The Apex Deposition Doctrine (“ADD”) provides powerful protection against abusive discovery practices to high-ranking officials in public service and in private industry. ADD was designed and developed in Florida to prevent civil litigants from misusing discovery rules to abuse or harass high-ranking government officials. In re Amendment to Florida Rule of Civil Procedure 1.280, 324 So.3d 459, 460 (Fla. 2021). In Florida, ADD has now evolved into a useful tool for limiting the reach of discovery whenever a party seeks to depose a high-ranking government official or corporate officer. However, the requirements that the newly codified ADD places on trial courts can create a precarious situation for the unprepared litigant.

ADD generally provides that high-ranking officials or officers should only be deposed as a last resort. In Florida, the standard has been that such government officials should only be subject to deposition when that official has unique, personal knowledge of discoverable information and the party seeking to depose the official has exhausted all alternatives to discovering that information. See, Citigroup Inc. v. Holtsberg, 915 So.2d 1265, 1269-70 (Fla. 4th DCA 2005). Traditionally, Florida courts have applied ADD freely in the governmental context while hesitating to apply it in the corporate context. As one court explained, public policy permitted lower courts to apply the doctrine in the governmental context to encourage private citizens to seek opportunities for public service. As stated in Holtsberg, this policy rationale did not extend to the corporate context and ADD ran contrary to discovery rules. Thus, appellate courts were seen to lack the authority to officially adopt ADD in the corporate context. The Florida Supreme Court, however, did have that authority.

In 2021, the Florida Supreme Court exercised that authority and codified ADD into the rules of civil procedure, making Florida the first state to do so. See generally In re Amendment to Florida Rule of Civil Procedure 1.280, 324 So.3d 459 (Fla. 2021); see also Fla. R. Civ. P. 1.280(h). Importantly, the rule explicitly expands ADD  to include corporate officers as well as government officials.   Additionally, the Rule applies to both current and former high-ranking officials and also applies in pending cases. This is a major win for high-ranking corporate officers, but danger lurks for those who may be unaware of or unprepared for pitfalls hidden within the new rule.

Rule 1.280(h) creates requirements that trial courts must follow before deciding to grant a motion of protection. ADD utilizes a burden-shifting framework and corporate actors seeking to protect their high-level officers shoulder the first two burdens. First, the filed affidavit must establish that the officer qualifies as a high-level officer based on their actual day-to-day duties. Second, the filed affidavit must demonstrate that the high-level officer does not have unique, personal knowledge of the discoverable information that the party seeking to depose the officer could not find elsewhere. If the officer is successful, and the proof sufficient, the burden shifts to the party seeking to depose the official, who must show that they have exhausted all alternative avenues and the only way to get the information they are seeking is to depose the high-ranking official.If the party seeking deposition cannot meet that burden, the court must grant the protective order.The difference in outcomes between two recent Florida decisions illustrates the importance of a high-ranking official being thorough and intentional about the information they choose to include in their affidavit.

In a recent case, the Fourth District Court of Appeals reversed a trial court’s grant of a protective order because the affidavit provided by the high-ranking officer was little more than a “bald assertion of ignorance.” Karisma Hotels & Resorts Corp. Ltd. v. Hoffman, No. 4D22-729, (Fla. 4th DCA June 22, 2022). The officer’s affidavit merely claimed that he did not have unique, personal knowledge of discoverable information outside of what he previously provided, but his affidavit failed to explain why. Without an explanation of what the official’s job entailed, the affidavit did not provide the trial court enough information to analyze and come to an independent conclusion. As such, the affidavit did not allow the trial court to perform the analysis required by Rule 1.280(h), therefore the court erred in granting the motion.

Conversely, in DecisionHR USA, Inc. v. Mills, 47 Fla. Law Weekly D1334a (Fla. 2nd DCA June 17, 2022), a high level officer successfully utilized Rule 1.280(h). The affidavit provided analyzed the allegations in the Complaint, delineated the high-ranking officer’s day-to-day duties, and explained how that role did not make him privy to the information that the opposing party was seeking.Unlike the situation in Karisma Hotels, supra, the DecisionHR court had enough information to perform the analysis required by the Rule and make factual findings to support their conclusion, which allowed the appellate court to affirm the trial court’s holding.

The disparity between the result in DecisionHR and Karisma Hotels provides a helpful blueprint for drafting an affidavit that is capable of succeeding in the courts and protecting high-ranking officials from abusive discovery practices. The big picture lesson is that an affidavit simply restating the motion’s claim will fail. The court will know that the high-ranking official believes the Rule is applicable; that is why the official filed the motion. Instead of restating this position in the affidavit, high-ranking officials should infuse their affidavit with enough information to paint a picture for the court, so as to empower the court to conclude that the official falls within the boundaries of the Rule on their own.

This article was co-written by Mary Hudson, a summer associate with RumbergerKirk who is a Juris Doctorate student at University of Florida, Levin College of Law.