer of a corporation to show that (1) other means of discovery have been exhausted and (2) the corporate officer is uniquely able to provide relevant information that cannot be obtained from other sources? Stated differently, does a departure from the essential requirements of law occur when the so-called apex doctrine, which applies to governmental entities, See, e.g., Fla. Office of Ins. Regulation v. Fla. Dep’t of Fin. Servs., 159 So. 3d 945, 950 (Fla. 1st DCA 2015), is not applied to a corporation?

The Florida Supreme Court accepted jurisdiction and began its analysis by providing a brief summary of the First District’s decision.[63] The court noted the First District 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.”[64] After summarizing the First District’s analysis, along with the dissenter, the court explained that although it initially granted Suzuki’s petition to review the First District’s decision, in an order issued concurrently with the opinion, it was exercising its discretion to discharge jurisdiction.[65]

The court substantively began by explaining that its approach to determine whether to adopt the apex doctrine in the corporate context was framed by three considerations: 1) the Florida Rules of Civil Procedure generally take a permissive approach to the availability of discovery; 2) the Florida Rules of Civil Procedure’s 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 3) rather than limit high-level government officers to the generic protection of Rule 1.280(c), district courts in Florida have enforced the apex doctrine in the government context.[66] The court then noted that preventing harassment and unduly burdensome discovery has always been at the heart of the apex doctrine, and served as the rationale for the First District’s analysis in both Broward County and Habegger and General Star Indemnity Co. v. Atlantic Hospitality of Florida, LLC, 57 So. 3d 238 (Fla. 3d DCA 2011).[67] The court declared: “[O]ver the years, varied government officers in Florida have benefited from the apex doctrine.”[68]

The court then emphasized that the efficiency and anti-harassment principles animating the apex doctrine were equally compelling in the private sphere.[69] In citing cases from the Northern District of California and the Southern District of Florida standing for the proposition that high-ranking officials are subject to harassing and abusive depositions, the court explained that it saw no good reason to withhold from private officers the same protection that Florida courts have long afforded government officers.[70] The court emphasized the apex doctrine “in no way creates a blanket prohibition on the taking of a deposition of a high-ranking corporate official.”[71] The court explained that the point of the apex doctrine is to balance the competing goals of limiting potential discovery abuse and ensuring litigants’ access to necessary information.[72] The court declared, properly applied, the apex doctrine “will prevent undue harassment and oppression of high-ranking officials while still providing a [party] with several less-intrusive mechanisms to obtain the necessary discovery, and allowing for the possibility of conducting the high-level deposition if warranted.”[73]

The court explained its belief that it was in Florida’s best interests to codify the apex doctrine in the rules of civil procedure and to apply the doctrine to both private and governmental officers.[74] The court emphasized that making the change as a rule amendment ensured consistency across the two contexts and allowed the court to define and explain the apex doctrine as clearly as possible.[75] With that, the court adopted the new Rule 1.280(h), which states: [76]

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 if 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 his 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.

The court then explained the key aspects of the rule by first noting that 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.”[77] The court stated that, when the 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.[78] The court noted that, if the requirement is not satisfied, the would-be deponent cannot claim the benefit of the rule.[79]

The court then explained that it did not think it was feasible or desirable to codify a definition of “high-level government or corporate officer.”[80] The court stated that trial courts should use past caselaw, combined with standard rules of construction when interpreting an undefined term in a statute or rule, when interpreting or analyzing the term “high-ranking government or corporate officer.”[81] The court then noted that courts generally extend the protection of the apex doctrine to former high-level officers, and further noted 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.”[82] Next, the court declared that requiring an affidavit or declaration was essential to the proper functioning of the rule in both contexts.[83] The court then emphasized the requirement that the officer “explain” the lack of unique, personal knowledge of the issues being litigated, so the court, and the other side, are in a position to be able to evaluate the facial plausibility of the officer’s claimed lack of unique, personal knowledge.[84] After an explanation of the varying burdens, the court concluded by clarifying that the newly adopted rule, 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.[85] The court highlighted that Rule 1.280(h) is not governed by the “good cause” standard of Rule 1.280(c), and that the newly created rule imposes burdens of production and persuasion that are distinct from the burdens at play in Rule 1.280(c).[86] Finally, the court ended by noting that 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).[87]

Conclusion

There has long been uncertainty in Florida regarding the application of the apex doctrine in the corporate context. The Florida Supreme Court has resolved the uncertainty. In Florida, the apex doctrine now applies in both the government and corporate context. If faced with a request to take the deposition of a high-ranking officer, or if on the side requesting said deposition, one should carefully review and analyze the newly created Rule 1.280(h), while keeping in mind that the protections of Rule 1.280(c), remain available, regardless of whether Rule 1.280(h) is utilized.

