Deposing "apex" officials in Florida.

• Author: Moskowitz, Adam M.

Shooting Straight for the Top

As evidenced with the recent Congressional testimony by the leaders of the tobacco industry, apex[1] officials are becoming more willing to stand up and defend their companies in times of trouble. At the same time, no discovery device has become more troublesome for companies than a notice for the deposition of their top executives.[2] In light of these developments, courts across the country have been attempting to create standards to balance the rights of litigants to obtain relevant and discoverable information from apex officials against the official's right to avoid undue burden and abuse.[3]

Earlier this year, the Supreme Court in a unanimous opinion ruled that a sitting President does not have legal immunity from allegations involving his personal conduct, thereby refusing to postpone President Clinton's deposition in the Paula Jones case.[4] The President contended that he occupies a unique office with responsibilities so vast and important that public interest demands that he devote his undivided time and attention to his public duties.[5] Although the Court refused to postpone his deposition, the Court did hold that the "prestige of the position" should be considered when determining "the conduct of the entire proceeding, including the timing and scope of discovery."[6] These same policy concerns exist when any apex official is noticed for deposition and thus courts must always consider the "timing and scope" of apex discovery. Although Florida appellate courts have yet to establish guidelines for apex discovery, decisions from other districts have generated workable and persuasive criteria that should be applied in Florida.[7]

Legal Standards in Florida for Apex Depositions

Fla. R. Civ. P. 1.280(b)(1) provides that a party may "obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action," and "it is not ground for objection if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."[8] The policy behind this rule is "so that the litigation should no longer proceed as a game of "blind man's bluff."[9]

Fla. R. Civ. P. 1.310, similar to other state rules,[10] expressly permits a party to take the deposition of "any person" and it is very unusual for a court to prohibit the taking of any deposition altogether.[11] As courts have explained, even an apex official's "prestigious position is an unimpressive paper barrier shielding [them] from the judicial process."[12]

Balancing against these rights is the concern that a party may not use the discovery process as a tool to harass an opponent in order to gain a tactical advantage and thus any individual noticed for deposition may seek from the court "protection from annoyance, embarrassment, oppression, or undue burden or expense...."[13] In determining whether an apex motion for protective order will be granted, many courts look to the guidelines established by the Texas Supreme Court in Crown Central Petroleum Corp. v. Garcia, 904 S.W. 2d 125,128 (Tex. 1995):

When a party seeks to depose a corporate president or other high level corporate official and that official (or the corporation) files a motion for protective order to prohibit the deposition accompanied by the official's affidavit denying any knowledge of relevant facts, the trial court should first determine whether the party seeking the deposition has arguably shown that the official has any unique or superior personal knowledge of discoverable information.

If the party seeking the deposition cannot show that the official has any unique or superior personal knowledge of discoverable information, the trial court should grant the motion for protective order and first require the party seeking the deposition to attempt to obtain the discovery through less intrusive means.... After making a good faith effort to obtain the discovery through less intrusive methods, the party seeking the deposition may attempt to show (1) that there is a reasonable indication that the official's deposition is calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate.

* Applicable Burdens of Proof in Applying Apex Criteria.

When an apex official is noticed for deposition in Florida, the responding party may file a motion for protective order under Fla. R. Civ. P. 1.280(c). This motion must be accompanied by the apex official's own...