In re Amendment to Fla. Rule of Civil Procedure 1.280

324 So.3d 459 (Mem)

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

No. SC21-929

Supreme Court of Florida.

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 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 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 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 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.

This rules case allows us to decide 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 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 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 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) (citation omitted). 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 the necessary discovery, and allowing for the possibility of conducting the high-level deposition if warranted." Liberty Mut. Ins. Co. v. Superior Ct. , 10 Cal.App.4th 1282, 13 Cal. Rptr. 2d 363, 367-68 (1992).

III.

We believe 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 contexts⁴ and to define and explain the apex doctrine as clearly as possible.

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 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 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...