The Apex Doctrine

In August 2021, the Florida Supreme Court adopted some changes to the Florida Rules of Civil Procedure, In re Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d 459 (Fla. 2021). The topic is one of general interest, though the Rules of Civil Procedure do not apply in Florida workers' compensation except to the extent those rules are specifically adopted, see Rule 60Q6.114, particularly (2)(a):
"(2) Depositions. (a) Depositions of witnesses or parties may be taken and used in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure."
The amendment in August addresses what has come to be known as the "Apex Doctrine," a protection of sorts for "high-level corporate officers" faced with "the risk of abusive discovery." Of course, discovery is the process through which the various parties to a case learn more about situations, facts, and each other personally. When lecturing college students, I liken it to the exchanges people tend to have on first dates, or perhaps the series of early dates, that begin relationships. It is a process of learning more about each other.
There are general standards regarding the obtaining of discovery. It is not limited to "admissible evidence" or even "relevant evidence." Discovery is instead limited in Florida only to inquiry that is "reasonably calculated to lead to the discovery of admissible evidence." Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019). The Winckler decision was not unanimous in the District Court. The Supreme Court, in addressing Rule 1.280 in August referred to Winckler as "the impetus for our decision to take up the apex doctrine." That decision was before the Court upon certification from the District Court, but rather than decide it, the Court elected to publish a Rule change. 
This suggests several points. First, a Rule Change is of broader public import. Certainly, lawyers would note and understand a court decision (common law) broadening the doctrine, but a Rule is published in black letter for any and everyone to easily find and perceive. There are benefits to rules. Second, it illustrates the flexibility a court has to effect public policy in a broader context than merely when a case is before it on either direct appeal or certiorari (one of the "extraordinary writs, see Writ Protection as Opposed to Appeal). This has not always been the case, see The Rules, History, and Evolution (July 2021). 
The Supreme Court elected to address the Apex Doctrine, as illustrated in Winckler on its "own motion" and to "codify the apex doctrine" in Florida more broadly than it had been historically. In introducing the topic, the Court described its evolution in Florida as regards senior management of state agencies as a "common law gloss on our rules of civil procedure." The point, it explained is to minimize the involvement of the highest of officials by requiring a demonstration that the equivalent testimony cannot be accomplished in some other manner. Succinctly, the Court said that
"[A]n 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."
As simple as that concept is, this has been a public entity, "agency," issue in Florida as it has evolved through the various court decisions, the "common law." The Court noted that in Winckler, the trial judge had been confronted with a litigant that wished to depose a high ranking official of a corporation that was a party to a case. The Court noted that the First District in Winckler had correctly observed that “no Florida court has adopted the apex doctrine in the corporate context.” The District therefore denied protection by writ for the corporate officer sought to be deposed in Winckler. 
Notably, the trial judge and District Court did not afford protection in that setting, which illustrates the current judicial discretion of trial judges, subject to a "abuse of discretion" standard on review. It also illustrates that in the absence of an adopted rule "codifying" the doctrine, that appellate courts may be notably constrained by the "abuse of discretion" standard in addressing any failure of such protection by trial courts. 
The Court explained that it examined three issues in its analysis: (1) the "permissive approach to the availability of discovery" under the Florida rules, (2) the balance between that orientation and "the availability of protective orders," and (3) the common law evolution of protection for "high level" officials "[p]reventing harassment and unduly burdensome discovery." It noted that the evolution had rendered such analysis rather commonplace in the government agency setting, citing Department of Agriculture & Consumer Services v. Broward County, 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002) and Univ. of W. Fla. Bd. of Trustees v. Habegger, 125 So. 3d 323, 325 (Fla. 1st DCA 2013).
The Court also noted that the Apex Doctrine already had a broader application in the Federal Court system. Further,
“Virtually every court that has addressed deposition notices directed at an official at the highest level or ‘apex’ of corporate management has observed that such discovery creates a tremendous potential for abuse or harassment.”
The Court concluded there is "no good reason to withhold from private officers the same protection that Florida courts have long afforded government officers." This is not, the Court stressed, a "blanket prohibition on the taking of a deposition," but merely a methodology through which trial judges can effectively "balance the competing goals of limiting potential discovery abuse and ensuring litigants’ access to necessary information." The adoption of Apex in this manner does not preclude or enable such discovery, but affords the trial judge discretion in such situations. Furthermore, it does so in an open and obvious manner that is readily accessible to all, with or without legal acumen or training. 
The application of the process may not be as simple as one may hope. There may be disputes as to whether one is or was sufficiently senior to warrant such protection. There is no definition of "high-ranking," leaving much discretion to the trial judge. There may be necessity of a person proving such status, through motion or even affidavit. One seeking to overcome such an objection or motion will be faced with persuading the trial judge that other avenues are "exhausted" or "inadequate," that there is need for "unique, personal knowledge," that is not viably available elsewhere.
The Court noted that part of the objection process could focus on the availability of "other less intrusive means of discovery, such as interrogatories and depositions of other employees." That will be of more narrow focus in the workers' compensation world, because interrogatories are not available in Florida workers' compensation discovery. Thus, the analysis of such issues may be different from proceeding to proceeding, trial system to trial system. Rules, in no context, are absolute. Much discretion remains with the trial judge in a variety of settings, thus this one is not unique or distinct in that regard. 
Justice Labarga dissented from the decision. He noted the change was "with the ease of a rule amendment" and "abandons Florida’s longstanding refusal of affording special discovery protections to toplevel corporate decision-makers." The dissent explains an alternate perspective that "the existing discovery framework contained in the Florida Rules of Civil Procedure adequately affords" the discretion to deal with such discovery disputes. Thus, it is argued that "the new rule adopted here today unnecessary." This perspective is essentially that such discovery can be precluded or allowed through application of the current "protective order" framework that exists for any and all discovery efforts. But, one might ask, can the current process be readily understood by the public, without access to either legal training or counsel?
The issue has thus bee public since August 2021. Why write about it now? The Court opinion solicited public comment on the rule change, which was to be filed "on or before November 9, 2021." Multiple comments have been filed in the case docket. The Florida Attorney General's office has requested an oral argument on the change. Reasonably soon, the Court will likely either entertain such argument, or reach a final conclusion on the changes to Rule 1.280, and the "codification" of the Apex Doctrine more broadly in Florida procedure. 
It is a topic to which all lawyers should remain attuned, and has potential application in the workers' compensation world. Furthermore, it is an intriguing view into the process of our Court and the methodology through which rules are addressed, proposed, considered, and more. 
By Judge David Langham
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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