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...

08 January

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Quick Note: Motion for Protective Order Reviewed Under Abuse of Discretion Standard of Review

Posted by David Adelstein

in Appeal, Standard of Review

The ruling on a motion for protective order is reviewed for abuse of discretion. An abuse of discretion occurs where the trial court's ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Buzby v. Turtle Rock Community Association, Inc., 47 Fla. L. Weekly D99a (Fla. 2d DCA 2022) (internal quotations and citations omitted). In this case, discussed further here, an attorney being deposed on his own attorney’s fees moved for a protective order claiming he was entitled to be paid for his time as an expert witness. The trial court found the...

23 May

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Appealing a Protective Order that Precludes You from Deposing Material Witness

Posted by David Adelstein

in Appeal, Depositions

In a recent article, I discussed that if you are appealing a discovery order, you are doing so through a petition for a writ of certiorari. I further discussed that this was not an easy appeal, and typically, it is not an easy appeal. But, what about the scenario where the trial court precludes you from taking a deposition of a material witness? For instance, say you want to take a witness’ deposition and the opposing side moves for a protective order to prevent that deposition from going forward. Say the trial court agrees with the opposing party and grants...

23 April

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Denial of Right to Depose Material Witness

Posted by David Adelstein

in Depositions, Standard of Review

Depositions are an integral part of a dispute’s "truth seeking" discovery process. This is where parties can depose a witness under oath and explore key factual issues and parties’ positions, both from a liability and damages perspective. Certain depositions can be introduced for purposes of substantive evidence at trial. Other depositions can be used for purposes of impeachment in case a witness changes his/her position or story at trial. The significance of a deposition of a material witness in a civil case cannot be understated. If an opposing party wants to limit or prevent a deposition from moving forward, that party will...