In Re: Amendment to Florida Rule of Civil Procedure 1.280 ( 2021 )


Menu:
  •           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
    officers.
    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
    [No Change]
    - 24 -