On August 26, 2021 the Florida Supreme Court issued an opinion amending Florida Rule of Civil Procedure 1.280. The opinion made a rather significant change to the common law “Apex Doctrine” by extending its reach to high-level corporate officers.
Before the Supreme Court issued its August 26 opinion, the Apex Doctrine, as applied in Florida, only applied to high-level government officials. Government official were protected from being deposed “unless and until the opposing parties have exhausted other discovery and can demonstrate that the high-level government official is uniquely able to provide relevant information which cannot be obtained from other sources.” The doctrine is historically rooted in the idea that agency heads should be free from harassment that hinders the efficient functioning of the agency and state government.
With the Court's recent opinion, high-level corporate officer are now given the same protections. However, it is important to note that new Rule 1.280(h) is not automatic. The corporate officer must first survive a few hurdles - a burden of persuasion and a burden of production. First, the corporate officer must persuade the court that the would-be deponent is actually a high-level officer. Second, the officer must produce an affidavit explaining the official’s lack of unique, personal knowledge of the issues being litigated. The Court held that, "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 the legal sense." (emphasis added). In Re: Amendment to Florida Rule of Civil Procedure 1.280, at 11.
The new Rule does not replace 1.280(c), which still allows a party to seek a protective order. "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) [Protective Order Motion]". In Re: Amendment to Florida Rule of Civil Procedure 1.280, at 14. This new Rule simply provides additional shelter for corporate officers if they can meet their burden.
The full text of new Rule 1.280(h) read as follows:
(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.