Most large companies take for granted that their highest-ranking executives will not be required to comply with deposition subpoenas related to regular business matters. For example, the Chairman of a Japanese company should not need to worry about giving a deposition in a personal injury case involving run-of-the-mill allegations of product liability, right? Because the Apex Doctrine bars such discovery in Florida state courts, right? Wrong. See Suzuki Motor Corp. v. Winckler, Case No. 1D18-4815, 2019 WL 4062353, 44 Fla. L. Weekly D2219a (Fla. 1st DCA Aug. 29, 2019).
Courts throughout the United States have recognized the Apex Doctrine for decades. The doctrine generally provides that a high-ranking executive should not be compelled to sit for deposition unless there is some good specific reason for it. The primary purpose of the doctrine is to prevent abusive discovery tactics that have no legitimate purpose other than to harass and impose unnecessary costs and inconvenience.
When the plaintiff in a personal injury case pending in Florida state court sought a letter rogatory to cause the issuance of a deposition subpoena to the Chairman of Suzuki Motor Corporation, the attorneys for Suzuki not surprisingly responded by objecting and seeking a protective order. Their objection argued, with a supporting affidavit, that the Chairman should not be subject to such a deposition because of the Apex Doctrine and the lack of any personal knowledge on the part of the Chairman regarding the matters at issue in the litigation (which involved the alleged failure of a motorcycle’s brakes). The trial court granted the letter rogatory, following which the attorneys for Suzuki appealed.
In rejecting Suzuki’s argument based upon the Apex Doctrine, the First District Court of Appeal explained that Florida has not yet adopted the doctrine outside the context of public agencies:
Suzuki Motor Corporation argues that the trial court’s order granting a letter rogatory violates the apex doctrine. The problem with its argument is that the doctrine is only clearly established in Florida in the government context, with respect to high-ranking government officials. The essence of Florida’s apex doctrine is that “[an] agency head should not be subject to deposition, over objection, unless and until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information which cannot be obtained from other sources.” Dep’t of Agric. & Consumer Servs. v. Broward Cty., 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002) (emphasis added). “[A] party seeking to depose a … high-ranking governmental official must demonstrate the personal involvement of the official in a material way or the existence of extraordinary circumstances.” Horne v. Sch. Bd. of Miami-Dade County, 901 So. 2d 238, 241 (Fla. 1st DCA 2005) (emphasis added). We highlight “agency head” and “governmental official” because we have noted before that “no Florida court has adopted the apex doctrine in the corporate context.” Fla. Office of Ins. Regulation v. Fla. Dep’t of Fin. Servs., 159 So. 3d 945, 951 (Fla. 1st DCA 2015); see also Remington Lodging & Hospitality, LLC v. Southernmost House, Ltd., 206 So. 3d 764, 765 n.1 (Fla. 3d DCA 2016). We emphasized in that case (though in dicta) “that the government context is distinguishable [from the corporate context] because of separation of powers concerns.” Id. And so, it follows that because the apex doctrine hasn’t been adopted in the corporate context, the trial court did not depart from the essential requirements of the law by refusing to apply this doctrine to Suzuki Motor Corporation’s corporate officer.
Suzuki Motor Corp., 2019 WL 4062353 *2 (emphasis original).
The majority opinion in Suzuki went on to discuss other discovery concepts, as well, such as whether the deposition was reasonably calculated to lead to the discovery of admissible evidence and the fact that trial courts have broad discretion in overseeing discovery and in protecting persons from whom discovery is sought, but the majority opinion concluded that the standard applicable to writs of certiorari—which require a showing of the violation of a clearly established principle of law—was not satisfied by Suzuki’s arguments.
For those looking for an explanation regarding how a Florida court could reject the well-entrenched Apex Doctrine, the certiorari standard provides such an explanation: perhaps the Suzuki majority opinion should be read as merely concluding that the Apex Doctrine is not yet black letter law in Florida with regard to non-governmental organizations. Thus, rather than rejecting the doctrine, the appellate court was perhaps merely pointing out that the doctrine cannot yet be used to reverse a trial court’s decision as part of certiorari review.
However, the dissenting opinion in Suzuki explained the reasons why the First District Court of Appeal should have taken the opportunity to decide the Apex Doctrine applies to all organizations, whether governmental or not. The dissent argued, in most pertinent part:
This case involves a tragic accident that resulted in catastrophic injuries. Nevertheless, I must respectfully dissent because the apex doctrine is and must be equally applicable in the private sector as it is in the governmental context. And even assuming the doctrine’s basis in the governmental context is grounded in the separation of powers under article II, section 3 of the Florida Constitution, see Fla. Office of Ins. Regulation v. Fla. Dept. of Financial Services, 159 So. 3d 945, 952 (Fla. 1st DCA 2015), the abusive discovery allowed here has no basis in law or fact and under traditional rules of relevancy, extraordinary relief must be granted. Allowing discovery not meant to ferret out the truth, but designed to create settlement pressures, threatens the proper operation of the commercial enterprise for no legitimate factfinding purpose.
To answer the question by stating that the trial court’s ruling cannot be a departure from law because no law recognizes the apex doctrine in the corporate context is no answer at all, because otherwise the doctrine could never be applied. That is precisely why Florida courts permit extraordinary review of improper discovery orders by writs of certiorari under Art. V, section 4(b)(3), Fla. Const.; Fla. R. App. P. 9.030 (b)(2)(A); Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94-95 (Fla. 1995). Here, we should grant the writ and quash the order.
To allow meritless discovery depositions of corporate leaders, who have provided sworn statements that they have no discoverable knowledge of the issue at hand, or that such information can be obtained from persons with less corporate responsibilities, is to allow illegitimate disruption in the private sector that is forbidden in the public sector. While the separation of powers certainly compels the application of the apex doctrine in the public sphere, the rationale of the doctrine is equally applicable in the private sphere: the courts cannot countenance unjustified discovery of lead corporate executives for no legitimate reason.
Other state and federal courts have applied the apex doctrine in the corporate context. Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., 310 F.R.D. 523, 527-29 (S.D. Fla. 2015) (prohibiting deposition of corporate co-founders); Alberto v. Toyota Motor Corp., 289 Mich.App. 328, 796 N.W. 2d 490, 497 (2010) (prohibiting depositions of Toyota executives in products-liability case where executives possessed no more than “generalized knowledge of Toyota’s unintended acceleration problems”); State ex rel. Mass. Mut. Life Ins. Co. v. Sanders, 228 W.Va. 749, 724 S.E.2d 353, 364 (2012) (cited above); Liberty Mut. Ins. Co. v. Superior Court, 10 Cal.App.4th 1282, 13 Cal. Rptr. 2d 363, 367-68 (1992) (adopting apex doctrine and prohibiting deposition of president of company with no knowledge of claims). We should apply it now to this case.
A chairman of a worldwide company, involved in hundreds of lawsuits, cannot be subjected to discovery which is not reasonably calculated to lead to the admission of relevant evidence where less intrusive means of obtaining relevant evidence in discovery have not been attempted, and the consequent disruption of corporate function cannot be remedied on appeal.
We should grant the writ and order the trial court to grant the protective order. Therefore, I respectfully dissent.
Suzuki Motor Corp., 2019 WL 4062353 *2-6 (emphasis original).
The motto of this story: non-governmental organizations cannot assume the Apex Doctrine will be applied to them in Florida state courts, and they should fashion their arguments before the trial courts accordingly.
Matthew J. Meyer, Esq.
Ansa Assuncao LLP