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writ of certiorari

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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Standard for Petition for Writ of Certiorari

Posted by David Adelstein on August 18, 2019
Appeal / Comments Off on Standard for Petition for Writ of Certiorari

To invoke an appellate court’s certiorari jurisdiction, [t]he petitioning party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post-judgment appeal.

State Farm Florida Ins. Co. v. Sanders, 44 Fla.L.Weekly D1901a (Fla. 3d DCA 2019) quoting Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) (internal quotations omitted). 

This is the standard for a petition for writ of certiorari.

An example of an appellate court granting a petition for writ of certiorari and quashing a trial court’s order can be found in State Farm Florida Ins. Co. v. Sanders, which dealt with a property insurance coverage dispute. 

In this case, after the policyholder filed a lawsuit against his insurer, the insurer filed a motion to compel the parties to the appraisal process mandated by the property insurance policy.  An issue arose as to the parties’ selection of “disinterested” appraisers as required by the policy.  The policyholder wanted to use his public adjuster, which the insurer contested because the public adjuster is hardly disinterested – he is an agent for the policyholder. Notwithstanding, the trial court entered an order allowing the policyholder’s public adjuster to serve as the disinterested appraiser prompting the insurer to file a petition for writ of certiorari.

The appellate court granted the petition because allowing the public adjuster to serve as a disinterested appraiser is a harm that could NOT be corrected in a post-judgment appeal. A major reason for this is the nature of the property insurance appraisal process is a binding process, as more particularly outlined in the property insurance policy. 

If you are considering filing a petition for writ of certiorari, know the standard you need to satisfy to get the appellate court to entertain the petition and quash the trial court’s 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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Denial of Right to Depose Material Witness

Posted by David Adelstein on April 23, 2017
Depositions, Standard of Review / Comments Off on Denial of Right to Depose Material Witness

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 file a motion for protective order based on its good cause reasoning to restrict that deposition. The burden is on that party to support its good cause reasoning. If the court grants the motion for protective order, an appellate issue arises. “When a party has been denied the right to depose an alleged material witness without finding of good cause to preclude the deposition, the trial court departs from the essential requirements of law.”   Akhnoukh v. Benvenuto, 42 Fla.L.Weekly D882 (Fla. 2d DCA 2017). This gives the denied party the right to move for a writ of certiorari: “Certiorari jurisdiction generally exists to review the denial of a motion to compel the deposition of a material witness.” Id. (further explaining that a witness can be material even if relevant information can be obtained from a party).

 

For instance, in Akhnoukh, the plaintiffs obtained a protective order that prevented defendants from deposing plaintiff’s minor son (who was not a party). The son was the only passenger in the car at the time of the accident; he was eight year’s old at the time of the car accident and eleven year’s old at the time of the protective order. The defendants wanted to take the minor’s accident since he was sitting in the front passenger seat and an eyewitness to the accident and could shed value on the moments before the accident, the impact of the accident, whether the mother was wearing a seat belt, and the mother’s activities after the accident. Nonetheless, the trial court granted the protective order. The appellate court, however, quashed the motion for protective order:

 

The trial court did not require Benvenuto [plaintiff] to establish good cause for the protective order. She based her argument on her [minor] son’s age, lack of maturity, and experience but provided no evidence. She also did not provide any evidence of how the taking of the deposition may be detrimental to her son. The trial court made no findings of good cause and departed from the essential requirements of law in prohibiting the deposition.  Thus, we grant the petition and quash the trial court’s order granting the motion for protective order. The trial court in its discretion may take protective measures if necessary for the minor’s well-being, such as requiring that the deposition take place before the court or a magistrate.

Akhnoukh, supra.

 

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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Designating a Representative(s) to Serve as the Corporate Representative for Deposition

Posted by David Adelstein on April 07, 2017
Standard of Review, Trial Perspectives / Comments Off on Designating a Representative(s) to Serve as the Corporate Representative for Deposition

Corporate representative depositions play an important role in the discovery of any dispute involving a corporate party. A corporate representative deposition requires the corporate representative to speak on behalf of the company – they are not speaking based on their personal knowledge, but as to the company’s position regarding designated topics. In fact, the designated corporate representative does not have to have the most knowledge about a particular topic to be the representative. See Fla.R.Civ.P. 1.310(b)(6). See also Sybac Solar, GMBH v. 6th Street Solar Energy park of Gainesville, LLC, 42 Fla. L. Weekly D771a (Fla. 2d DCA 2017) (“The corporation is not required to designate ‘the witness with the most knowledge’ of the designated subject matter; indeed the witness is not required to have any personal knowledge whatsoever. And there may be a good reason why a corporation does not produce the most knowledgeable witness for deposition. For example, the person with the greatest knowledge of the subject matter ‘may not totally embrace the corporation’s position.’” Instead, the corporation is required to prepare the designated witness to testify regarding the designated subject matter.) (internal citations omitted).

Typically, the corporation can designate the representative(s) it wants to testify about the designated topics. With that said, the Second District in Sybac Solar explained that a deposing party that does not like the designated representative(s) can move the trial court to depose another corporate representative of its choice subject to the discretion of the trial court to issue a protective order.  

In this case, the deposing party moved to compel the opposing party to designate a certain individual as a corporate representative. The trial court granted the motion. The opposing party appealed –through a writ of certiorari since orders compelling a deposition can result in irreparable harm that cannot be undone on a final appeal. The Second District reversed in part because the individual had interests that were adverse to that of the company and would not be a proper corporate spokesperson; thus, the individual could not be a corporate representative for those topics.

I find this case frustrating. An entity should be entitled to designate those person(s) it wants to speak on the designated topics. The entity has a duty to prepare the person(s) to speak about the topics and the entity’s position because the person may not have, and is not required to have, the most knowledge about the topic. As long as the person is sufficiently prepared, the story should end.   If the person says “I don’t know” or “I don’t recall” during the entire deposition or gives wishy-washy answers (based on their lack of preparation), than that it is a different story.  But assuming the person is prepared, if the opposing party does not like the answers they are not precluded from taking depositions of other persons, or even the designated representatives, based on their personal knowledge. Otherwise, everyone will move to depose the person they want to serve as the corporate representative (which is probably the person with the most knowledge) which waters down this rule.

 

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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The Certiorari Standard of Review

Posted by David Adelstein on November 13, 2015
Appeal, Standard of Review / Comments Off on The Certiorari Standard of Review

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I previously talked about petitions for writs of certiorari and the certiorari standard of review. A recent Florida Fourth District Court of Appeals explained: “Certiorari review is appropriate when an order [from the trial court] departs from the essential requirements of law, causing material injury throughout the remainder of proceedings below and effectively leaving no adequate remedy on post-judgment appeal.” Robinson v. Florida Peninsula Insurance Co., 40 Fla.L.Weekly D2547b (Fla. 4th DCA 2015).

In this matter, a homeowner filed a lawsuit against his homeowner’s insurance carrier. The insurer moved to abate the lawsuit for purposes of compelling the homeowner to allow the insurer to exercise its right to repair under the policy. However, the homeowner already initiated repairs.   The trial court granted the insurer’s motion to abate and the homeowner filed a petition for writ of certiorari.

The Fourth District granted the petition quashing the trial court’s order to abate the case. The Court held that the trial court departed from the essential requirements of the law by abating the homeowner’s lawsuit because if the homeowner performed the repairs the abatement would serve as a dismissal of the case thereby causing material injury to the homeowner. In other words, if the homeowner did the repairs, there were no repairs for the insurer to perform and/or exercise its rights to perform.

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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