Historically,
The good news is that the
Rather than ruling in the
(h) Apex Doctrine. 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.
Takeaways from Rule 1.280(h)
Following the
- The party resisting the deposition has (1) the burden to persuade the court that the would-be deponent is a “high-level officer” and (2) the burden to produce an affidavit or declaration explaining the officer's lack of personal knowledge;
- If the party seeking the deposition wants to overcome this showing, it must establish that “it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information;” and
- This new rule is effective immediately and applies in all pending cases.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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