A Layer of New Protections from Deposition for both Private Sector and Public Sector High-Ranking Officials Via Rule 1.280(h)

On August 26, 2021, the Florida Supreme Court expanded and codified Florida’s Apex doctrine, as set forth in the newly-enacted Rule 1.280(h) of the Florida Rules of Civil Procedure, which now offers an additional layer of protection from depositions for high-level officials in both the public sector and the private sector.[1] The purpose of this newly enacted rule and the Apex doctrine is to prevent abuse or harassment of “high-level” officials through numerous or unnecessary depositions.[2]

Th newly-enacted Rule 1.280(h) offers “current or former high-level government or corporate officer[s]” additional protection from deposition.[3] When enacting this new rule, the Court reasoned that “the efficiency and anti-harassment principles animating [the apex] doctrine are equally compelling in the private sphere,” and that there is “no good reason to withhold from private officers the same protection that Florida courts have long afforded government officials.”[4]

Two-Part Test

To invoke Rule 1.280(h)’s apex doctrine, the party resisting deposition must satisfy the initial burden by proving both that: (1) the person to be deposed is a “high-level officer,” and (2) such person lacks unique, personal knowledge of the issues in litigation.[5]

1. What Is A “High-Level” Officer?

The Court opted against specifically explaining what makes an officer “high-level,” and instead noted that “there is a rich body of case law applying the term,” based on prior apex-doctrine cases.[6] The Court noted that it used the term “officer” in the generic sense as “one who holds an office of authority or trust in an organization, such as a corporation or government.”[7] The Court noted that the term “officer” is not restricted to only the legally-appointed officers of an organization. Instead, whether an individual is an “officer” depends on the officer’s organization and role within that organization.[8]

2. The Parties’ Burdens

To carry its burden on the second issue, the resisting party must submit an affidavit from the person to be deposed attesting to that person’s lack of “unique, personal knowledge of the issues being litigated.”[9] The would-be deponent must “explain” the relationship between the officer’s position and the facts being litigated.[10] The party’s affidavit should also include an explanation of why that relationship (or lack thereof) creates a lack of such information on the part of the official opposing the deposition. “Bald assertions of ignorance will not do.”[11]

If the resisting party meets its initial burden, the burden shifts to the “deposition-seeker” to persuade the Court that it has “exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information.”[12]

Notably, however, the Florida Supreme Court noted 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).[13]

Conclusion

In Florida, the apex doctrine now applies in both the government and corporate arena. If confronted with a request to depose your high-ranking officer/client, or if on the side of requesting said deposition, one should carefully review Rule 1.280(h), while mindful of the of the protections afforded by Rule 1.280(c).

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.