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.
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