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Discovery

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

Posted by David Adelstein on September 01, 2019
Discovery / Comments Off on Apex Doctrine to Prevent Deposition of High Ranking Official in Corporate Context

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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Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling

Posted by David Adelstein on July 28, 2019
Discovery, Trial Perspectives / Comments Off on Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling

Delay tactics do not always work to avoid a dispositive summary judgment ruling, particularly when the tactics have no justifiable basis.  And, frankly, delay tactics should not work as an intentional means to delay the inevitable.  This was discovered by a commercial condominium owner in Weisser Realty Group, Inc. v. Porto Vita Property Owners Association, Inc., 44 Fla. L. Weekly D1094a (Fla. 3d DCA 2019), where the trial court granted a foreclosure summary judgment against it.  

In this case, a commercial condominium owner purchased a condominium unit in a condominium that had residential units and select commercial units. Residential units and commercial units that had an active business function were assessed dues. The commercial owner, however, decided it was not going to pay assessments and, apparently, never did. The association foreclosed on the unit and filed a motion for summary judgment.  Right before the hearing on the motion for summary judgment, and after previous motions for continuance, the commercial condominium owner filed another motion for continuance to take another deposition, a motion to compel discovery, and a motion for leave to amend to add affirmative defenses.  The commercial condominium owner also filed an affidavit with conclusory averments that conflicted with the deposition testimony of its corporate representative.  The commercial condominium owner tried to argue that it was exempt from assessments because, among other things, it did not have an active business function although its corporate representative testified to the contrary (and there was other record evidence to refute this averment).  

The trial court, as affirmed by the appellate court, was not having any of what it perceived to be intentional delay.  The Third District explained:

The affidavit in opposition to summary judgment is replete with statements that are conclusory, speculative, contains hearsay or would otherwise not be admissible at trial. Moreover, the affidavit specifically contradicts the testimony by Weisser Realty’s [commercial condominium unit owner] designated corporate representative….

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Despite having had two years since service of the complaint in which to schedule depositions and seek further discovery, it was only a week before the specially set summary judgment hearing that Weisser Realty moved to set the Association’s corporate representative’s deposition, and three days before the hearing that Weisser Realty filed motions to compel discovery and for leave to amend its affirmative defenses. As the Fifth District recently explained,

[i]f there is good faith discovery still in progress, the trial court should not grant the moving party’s motion for summary judgment. . . . However, if the non-moving party does not act diligently in completing discovery or uses discovery methods to thwart and/or delay the hearing on the motion for summary judgment, the trial court is within its discretion to grant summary judgment even though there is discovery still pending.

The trial court found no justification in the record for the last minute motions to continue discovery or to add additional affirmative defenses where the facts appeared to be well-established and sufficient to address at summary judgment. The trial court was within its discretion to grant summary judgment, where the filings mere days prior to a noticed summary judgment hearing appeared to be intended to delay the proceedings.

Weisser Realty Group, supra (internal citation omitted).

 

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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Writ of Certiorari to Remedy Pre-Trial Discovery Order

Posted by David Adelstein on August 12, 2017
Discovery, Standard of Review / Comments Off on Writ of Certiorari to Remedy Pre-Trial Discovery Order

Sometimes, a trial court issues a pre-trial order on a discovery issue that a party claims causes it irreparable harm.   In this situation, the only basis to appeal the pre-trial discovery order is through a petition for writ of certiorari, as recently explained by the Second District Court of Appeal:

A party seeking review of a pretrial discovery order must show that the trial court’s order departed from the essential requirements of law and caused material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.  Generally, certiorari is not available to review orders denying discovery because in most cases the harm can be corrected on appeal. But certiorari relief may be appropriate when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party’s claim, defense, or counterclaim.  The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings.

Westerbeke Corp. v. Atherton, 42 Fla.L.Weekly D1741c (Fla. 2d DCA 2017) (internal quotations and citations omitted).

In this recent opinion (discussed in more detail here), the trial court in a product liability case denied a defendant’s right to perform destructive testing of a boat’s gas generator that caused an explosion. The defendant claimed the destructive testing was necessary to determine the cause of the explosion and prepare a defense. In other words, the harm imposed on the defendant could not be corrected on a final appeal since the harm prevented it from generating a sufficient defense. Here, the Second District granted the writ of certiorari because the trial court applied the wrong legal standard in denying the defendant’s request to perform destructive testing. The take-away is the Second District’s explanation as to when certiorari relief is appropriate to remedy a pre-trial discovery order.

 

 

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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Note on Discovery in Litigation

Posted by David Adelstein on June 19, 2015
Discovery, Evidence / Comments Off on Note on Discovery in Litigation

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Here is a quick note on discovery in litigation (e.g., document requests, depositions, interrogatories).

An objective of discovery is to discover information that is reasonably calculated to lead to the discovery of admissible evidence. In other words, just because the discovery appears irrelevant does not necessarily mean that pursuing such discovery will not reasonably lead to the discovery of admissible evidence. By taking a more liberal approach to discovery, hopefully, some of the unfortunate gamesmanship that occurs during discovery is eliminated or reduced. In particular, parties should not be able to unilaterally dictate what they believe is relevant to another party’s claims or defenses. This would just result in parties potentially hiding information, concealing information, or not producing information under the pretext that such information is not relevant as determined by that party. Who wants this? Many times, disputes get resolved during discovery or after discovery runs its course as parties are able to better evaluate the strengths and weaknesses of their case based upon another party’s analysis and theories supported by the information.

Now, just because there is a more liberal approach to pursuing discovery does not mean parties have carte blanche to discover everything or go on fishing expeditions. Discovery is not intended to be a tool to harass another party by seeking evidence / information that is categorically irrelevant to the dispute at-issue. Check out this article for an example of a court granting a writ of certiorari due to the irreparable harm of a plaintiff trying to pursue categorically irrelevant discovery that could not reasonably lead to the discovery of admissible evidence.

Moreover, when parties know that there is a dispute, they have an obligation not to spoil (destroy or alter) relevant, critical evidence, specifically with electronically stored information. By not taking steps to preserve evidence, a party could be subject to discovery sanctions, the dreadful adverse inference jury instruction, or in worst-case scenarios, the striking of pleadings. Check out this article for more information on spoliation of evidence including the dreadful adverse inference jury instruction (that no party wants!).

Discovery is crucial fact-finding process in litigation to discover evidence in your case. It is also a tool used to authenticate certain evidence and/or lay the foundation for certain evidence.

 

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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