[1] Suzuki Motor Corporation v. Winckler, 284 So. 3d 1107, 1109 (Fla. 1st DCA 2019).

[2] Horne, 901 So. 2d at 239.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at 240 (citing State, Department of Health and Rehabilitative Services v. Brooke, 573 So. 2d 363, 371 (Fla. 1st DCA 1991) (quoting Halderman v. Pennhurst State Sch. & Hosp., 559 F. Supp. 153, 157 (E.D. Pa. 1982)).

[7] Horne, 901 So. 2d at 240 (quoting Department of Agriculture and Consumer Services, 810 So. 2d at 1058).

[8] Id.

[9] Id. (citing Arnold Agency, 526 S.E. 2d at 830 (quoting Paige v. Canady, 475 S.E. 2d 154, 162 (W. Va. 1996)).

[10] Id. (quoting Arnold Agency, 526 S.E. 2d at 830).

[11] Id. at 241 (quoting Wal-Mart Stores, Inc., 2002 U.S. Dist. LEXIS 6929, at 3).

[12] Id. (quoting Wal-Mart Stores, Inc., 2002 U.S. Dist. LEXIS 6929, at 3).

[13] Id. (citing Wal-Mart Stores, Inc., 2002 U.S. Dist. LEXIS 6929, at 3); see also Energy Capital Corp. v. United States, 60 Fed. Cl. 315, 318 (Fed. Cl. 2004) (concluding that it is clear that in the context of deposing former high-ranking government officials, depositions are allowed if the party has personal knowledge of the facts in issue); compare Sanstrom v. Rosa, No. 93 Civ. 7146, 1996 U.S. Dist. LEXIS 11923, at 5 (S.D. N.Y. Aug. 16, 1996) (concluding that the former governor could not claim the “privilege” that would require the opposing side to show both the need for his deposition and that it would hinder governmental functions)).

[14] Horne, 901 So. 2d at 241.

[15] Id.

[16] Id.

[17] Citigroup Inc. v. Holtsberg, 915 So. 2d 1265, 1267 (Fla. 4th DCA 2005).

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id. at 1267-68.

[25] Id. at 1268.

[26] Id.

[27] Id.

[28] Id. (quoting Department of Agriculture and Consumer Services and Horne, 810 So. 2d at 1058).

[29] Holtsberg, 915 So. 2d at 1268 (citing Horne, 901 So. 2d at 240-41).

[30] Id. at 1269.

[31] Id.

[32] Id.

[33] Id. (citing Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex. 1995)).

[34] Holtsberg, 915 So. 2d at 1269 (citing Crown, 904 S.W.2d at 128) (emphasis in original).

[35] Id. at 1269.

[36] Id. (citing Fla. Const. art. V, §2(a)).

[37] Holtsberg, 915 So. 2d at 1269-70 (citing Fla. R. Civ. P. 1.280(b)(1) (allowing a party to discover any matter that is not privileged and is relevant to the subject matter of the pending action or appears reasonably calculated to lead to the discovery of admissible evidence).

[38] Id. at 1270 (citing Fla. R. Civ. P. 1.280(c); Rojas v. Ryder Truck Rental, Inc., 641 So. 2d 855, 857 (Fla. 1994)).

[39] Id. at 1270.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id. (quoting Moskowitz, Deposing “Apex” Officials in Florida, 72 Fla. B. J. 10 (Dec. 1998)).

[45] See Dep’t of Agric. & Consumer Servs. v. Broward County, 810 So. 2d 1056 (Fla. 1st DCA 2002) (finding that the department of agriculture and consumer services was entitled to a protective order after the challengers of a proposed rule noticed the department commissioner for deposition and the department offered the deputy commissioner as a substitute and holding that “in circumstances such as these, the 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”); Miami Dade Coll. v. Del Pino Allen, 271 So. 3d 1194 (Fla. 3d DCA 2019) (finding that trial court departed from essential requirements of law when it denied college’s motion for protected order, which sought to prevent the former employee from deposing the college president, because the former employee had not shown that she had exhausted all other discovery tools in an attempt to obtain the information she sought from the president or that the information was necessary and unavailable from another source); Fla. Office of Ins. Regulation v. Fla. Dep’t of Fin. Servs., 159 So. 3d 945 (Fla. 1st DCA 2015) (“The time spent preparing and testifying in this case will take away from the Insurance Commissioner’s duties and responsibilities as an agency head for the state of Florida, and the precedent served by compelling him to testify will create a ‘significant deterrent to qualified candidates seeking public service positions.’’); Remington Lodging & Hosp., LLC v. Southernmost House, LTD., 206 So. 3d 764, 765 n. 1 (Fla. 3d DCA 2016) (“No Florida appellate decision has adopted the apex doctrine.”); Racetrac Petroleum, Inc. v. Sewell, 150 So. 3d 1247, 1251 n. 8 (Fla. 3d DCA 2014) (“The parties stipulate that Florida has not adopted the ‘apex doctrine.’”); Gen. Star Indem. Co. v. Atl. Hosp. of Fla., LLC, 57 So. 3d 238, 239 n.3 (Fla. 3d DCA 2011) (noting “this Court has not expressly adopted the ‘apex doctrine,’” and declining to apply the apex doctrine to corporate officers but recognizing that the doctrine has been applied in Florida “in cases involving the deposition of senior state governmental officers.”); Miami-Dade County v. Dade County Police Benevolent Ass’n, 103 So. 3d 236 (Fla. 3d DCA 2012) (applying the apex doctrine on certiorari to review an order requiring the mayor of Miami-Dade County to testify in an unfair labor practice proceeding).

