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Florida Supreme Court amends Fla. R. Civ. P. § 1.280 to codify “apex doctrine” protecting high-level government and corporate officers from the risk of abusive discovery

On August 26, 2021, the Florida Supreme Court issued a corrected opinion amending Florida of Rule of Civil Procedure 1.280 to codify Florida’s common law version of the “apex doctrine” protecting high-level government officials from the risk of abusive discovery and to extend the doctrine to protect high-level corporate officers as well. New subsection (h) of Rule 1.280provides that 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. Justice Labarga filed a dissenting opinion, arguing that the existing discovery framework contained in the Florida Rules of Civil Procedure adequately affords trial judges with the necessary authority and tools to deal with any potential abuse or harassment, thus rendering the new rule unnecessary. Justice Labarga pointed out that the new rule contains no definition of “high-level government or corporate officer,” and that Florida is one of only five states to have adopted the doctrine. Federal courts in Florida already apply the doctrine.