Elon Musk Avoids Deposition Under the Apex Doctrine

A great tactic for plaintiffs bringing suit against large corporations would be to insist on deposing the CEO in every suit, as a means of harassment or to compel settlement.  To avoid this odious litigation tactic, many jurisdictions across the United States, at the state and Federal level, have adopted a version of what is known as the Apex Doctrine.

What is the Apex Doctrine?

The Apex Doctrine is a litigation tool to prevent the deposition of an organization’s chief executive officer or other high ranking official without personal knowledge of the subject of the litigation.  Although the doctrine has been around for decades in some jurisdictions, the Texas Supreme Court case of Crown Central v. Garcia,  904 S.W.2d 125 (Tex. 1995) is considered the seminal modern case on the subject.  The Doctrine, as explained in the Crown Central case, is as follows:

When a party seeks to depose a corporate president or other high level corporate official and that official (or the corporation) files a motion for protective order to prohibit the deposition accompanied by the official’s affidavit denying any knowledge of relevant facts, the trial court should first determine whether the party seeking the deposition has arguably shown that the official has any unique or superior personal knowledge of discoverable information. If the party seeking the deposition cannot show that the official has any unique or superior personal knowledge of discoverable information, the trial court should grant the motion for protective order and first require the party seeking the deposition to attempt to obtain the discovery through less intrusive methods. Depending upon the circumstances of the particular case, these methods could include the depositions of lower level employees, the deposition of the corporation itself, and interrogatories and requests for production of documents directed to the corporation. After making a good faith effort to obtain the discovery through less intrusive methods, the party seeking the deposition may attempt to show (1) that there is a reasonable indication that the official’s deposition is calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate. If the party seeking the deposition makes this showing, the trial court should modify or vacate the protective order as appropriate. As with any deponent, the trial court retains discretion to restrict the duration, scope and location of the deposition. If the party seeking the deposition fails to make this showing, the trial court should leave the protective order in place.

Has Florida Adopted the Apex Doctrine?

Yes, Florida adopted the Apex Doctrine in connection with an attempt to depose the Chairman and former Chief Executive Officer of Suzuki Motor Corporation, in Suzuki v. Winckler (1st DCA 2019).  The intermediate appellate court allowed the deposition to proceed.  The Florida Supreme Court accepted jurisdiction of the matter, and instead of ruling on the specific case at hand, amended the Florida Rules of Civil Procedure, by modifying Rule 1.280 to formally adopt the Apex Doctrine for corporate officers.  In re Amendment to Fla. Rule of Civil Procedure 1.280, 324 So.3d 459(Mem) (Fla. 2021).

As explained by the Florida Supreme Court:

Many courts apply the “apex doctrine” to protect high-level corporate officers from the risk of abusive discovery, while still honoring opposing litigants’ right to depose such persons if necessary. Florida’s version of the apex doctrine, developed by the district courts of appeal as a common law gloss on our rules of civil procedure, protects only high-level government officials. On our own motion, we now amend those rules to codify the apex doctrine and to extend its protections to the private sphere.

Preventing harassment and unduly burdensome discovery has always been at the heart of that doctrine in our state. The First District invoked that rationale in Florida’s seminal apex doctrine case, Department of Agriculture & Consumer Services v. Broward County , 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002). There, the court observed that withholding the doctrine’s protections 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 state government as a whole.” Id. Similarly, in a case applying the apex doctrine for the benefit of a state university president, the First District warned that “compelling the deposition of President Bense in this context could have future widespread ramifications and subject her to deposition in numerous other employment disputes.” Univ. of W. Fla. Bd. of Trustees v. Habegger , 125 So. 3d 323, 325 (Fla. 1st DCA 2013). Over the years, varied government officers in Florida have benefited from the apex doctrine.

We think that the efficiency and anti-harassment principles animating that doctrine are equally compelling in the private sphere. “Virtually every court that has addressed deposition notices directed at an official at the highest level or ‘apex’ of corporate management has observed that such discovery creates a tremendous potential for abuse or harassment.” Celerity, Inc. v. Ultra Clean Holding, Inc. , No. C 05-4374, 2007 WL 205067, at *3 (N.D. Cal. Jan. 25, 2007). Federal district courts in Florida have similarly commented that, “by virtue of their position,” apex officials “are vulnerable to numerous, repetitive, harassing, and abusive depositions, and therefore need some measure of protection from the courts.” Brown v. Branch Banking & Trust Co. , No. 13-81192-CIV, 2014 WL 235455, at *2 (S.D. Fla. Jan. 22, 2014) (citation omitted). We see no good reason to withhold from private officers the same protection that Florida courts have long afforded government officers.

Rule 1.280(h) is Florida’s adoption of the Apex Doctrine, which reads as follows:

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.

Is Elon Musk the Apex of Tesla?

In Tesla v. Monserratt, 4D2023-2075 (4th DCA 2024), the Estate of a deceased passenger in a wrecked Tesla sued Tesla for wrongful death, claiming that the car was defective.  Mr. Musk had called the victim’s family, to offer condolences.  The Estate attempted to depose Mr. Musk about the telephone call and perhaps other issues.  In quashing the subpoena for Mr. Musk’s deposition, the Court reasoned as follows:

Accordingly, in determining whether the trial court departed from the essential requirements of the law in granting the motion to compel deposition, the first inquiry is whether Tesla met its two-fold burden of (1) demonstrating that Mr. Musk met the high-level officer requirement, and (2) producing an affidavit or declaration explaining Mr. Musk’s lack of unique, personal knowledge of the issues being litigated. See In re Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So.3d at 463. There does not appear to be any dispute in this case that Mr. Musk is a high-level corporate officer, or that Tesla produced a sufficient declaration.

Once Tesla established that Mr. Musk is a high-level officer and produced the declaration, the trial court was required to issue a protective order unless Plaintiff demonstrated that he had exhausted other discovery, that such discovery was inadequate, and that Mr. Musk had unique, personal knowledge of discoverable information. See Fla. R. Civ. P. 1.280(h); see also DecisionHR USA, Inc., 341 So.3d at 457 (“This provision of the rule is written in the conjunctive, so all three factors must be demonstrated.”). As Tesla correctly argues, Plaintiff has not shown that the existing discovery is inadequate or that Mr. Musk has unique, personal knowledge of discoverable information. The only arguably unique, personal knowledge Mr. Musk may have is whether or not he remembers the phone conversation. Mr. Musk, however, has already twice provided sworn testimony attesting that he does not recall making any statements during the phone call regarding the speed limiter. Under these circumstances, requiring Mr. Musk to sit for a deposition would serve no purpose other than to harass and burden Tesla and disrupt Mr. Musk’s ability to meet his obligations to consumers, stockholders, Tesla’s employees, and other activities integral to his position as CEO. See In re Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So.3d at 460 (“Preventing harassment and unduly burdensome discovery has always been at the heart of [the apex] doctrine in our state.”).

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

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