The Apex Doctrine: How It Can Protect You
By Josef B. Hess
The Florida Supreme Court recently expanded the application of the Apex Doctrine to protect high-level corporate officers from depositions when they don’t have unique, first-hand personal knowledge of the issues being litigated.
Originally, the Apex Doctrine only protected high-level government officials. Now, the Florida Supreme Court has extended its protections to the private sector by codifying the Apex Doctrine as subsection (h) within Rule 1.280, Florida Rules of Civil Procedure.
So what’s the rationale for the new rule? To prevent repetitive and unjustified discovery of lead corporate officers for no legitimate reason.
The Florida Supreme Court said, “[p]reventing harassment and unduly burdensome discovery has always been at the heart of that doctrine in our state.”
In other words, the Court has determined that a corporate officer should not be subject to a deposition unless the party seeking to depose that individual has exhausted other means of discovery.
How do parties institute the Doctrine?
The party seeking to protect a high-level officer has the initial burden to:
- Show that the would-be deponent meets the high-level officer requirement
- Produce an affidavit or declaration explaining the official’s lack of unique, personal knowledge of the issues being litigated
If this initial burden is met, then the burden shifts to the party seeking the deposition to persuade the court that:
- It has exhausted other discovery
- Such discovery is inadequate
- The officer has unique, personal knowledge of discoverable information
The burden ultimately lies with the deposition seeker, not the party seeking to avoid the deposition.
Determining whether a company’s senior executive employees qualify is a nuanced matter, to be analyzed on a case-by-case basis depending on the organizational structure of each company.
For 50 years, Rissman has delivered results for clients across numerous industries, all while protecting company officers from unduly burdensome discovery tactics. We deliver results by staying up to date on new avenues to best serve our clients.
Footnote: Amendment to Florida Rule of Civil Procedure 1.280 at 5, No. SC21-929 (Fla. 2021).
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