[46] Suzuki, 284 So. 3d at 1108.

[47] Id.

[48] Id.

[49] Id. at 1108-09.

[50] Id. at 1109.

[51] Id.

[52] Id.

[53] Id.

[54] Id. (citing Broward County, 810 So. 2d 1058; Horne, 901 So. 2d at 241; Fla. Dep’t of Fin. Servs., 159 So. 3d at 951; Remington Lodging & Hosp., LLC, 206 So. 3d at 765 n. 1).

[55] Winckler, 284 So. 3d at 1109 (quoting Fla. Dep’t of Fin. Servs., 159 So. 3d at 951).

[56] Id. at 1109.

[57] Id. (citing Fla. R. Civ. P. 1.280(b)(1) (allowing a party to discover any matter that is not privileged and is relevant to the subject matter of the pending action or appears reasonably calculated to lead to the discovery of admissible evidence)).

[58] Id. at 1110 (quoting Combs v. State, 436 So. 2d 93, 95-97 (Fla. 1983)); see also Jones v. State, 477 So. 2d 566, 569 (Fla. 1985) (Boyd, C.J., concurring specially) (noting that a “departure from the essential requirements of law…means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.”).

[59] Winckler, 284 So. 3d at 1110.

[60] Id.

[61] Id. (citing Habegger and General Star Indemnity Co. v. Atlantic Hospitality of Florida, LLC, 57 So. 3d 238 (Fla. 3d DCA 2011)).

[62] Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107, 1114-15 (Fla. 1st DCA 2019).

[63] In re: Amendment to Fla. Rule of Civ. Procedure 1.280, 324 So. 3d 459 (Fla. 2021).

[64] Id.

[65] Id. at 459-60.

[66] Id. at 460.

[67] Id.

[68] Id. at 460-61.

[69] Id. at 461.

[70] Id. (citing Celerity, Inc. v. Ultra Clean Holding, Inc., No. C 05-4374, 2007 WL 205067, at *3 (N.D. Cal. Jan. 25, 2007); Brown v. Branch Banking & Trust Co., No. 13-81192-CIV, 2014 WL 235455, at *2 (S.D. Fla. Jan. 22, 2014)).

[71] In re: Amendment to Fla. Rule of Civ. Procedure 1.280, 324 So. 3d at 461 (quoting Sanders, 724 S.E. 2d at 364).

[72] Id.

[73] Id. (quoting Liberty Mut. Ins. Co. v. Superior Ct., 13 Cal. Rptr. 2d 363, 367-68 (Cal. Ct. App. 1992)).

[74] Id.

[75] Id.

[76] Id.

[77] Id.

[78] Id. at 462.

[79] Id.

[80] Id.

[81] Id.

[82] Id. (quoting American Heritage Dictionary 1223 (5th ed. 2011)).

[83] Id.

[84] Id. at 463.

[85] Id.

[86] Id.

[87] Id.

Matthew B. DevisseMatthew B. Devisse is an attorney with Coleman Yovanovich & Koester, P.A., in the trial, arbitration, and appellate practice groups. He focuses his practice on complex commercial litigation to include high-end real estate development litigation, business and shareholder disputes, construction-related litigation, and trust and probate litigation. Devisse handles trials and appeals throughout Florida, primarily focusing on high-end business disputes. He received his J.D. from the University of Florida.

 

Edmond E. Koester is the chair of Coleman, Yovanovich & Koester, P.A.’s trial, arbitration, and appellate practice groups. He has a wealth of trial experience and appellate experience, and is board certified in business litigation by The Florida Bar, and AV Preeminent Peer Review Rated by Martindale-Hubbell. Koester received his J.D. from Florida State University.