An Overview of the "Apex Doctrine" and its Applicability Under Florida Law.

• Author: Devisse, Matthew B.

Rule 1.280(b)(1) of the Florida Rules of Civil Procedure provides that a party may "obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party..." and that "it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Many decisions have analyzed the application of Rule 1.280(b)(1) in concert with the "apex doctrine." The essence of the "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 that cannot be obtained from other sources. (1) This article summarizes Florida law involving the "apex doctrine," concluding with the Florida Supreme Court's recent adoption of the "apex doctrine" in the private sector context in Suzuki Motor Corporation v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019).

Survey of Florida Law in Connection With the "Apex Doctrine"

The First District Court of Appeal analyzed the application of the "apex doctrine" in Horne v. School Board of Miami-Dade County, 901 So. 2d 238 (Fla. 1st DCA 2005). Horne involved a petition for writ of certiorari filed by Jim Horne, the former commissioner of education for the State of Florida, the Florida Department of Education, and the State Board of Education, seeking to quash a trial court's order denying a motion to quash subpoena and for protective order seeking to prevent the School Board of Miami-Dade County from deposing Mr. Horne regarding school funding decisions that occurred during his tenure as commissioner. (2) In the trial court, Mr. Horne filed an emergency motion to quash subpoena and for a protective order related to the plaintiff's request to take his deposition, arguing that, as former commissioner, he should be immune from deposition absent the required showing and that the plaintiff had only deposed three employees of the Department of Education at that stage of the proceedings. (3) Mr. Horne submitted an affidavit asserting he had no personal knowledge of the facts giving rise to the plaintiff's claim, and that any information known by him was also known by his former staff members. (4) In denying Mr. Horne's request to prevent his deposition, the trial court reasoned: "[M]r. Horne is the former commissioner of education. Consequently, authority holding that depositions of agency heads may not be taken except as a last resort when there are no other sources of relevant information available do[es] not apply in his situation." (5)

The court began its substantive analysis by explaining that, in State, Department of Health and Rehabilitative Services v. Brooke, 573 So. 2d 363, 371 (Fla. 1st DCA 1991), it agreed with the U.S. District Court for the Eastern District of Pennsylvania that "[d]epartment heads and similarly high-ranking officials should not ordinarily be compelled to testify unless it has been established that the testimony to be elicited is necessary and relevant and unavailable from a lesser ranking officer." (6) The First District, then quoting its opinion in Department of Agriculture and Consumer Services, stated:

In circumstances such as these, the 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.To hold otherwise would, as argued by the department, subject agency heads to being deposed in virtually every rule challenge proceeding, to the detriment of the efficient operation of the agency in particular and state government as a whole. (7)

However, the court then explained that the issue of whether the rules stated above apply to former agency heads and high-ranking officials was one of first impression in Florida and, thus, a review of caselaw addressing the issue in foreign jurisdictions would be of assistance. (8) The court then addressed the Supreme Court of Appeals of West Virginia's decision in Arnold Agency v. West Virginia Lottery Commission, 526 S.E.2d 814, 830 (W. Va. 1999), in which it was held that former high-ranking government officials were entitled to protection from the rule that "highly placed public officials are not subject to a deposition absent a showing that the testimony of the official is necessary to prevent injustice to the party requesting it." (9) The First District cited to the reasoning that the officials, whose past conduct could potentially implicate them in a significant number of legal actions, have a legitimate interest in avoiding "unnecessary entanglements in civil litigation," which continues upon leaving office. (10) The court then cited to the United States v. Wal-Mart Stores, Inc., No. CIV.A. PJM-01-CV-152, 2002 U.S. Dist. LEXIS 6929 (D. Md. Mar. 29, 2002), case in which it was held that the "apex doctrine" should apply with equal force in situations where depositions of former high-ranking government officials are sought, reasoning that "[s]ubjecting former officials decision-making processes to judicial scrutiny and the possibility of continued participation in lawsuits years after leaving public office would serve as a significant deterrent to qualified candidates for public service." (11) The court further reasoned that if it were to permit officials to be subject to depositions when their terms of office ended, public servants should expect a mailbag of deposition subpoenas on the day they leave office. (12) Thus, the Wal-Mart court concluded that a party seeking to depose a former high-ranking government official must demonstrate the personal involvement of the official in a material way or the existence of extraordinary circumstances. (13)

The First District concluded by agreeing with the courts in Arnold Agency and Wal-Mart Stores, Inc., that the rule proscribing that agency heads and other high-ranking officials should not be compelled to testify unless it has been established that the testimony to be elicited is necessary, relevant, and unavailable from other sources was equally applicable to former agency heads and high-ranking officials in circumstances involving past official conduct. (14) The court emphasized that, not only would subjecting former officials to depositions without satisfying the necessary requirements be unduly burdensome for the officials, but that it could also, as the court in Wal-Mart Stores explained, serve as a significant deterrent to qualified candidates seeking public service positions. (15) Accordingly, the court granted the petition, quashed the trial court's order, and remanded for the trial court to determine whether the testimony to be elicited from Mr. Horne was necessary, relevant, and unavailable from another source. (16)

The Fourth District Court of Appeal addressed the "apex doctrine" in Citigroup Inc. v. Holtsberg, 915 So. 2d 1265 (Fla. 4th DCA 2005). In that case, the plaintiffs sued the defendants for the lost value of their investments arising from allegedly misleading financial statements. (17) In the course of discovery, the plaintiffs sought to take the depositions of Citigroup's former chief executive officer and chairman of its board at the time, Sanford I. Weill, and its chief executive officer at the time, Charles O. Prince. (18) The defendants moved for a protective order arguing that it was a harassment attempt, as neither individual had firsthand knowledge of the facts of the case. (19) The defendants further argued that, before the plaintiffs could depose Citigroup's high-level executives, they had to demonstrate that those persons had unique or special knowledge of the facts at issue and that the plaintiffs had exhausted a less burdensome avenue of obtaining the information sought. (20) The defendants contended the First District Court of Appeal, in Department of Agriculture and Consumer Services v. Broward County, 810 So. 2d 1056, 1057 (Fla. 1st DCA 2002), had already recognized the "apex doctrine." (21)

In response, the plaintiffs...