tHeapexDoctrineanDtHeDeponent labor & employment law Section Chairs : AmandaBiondolino – SassLawFirm & LaKishaKinsey-Sallis – Fisher & PhillipsLLP
inaugust2021 , the apexDoctrinewas formallycodifiedwith theamendmentof Floridaruleofcivil procedure1.280 .
Often there is a legitimate need to obtain evidence via the deposition testimony of a high-ranking corporate or public official . However , to prevent discovery abuse and the harassment of upper-level executives , the Apex doctrine stands for the proposition that current or former executives ( or government officials ) of a company cannot be compelled to appear for a deposition , unless it can be demonstrated that they have some unique , personal knowledge of the facts in the lawsuit . For example , the Apex doctrine may be used to shield the president of a large corporation from having to sit for a deposition because their remoteness from the relevant events would render any personal knowledge improbable . Another goal of the doctrine is to minimize distraction by preventing officials from being subjected to various depositions instead of performing management duties . In August 2021 , the Apex doctrine was formally codified in Florida with the amendment of Florida Rule of Civil Procedure 1.280 .
High ranking officials who lack unique , personal knowledge of the issues are entitled to certain discovery protection under the Apex doctrine in actions filed in both federal and state courts .
Nevertheless , a party seeking a protective order under the Apex doctrine codified in Florida Rule of Civil Procedure 1.280 ( h ) must file an affidavit that explains that the officer " lacks unique , personal knowledge of the issues being litigated .” Karisma Hotels & Resorts Corporation Ltd . v . Hoffman , Case No . 4d22-729 ( Fla . 4th dCA 2022 ).
A recent Second district opinion more thoroughly explored the contours of the Apex Doctrine : DecisionHR USA , Inc . v . Mills , Case No . 2d21-3468 ( Fla . 2nd dCA 2022 ). This decision addressed the burdens of persuasion imposed by Rule 1.280 ( h ) upon the litigants . The rule expressly delineates the applicable burdens of persuasion to resolve disputes amongst the parties . Foremost , the party resisting the deposition must establish whether the deponent occupies a high-level position , and produce an affidavit negating unique , personal knowledge . In DecisionHR , the court utilized the operative complaint to establish the “ facts at issue in the litigation ” and required the presence of specific allegations in the complaint to justify deposition testimony from an apex deponent . Allegations of a tenuous connection to the events , or stray communications , would be
deemed insufficient to establish a meaningful link . Any affirmative defenses would likewise need to provide a concrete connection with the deponent .
Rule 1.280 ( h ) unambiguously shifts the burden by requiring the party seeking the deposition to exhaust other less intrusive methods of discovery to advance litigation before finding that such discovery is inadequate . A court may also issue protective orders to limit both the time and scope of any deposition testimony . Another important consideration is the timing of the deposition . A deposition sought at the outset of the case , or near the close of discovery could be determinative — especially if other discovery lends itself to analyzing proportionality or avoiding duplicative discovery . Nevertheless , the Apex doctrine should not discourage practitioners from seeking appropriate discovery since high level officials are often instrumental in the creation and implementation of institutional policies . n
Author : Derek P . Usman – The Usman Law Firm , P . A .
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