FL Supreme Court Extends “Apex Doctrine” to Private Sector
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The Florida Supreme Court, on its own motion, has acted to protect corporate officers from abusive discovery by adopting the “apex doctrine” in an amendment to Florida Rule of Civil Procedure 1.280. The change is effective immediately and applies to pending cases.
Previously, the apex doctrine was clearly established in Florida for high-ranking government officials. New Rule 1.280(h) extends the doctrine to corporate officers, including former officers. The Florida Supreme Court explains, “We see no good reason to withhold from private officers the same protection that Florida courts have long afforded government officers.” The doctrine prevents unjustified discovery of government and corporate officers for no legitimate reason.
The new rule provides:
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.
Because the amendment was not published for comment before its adoption, the Florida Supreme Court has invited interested persons to file comments within 75 days from the date of the August 26, 2021, opinion.
The amendment builds on another recent decision by the Florida Supreme Court to largely replace the text of Florida’s summary judgment rule (Florida Rule of Civil Procedure 1.510) with the text of Federal Rule of Civil Procedure 56.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at [email protected].
Partner and Co-Chair, Public Policy Group, Shook Hardy & Bacon LLP
Mark Behrens co-chairs Shook's Washington, DC-based Public Policy Practice Group and is a leading national expert on civil justice issues with over thirty years of experience. A substantial part of his practice is working to improve the civil litigation environment through state and federal legislation; in the courts through amicus curiae briefs; through legal scholarship and judicial education; and in the court of public opinion.
Mark is actively involved in civil justice reform efforts at the federal and state levels. He has testified before the U.S. Congress and most state legislatures on behalf of business and civil justice organizations. Mark also has an active amicus brief practice specializing in tort liability and civil justice issues. He has authored or co-authored over 150 amicus briefs in cases before the United States Supreme Court and federal and state appellate courts on behalf of business, civil justice, and defense lawyer organizations. In addition, Mark routinely files comments on behalf of business, civil justice, and defense lawyer organizations regarding potential changes to federal and state court rules. He chairs the International Association of Defense Counsel’s (IADC) Civil Justice Response Committee and serves on the Board of Directors of Lawyers for Civil Justice (LCJ).
Mark is a member of the American Law Institute (ALI). He received his J.D. in 1990 from Vanderbilt University Law School, where he was a member of the Vanderbilt Law Review. He received his B.A. in economics from the University of Wisconsin in 1987.
Assistant Solicitor General, Texas
Katie serves as an Assistant Solicitor General for the State of Texas. She previously practiced law at a firm in Washington, D.C. where she focused her legal practice on complex trial and appellate litigation, specializing in data privacy and biometric issues. Before that, Katie served as Chief Counsel to Senator Jeff Flake at the U.S. Senate Judiciary Committee and clerked for Judge Michael B. Brennan of the U.S. Court of Appeals for the Seventh Circuit. Katie graduated from Liberty University and the Antonin Scalia Law School at George Mason University. She is a member of The Federalist Society’s Litigation Practice Group Executive Committee.