PERSONAL INJURY CORNER
Florida Adopts the Apex Rule
TED BABBITT
On its own motion and without the benefit of discussion with the Florida Civil Rules Committee the Supreme Court has adopted a rule change which changes the procedure with respect to the ability of a party to depose a present or former high-level employee . Florida thus joins only four other states who have adopted the so-called Apex rule precluding the taking of the deposition of a high-level employee unless , the deposing party is able to get around restrictions built into the new rule .
This is not the first time that the issue of adoption of the Apex doctrine has come before the Courts of Florida . In a case which I handled , Citigroup , Inc . v . Holtsberg , 920 So . 2d 25 ( Fla . 4th DCA 2005 ) Holtsberg along with twenty-five ( 25 ) co-Plaintiffs sued Citigroup alleging fraud on the part of their analyst , Jack Grubman relative to investments in MCI WorldCom . Plaintiffs claimed that they lost the value of their investments when WorldCom went bankrupt in 2002 allegedly because Grubman had issued false reports concerning WorldCom ’ s value .
Plaintiffs subpoenaed for deposition Sanford Weill , Citigroup ’ s former chief Executive Officer and then current Chairman of the Board and Charles O . Prince then Citigroup ’ s CEO . Defendants moved for protective order arguing that the Apex doctrine should apply because both Prince and Weill were high level executives and that plaintiffs should be required to show that they had unique or special knowledge of the facts and that plaintiff had exhausted less burdensome methods of obtaining information . The protective order was denied by the Circuit judge after plaintiffs pointed out that the Apex Rule had not been adopted in Florida and that plaintiffs could show that Prince and Weill , as upper management , were intimately involved in Grubman ’ s conduct in making the allegedly misleading statements .
The Fourth District agreed that no reported
Florida Appellate opinion had expressly adopted the Apex doctrine and that a District Court of Appeals could not adopt a doctrine which conflicted with the discovery rules and that only the Supreme Court could adopt such a change . Florida ’ s discovery rules did not contain a requirement that a party show that a high level officer had a unique or superior knowledge before being subject to being deposed . In addition , the defendant ’ s motion was not accompanied by an affidavit that would have been required under the Apex doctrine to show that Weill and Prince had no relevant knowledge and plaintiff ’ s alleged that Grubman gave a dishonest analysis to profit himself as well as the Defendant and that this could only be established by someone who could testify to Citigroup ’ s own intent and that would be its senior officer ’ s Weill and Prince . The petition for certiorari was denied .
On August 26 , 2021 , the Supreme Court of Florida in Case No . SC21-929 took the position that prior District Court of Appeal opinions had applied what amounts to the Apex doctrine to governmental employees but agreed that such a doctrine , had never been applied in the private sphere . While the issue arose in a case involving the president of Suzuki the court chose not to make the adoption of the Apex doctrine a part of that case and instead on its own Motion changed the Rules of Civil Procedure to adopt the Apex doctrine on Florida . The Court thus amended the Rules to add the Florida Rules of Civil Procedure Rule 1.280 ( h ) as follows :
“ 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 highlevel for purposes of this rule lies with the person or party opposing the deposition .”
The Court held that the amended rule became effective immediately upon the issuance of its opinion and provided Seventy-five ( 75 ) days from the date of the opinion for interested persons to file comments with the court but the rule took effect not withstanding those comments . Justice Labarga dissented pointing out that out of the fifty ( 50 ) states only four ( 4 ) other than Florida have adopted the Apex doctrine . Five ( 5 ) other states with Rules of Procedure almost identical to Florida ’ s have rejected it . Justice Labarga pointed out that Florida ’ s rules have many protections that avoid harassment or abusive depositions and that there was absolutely no need for special protections for high level employees . Justice Labarga also pointed out that built into the rule were many potential delays and that far from meeting the Court ’ s goal of making discovery more efficient this rule would make it far more complicated and time consuming .
The trouble with the Supreme Court adopting a rule on its own motion outside of litigation is that it avoids the microscope that is present when parties litigate an issue . In addition , the timehonored principle in Florida is to have the Rules of Civil procedure committee do the necessary research and discussion which would reveal any problems with a rule change . All of that is absent when the Supreme Court adopts a rule on its own .
PBCBA BAR BULLETIN 13