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Orlando Sentinel

Florida Supreme Court shields top corporate executives from depositions
By JIM SAUNDERS AUG 30, 2021 AT 10:35 AM


TALLAHASSEE — Prompted by a case involving the retired chairman of Suzuki Motor Corp., the Florida Supreme Court has shielded high-ranking business executives from having to give depositions in lawsuits.

Justices, in a 6-1 decision on Thursday, extended to corporate executives a protection that has long allowed top government officials to avoid being required to testify about government actions. The decision said broadening what is known as the “apex doctrine” will help prevent harassment of corporate leaders.

“Over the years, varied government officers in Florida have benefited from the apex doctrine,” said the 15-page decision, written by Justice Carlos Muniz and joined by Chief Justice Charles Canady and Justices Alan Lawson, Ricky Polston, John Couriel and Jamie Grosshans. “We think that the efficiency and anti-harassment principles animating that doctrine are equally compelling in the private sphere.”

Muniz wrote that the decision is not a “blanket prohibition” on high-ranking corporate executives facing depositions. In part, declarations or affidavits will have to be filed that indicate the executives lack “unique, personal knowledge of the issues being litigated.”

But in a dissent, Justice Jorge Labarga wrote that the majority decision “abandons Florida’s longstanding refusal of affording special discovery protections to top-level corporate decision-makers.” He also argued that Florida already had adequate legal rules to prevent potential harassment.

“Florida’s existing discovery framework provides trial courts with the necessary tools to address abusive discovery practices, ranging from mandating the method of discovery to be used, to prohibiting the discovery from occurring in the first place. … Accordingly, there is no need for the special discovery protection afforded to top-level corporate officers by the majority’s new rule,” Labarga wrote.

Muniz wrote that the “impetus” for the Supreme Court to address the issue was a dispute about whether Osamu Suzuki, who retired in June as the chairman of Suzuki Motor Corp., should have to be deposed in a Florida products-liability lawsuit.

 That lawsuit was filed against the Suzuki company by Scott Winckler, who was paralyzed from the waist down in a 2013 motorcycle accident, according to an appellate court ruling. Four months after the accident, the company issued a recall of the brakes on the type of motorcycle Winckler was riding, and the lawsuit related to the brakes issue.

 In the lawsuit, Winckler’s attorneys argued that the Suzuki chairman had knowledge about facts relevant to the case and should testify. But the company’s attorneys fought efforts to depose the chairman, arguing in part that the plaintiff’s attorneys could get the information from lower-level company officials.

A divided panel of the 1st District Court of Appeal in 2019 rejected an attempt to prevent Osamu Suzuki from testifying, saying the apex doctrine had not been extended to high-ranking corporate executives.

“The problem with its (Suzuki’s) argument is that the doctrine is only clearly established in Florida in the government context, with respect to high-ranking government officials,” appeals court Judge Timothy Osterhaus wrote in a majority opinion joined by Judge Lori Rowe.

That spurred Suzuki’s attorneys, including former Justice Raoul Cantero, to appeal to the Supreme Court. In a brief filed last year, the attorneys wrote that Osamu Suzuki’s only involvement in the brake issue had been initialing a document.

 “Mr. Suzuki is the chairman of a global company,” the brief said. “His extensive duties consume his schedule. The notion that he has any personal knowledge about a motorcycle accident in Florida is not credible on its face, and plaintiff does not claim that he does.”

The Supreme Court heard arguments in December in the Suzuki case but had not ruled. Along with the decision Thursday to expand the apex doctrine, it issued an order saying it would not rule in the Suzuki case.

The Suzuki case drew friend-of-the-court briefs from a series of business and legal groups, including the Florida Justice Reform Institute, the U.S. Chamber of Commerce and the Florida Defense Lawyers Association.

William Large, president of the business-backed Florida Justice Reform Institute, issued a statement Thursday praising the court’s broader decision on the apex doctrine.

“In our amicus (brief), we argued that allowing the deposition of an apex corporate employee who does not have uniqu information could lead to a flood of discovery demands for that same employee in other cases, leaving that person no time to actually run the business,” Large said. “The (Supreme) Court agreed, but in an unexpectedly profound way.”