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Apex Doctrine to Prevent Deposition of High Ranking Official in Corporate Context

Posted by David Adelstein on September 01, 2019
Discovery

There is a doctrine referred to as the Apex doctrine to prevent the deposition of a high ranking official.  The Apex doctrine stands for the proposition 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 which cannot be obtained from other sources.”  Suzuki Motor Corp. v. Winckler, 44 Fla.L.Weekly D2219a (Fla. 1stDCA 2019) (citation omitted).   Stated another way: “[A] party seeking to depose a . . . high-ranking governmental official must demonstrate the personal involvement of the official in a material way or the existence of extraordinary circumstances.” Id. (citations omitted). 

The Apex doctrine has been applied in Florida in the government context, and not in the private corporate context to prevent the deposition of a high ranking corporate officer.   

This issue was subject of a petition for a writ of certiorari in Suzuki Motor Corp.where a plaintiff wanted to depose Mr. Suzuki—the former CEO and current Chairman of the Board of Suzuki Motor Corp.–in Japan based on his involvement in a product liability issue concerning the brakes of a motorcycle due to a letter or memo that had his signature.  The trial court allowed the deposition, notwithstanding objection, prompting the defendant to file a petition for a writ of certiorari.

The First District Court of Appeal denied the petition for writ of certiorari finding that the trial court did not depart from the essential requirements of law “because the apex doctrine [in Florida] has not been adopted in the corporate context.”  Suzuki Motor Corp., supra.  Further, the Court found that the “trial court’s decision that the Chairman’s deposition was reasonably calculated to lead to the discovery of admissible evidence provides no basis for us to quash the order below.”  Id

There was a good dissenting opinion in this case that demonstrated that Mr. Suzuki’s deposition may really have been taken for leverage to drive the case to a settlement.  There were other important depositions that were not taken that could have been taken.  There was a three day corporate representative deposition of Suzuki Motor Corp.  Mr. Suzuki provided a sworn declaration that he had no knowledge and did not recall the document.  And, this concerned one document in thousands of documents that were produced.  The dissenting opinion expressed:

To allow meritless discovery depositions of corporate leaders, who have provided sworn statements that they have no discoverable knowledge of the issue at hand, or that such information can be obtained from persons with less corporate responsibilities, is to allow illegitimate disruption in the private sector that is forbidden in the public sector. While the separation of powers certainly compels the application of the apex doctrine in the public sphere, the rationale of the doctrine is equally applicable in the private sphere: the courts cannot countenance unjustified discovery of lead corporate executives for no legitimate reason.

Regardless of how you feel about this deposition, the fact remains that there is a liberal standard with respect to discovery — discovery needs to be reasonably calculated to lead to the discovery of admissible evidence.  In this case, such standard was met.  Will this opinion open the door for parties to make arguments to depose high ranking corporate officials under the argument that the apex doctrine does not apply in the corporate context?  Likely!

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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