Moving for and Challenging a Protective Order under the Apex Doctrine
Florida codified the Apex doctrine in 2021. Florida Rule of Civil Procedure 1.280(h), codifying the Apex doctrine, provides:
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.
Regarding this clause in the statute, “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,” make notice of the underlined word “and.” “This provision of the rule is written in the conjunctive, so all three factors must be demonstrated.” Decisionhr USA, Inc. v. DecisionHR Holdings, Inc., 47 Fla.L.Weekly D1334a (Fla. 2d DCA 2022). This means that if the party seeking the deposition of the high-level official is trying to challenge motion for protective order, the party must demonstrate that (1) it has exhausted other discovery, (2) that such discovery is inadequate, AND (3) the officer the party wants to depose has unique, personal knowledge of discoverable information.
A non-final order on a motion for protective order on the Apex doctrine may be appealed via a writ of certiorari. Decisionhr USAs, supra. For instance, if a party moves for a protective order under the Apex doctrine per Rule 1.280(h) to prevent a high-level official from being deposed, and the court orders the deposition, a petition for a writ of certiorari would be the proper procedure.
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