The Apex Doctrine: What is it and How Does it Affect Companies?

While a case is being litigated, the Florida Rules of Civil Procedure provide that a party may take the deposition of any person. When deposing a corporate party on general issues, the business designates a corporate representative to speak for it. However, parties deposing corporations, in all variety of cases, will sometimes demand that the president, CEO, or another high-ranking official sit for deposition. These employees are commonly referred to as “apex employees.” Obviously, these high-ranking officers of the company will sometimes have information relevant to the case. However, sometimes a party will seek to depose an opposing party’s apex employee simply to inconvenience and/or harass him, or in order to gain a tactical advantage: the officer may have to disrupt a busy schedule, or may have to travel a great distance at a substantial cost. The deposing party may also try to somehow embarrass the officer, which could potentially damage the company.

However, where the corporate party can show that the officer has no knowledge of any fact relevant to the case, that party can file a motion for a protective order with respect to the deposition. A protective order is exactly what its name implies: the court orders that the officer is protected from deposition. The motion for protective order should always be accompanied by an affidavit from the officer, swearing that he has no knowledge of the claims being litigated. The apex doctrine further provides that once the corporate party files the motion and affidavit, the Court should look to the evidence presented by the party seeking the deposition that the officer does in fact have special, unique, or superior knowledge that no other, lesser-ranking employee has; simply claiming that the officer knows all of the business’ policies or is ultimately responsible for all of the business’s decisions will not be sufficient to show that the party is entitled to the deposition.

If the party seeking the deposition cannot present evidence that the officer has unique or special knowledge, then the court should grant the corporate party’s motion for protective order. However, if and when the party seeking the deposition shows that the information he is seeking from the officer cannot be obtained through a less obtrusive method, he will be granted the deposition, provided that he is also shows: 1) a reasonable indication that the officer’s deposition is calculated to lead to the discovery of admissible evidence, and 2) less-intrusive methods of discovery are insufficient, inadequate, or unsatisfactory.

The foregoing concepts and principles, taken cumulatively, are commonly known as the “apex doctrine.” While Florida’s courts have not formally adopted the apex doctrine, courts in this state deciding issues involving the deposing of apex employees have largely adhered to the doctrine’s tenets in making their rulings.

For instance, in Department of Agriculture and Consumer Services v. Broward County, 810 So. 2d 1056 (Fla. 1st DCA 2002), a group of citrus farmers brought suit against the Florida Department of Agriculture regarding its citrus canker eradication program. In the course of the litigation, the farmers sought to depose the Commissioner of Florida’s Department of agriculture, its most-senior position. The Department moved for a protective order and offered up a lower-ranking employee, to whom authority for the program had been delegated, for deposition as a reasonable substitute for the Commissioner. The trial-level judge denied the motion for protective order and the Department appealed.

On appeal, the Third District granted the motion for protective order. While not specifically adopting the apex doctrine, or any brightline rule for apex employees, the Court’s rationale was solidly in line with the principles and methods of the rule, as discussed at the beginning of this post. The Court found that the head of an agency[1] should not be subject to deposition, over objection, unless and until the party seeking the deposition has exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information from other sources. The Court further stated that to hold otherwise would subject agency heads to being deposed in virtually every rule-challenge proceeding, to the detriment of the efficient operation of the agency in particular and the state government as a whole—a rationale that could easily be applied to any mid-sized and large business.

Similarly, in General Star Indemnity Company v. Atlantic Hospitality of Florida, LLC, 93 So. 3d 501 (Fla. 3d DCA 2012), without adopting the apex doctrine, the Third District Court of Appeals overruled the trial court’s order compelling the depositions of an insurance company’s CEO and former corporate secretary, where the insurance company was being sued by one of its insureds for denying its windstorm damage claims.

The plaintiff-insured’s basis for deposing both of these high-ranking officers was that their signatures appeared on its policy, and that the president had knowledge of a loss assessment that had been prepared by a filed-level employee. The insurance company moved for a protective order, and filed an accompanying affidavit establishing that the officers had no role in the investigation or adjustment of the insured’s claims. The affidavit also established that the CEO’s signature was pre-printed on every policy issued by the company in the state of Florida; the company argued that if the CEO was required to testify in every case involving claims over which she had no knowledge, but where her signature appeared on the policy, she would be unable to perform her job.

The trial court denied the motion for protective order and the insurance company appealed. On appeal, while declining to specifically adopt the apex doctrine, the Third District granted the motion for protective order, finding that the job of the president of the company is to manage the company, not fly around the country participating in depositions regarding issues over which the present has no personal knowledge.

Accordingly, one can see that, while Florida’s courts may not have expressly adopted the apex doctrine, they nonetheless adhere to its central tenets: that high-level employees should not face deposition where they do not have unique or special knowledge of the issues being litigated, and where lower-level employees are capable of providing the information being sought by the deponent. Whenever a high-ranking officer of a business faces a potential deposition, all of the foregoing principles are important to consider, and the company is wise to assess the exact nature of the officer’s knowledge of the facts specific to the case and whether any lower-level employee possesses the same knowledge.

[1] While this case was dealing specifically with a state agency, the principle is the same when dealing with a business entity.