“I Swear I Don’t Know Anything”: Florida Courts’ Adoption of the Apex Doctrine applied to High-Ranking Corporate Officials
In August of 2021, the Florida Supreme Court upon its own Motion amended the Florida Rules of Civil Procedure dealing with depositions of high-ranking corporate executives in litigation. The “apex doctrine” is a legal doctrine that, until recently, stated that current or former high level government officers may seek to legally block or limit, via Motion for Protective Order, their deposition in a lawsuit about which they lack personal knowledge. In Florida litigation, Motions for Protective Orders are motions which seeks a Court order blocking a party from seeking (or limiting the parameters of) a certain individual’s deposition. The Florida Supreme Court amended the rule to include current or former high level corporate officers to seek the same protections. The rule, 1.280(h), now reads:
(h) Apex Doctrine. 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.
This is obviously a big development for high-ranking corporate executives concerned that they may have to give a deposition in a case in which they know nothing about. The Supreme Court based their rule change on three considerations: (1) the Florida rules of discovery generally take a permissive approach to the availability of discovery, (2) the Florida rules’ generally liberal orientation toward discovery is checked by the availability of protective orders to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, and (3) rather than limit high level government officers to protection of harassment generally, Florida Courts have fully enforced the apex doctrine in the government context.
Since its institution in August 2021, Florida Courts are now applying this change in pending cases. One such case is Petro Welt Trading et. al. v. Edward Brinkmann and Majab Development, LLC. In that case, on appeal from the trial court, the Second District Court determined that the trial court did not depart from the law when it denied three high-ranking corporate officials’ motion for a protective order citing the “apex doctrine”, which at the time, only applied to government officials. In that case, a group of foreign oil and gas companies sued Brinkmann, a Florida individual, alleging he had embezzled and laundered the assets of these foreign companies through land purchases in Collier County. The oil and gas companies lost their motions to block or limit the depositions of certain high ranking corporate officers and the companies appealed that decision. The Court determined that the trial court did not depart from the rule denying the high-ranking officials protection from depositions because the “new” apex doctrine protecting corporate officials was not yet in place. Further, the Court explained that the oil and gas companies could have sought protection under the new rule as soon as the day the Supreme issued its August 26, 2021 opinion. The Petro Welt Court explained that although it would not reverse the trial court’s decision denying the motions for protective order, it encouraged the moving parties to revive its Motions for Protective Order in the trial court, in part because the rule requires the trial court to make factual findings that the high level corporate executive in fact lacks unique, personal knowledge of the issues being litigated.
The adoption of this revised rule 1.280(h) will be a blessing for high-ranking corporate officers concerned that they may have to be deposed on a dispute which they lack personal knowledge. The Petro Welt opinion suggests Florida Courts will not reverse decisions seeking corporate officer protection prior to the institution of the rule change on August 26, 2021, but parties are now free to seek protection under the rule, even in pending litigation where the same motions for protective orders were previously denied prior to August 26, 2021. Based on the Petro Welt opinion stating the new rule clearly anticipates certain factual findings to be made by the trial court, one can assume that Courts will depend on the sworn, factual allegations asserted regarding the high-ranking corporate officers’ lack of personal knowledge regarding the dispute in resolving the Motion for Protective Order at hearing. However, one well-written, truthful affidavit asserting lack of personal knowledge regarding the dispute can now end up saving a corporation legal fees and costs dealing with scheduling, preparing for, attending, and considering the outcome of depositions of high-ranking corporate officials.
 (Emphasis added). See In Re: Amendment to Florida Rule of Civil Procedure 1.280, No. SC21-929, August 26, 2021. https://www.floridasupremecourt.org/content/download/780135/opinion/sc21-929_CORRECTED.pdf
 Id. at 24.
 Id. at 5.
 Petro Welt Trading, et. al. v. Edward Brinkmann and Majab Development, LLC, 47 Fla. L. Weekly D956a (Fla. 2d DCA 2022).