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Florida Adopts The Apex Doctrine

September 17, 2021

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<p style="text-align: justify;">Defendants have long complained about the bullying associated with abusive discovery, especially that of high-level corporate employees.</p>
<p style="text-align: justify;">Under the “Apex Doctrine,” high-level government and corporate employees are entitled to protection from deposition where the party opposing the deposition generally shows that; the witness lacks unique, first-hand knowledge of the facts at issue; and that other, less intrusive means of discovery have not been exhausted.</p>
<p style="text-align: justify;">In adding Rule 1.280(h) to Florida’s Rules of Civil Procedure, Florida’s Supreme adopted the “Apex Doctrine.” New Florida Rule of Civil Procedure 1.280(h) reads:</p>
<p style="text-align: justify;">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.</p>
<p style="text-align: justify;"><em>In re: Amendment to Fla. Rule of Civ. Procedure 1.280</em>, 2021 Fla. LEXIS 1395 | 2021 WL 3779161 (Fla. August 26, 2021).</p>
<p style="text-align: justify;">Fla. R. Civ. P. Rule 1.280(h) does not replace Rule 1.280(c)’s protections against abusive discovery; it is an alternative to Rule 1.280(c).</p>
<p style="text-align: justify;">New rule 1.280(h) is an alternative to rule 1.280(c) for use in the limited context of depositions of high-level government and corporate officers. The new rule is not governed by the ‘good cause’ standard of rule 1.280(c), and it imposes burdens of production and persuasion that are distinct from the burdens at play in rule 1.280(c). 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). <em>Id.</em></p>
<p style="text-align: justify;">The amendment is effective immediately, although the court did give interested parties 75 days to comment.</p>
Please contact <a href="mailto:CGeorge@wcmlaw.com">Charles "Chip" George</a> with any questions.

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