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On occasion, we will have a client ask whether their company’s CEO will have to testify if the matter proceeds to litigation. Recently, the Fourth District Court of Appeal provided guidance on what is known as the “apex doctrine,” which governs depositions of individuals at the highest levels of corporations. This blog post will discuss the court’s opinion in Tesla, Inc. v. Monserratt, No. 4D2023-2075 (Fla. 4^th DCA Jan. 3, 2024), and discuss its implications for cases moving forward.[1]

The facts of Monserrat are tragic. The case involved a 2018 accident where an 18-year-old crashed his Tesla Model S while driving 116 miles per hour.[2] The driver and his passenger died in the crash.[3] Subsequently, the father of the passenger sued Tesla for negligence, alleging that “a Tesla service technician deactivated the 85-mph top speed limiting software previously enabled on the vehicle” at the driver’s behest.[4] Following the crash and ensuing media coverage, Elon Musk, CEO of Tesla, called the driver’s father to extend his condolences.[5] According to the father, during the course of the conversation Mr. Musk “‘said something to the effect of, perhaps we should not have removed the limiter. We will have to review and revise our policies.’”[6] Mr. Musk and the father also exchanged e-mails where “Mr. Musk conveyed information learned in Tesla’s initial investigation of the crash.”[7]

Subsequently, the plaintiff sought to depose Mr. Musk regarding the conversation with the driver’s father.[8] Tesla asserted that Mr. Musk was entitled to protection under Florida Rule of Civil Procedure 1.280(c) and (h).[9] In a declaration filed by Tesla, Mr. Musk described his executive role in the company and other companies and “stated that it would place a substantial burden and hardship on him if he were to be deposed.”[10] Mr. Musk also asserted, under penalty of perjury, that “he had no independent recollection of the phone call beyond what was in the e-mail communications and his extension of condolences.”[11] Tesla did produce the e-mails between Mr. Musk and the father of the driver.[12] The presiding judge granted Tesla’s motion for protective order (blocking the deposition of Mr. Musk), “finding that the call was sympathy call and that Mr. Musk did not possess unique, personal knowledge.”[13]

After the case was transferred to another judge as part of a routine administrative transfer process, Plaintiff again sought to depose Mr. Musk.[14] In lieu of the deposition, Tesla agreed to have Mr. Musk respond to requests for admissions and interrogatories about the phone call.[15] Mr. Musk reiterated that he did not recall discussing the matters claimed by the father, besides extending his condolences.[16] After receiving the answers, Plaintiff again sought to compel the deposition of Mr. Musk.[17] The new trial judge granted the request, reasoning “‘apparently there allegedly is a dispute as to what was said by Mr. Musk via-à-vis (sic) his conversation with [the father].’”[18] Tesla timely sought review of that determination by filing a petition for writ of certiorari.[19]

The Fourth District Court addressed “the merits of the petition—whether the trial court departed from the essential requirements of the law when it granted Plaintiff’s motion to compel the deposition of Mr. Musk.”[20] In reaching its decision that the trial court did err, the court began by setting forth the text of rule 1.280(h), Florida Rules of Civil Procedure, as adopted in 2021.[21] That rule provides:

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.[22]

The Fourth District Court noted that in deciding whether the trial court erred, “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.”[23]

The court held that the Plaintiff did not demonstrate that the existing discovery was inadequate or that Mr. Musk possessed unique, personal knowledge.[24] The court noted that Mr. Musk twice denied making any statements during the call regarding the limiter.[25] The court determined that “[u]nder 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.”[26] The court therefore granted Tesla’s petition and quashed (i.e., voided) the court’s order compelling Mr. Musk’s deposition.[27]

As the Monserratt opinion demonstrates, Florida courts are now reluctant to subject high-level government or corporate officers to depositions, absent certain circumstances. As two authors have  noted, Florida was the first state to codify the apex doctrine “as a stand-alone rule of civil procedure.”[28] The doctrine is designed to protect high-ranking government officials and corporate officers from harassment and discovery abuses.[29] In determining whether an individual is a high-level officer, courts will look to well-established precedent.[30] It is important to note that the party seeking the deposition of the officer will have the opportunity to demonstrate “that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of the discoverable information.”[31] Reviewing the text of rule 1.280(h) and the pertinent case law is vital in those matters where a party contemplates deposing a high-level government or corporate officer.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The opinion is available on the Fourth District Court of Appeal’s website at the following link: https://4dca.flcourts.gov/content/download/1702694/opinion/Opinion_2023-2075.pdf (last visited Feb. 2, 2024).

[2] Monserratt, at *1.

[3] Id.

[4] Id.

[5] Id., at *2.

[6] Id.

[7] Id.

[8] Id.

[9] Id. Florida Rule of Civil Procedure 1.280(c) involves protective orders in discovery disputes, while 1.280(h) sets forth the apex doctrine. The rules can be found at the following link: https://www-media.floridabar.org/uploads/2023/12/Civil-Procedure-Rules-01-01-24.pdf (last visited Feb. 2, 2024).

[10] Monserratt, at *2.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id., at *3.

[21] Id.

[22] Id.

[23] Id., at *4.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Mark A. Behrens & Christopher E. Appel, Florida Supreme Court Leads on Apex Doctrine, American Bar Association (Mar. 9, 2022), available at https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2021-22/winter/florida-supreme-court-leads-apex-doctrine/ (last visited Feb. 2, 2024). According to Behren and Appel, “Florida’s approach provides a clear expression of the doctrine that should serve as a model for other states.” Id.

[29] See id.

[30] Id.

[31] Fla. R. Civ. P. 1.280(h).

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