Imagine that you represent a client that was injured in a collision with a Tesla. You suspect, based on the facts you’ve gathered so far, that the vehicle’s autopilot system had something to do with causing the crash.
If you sued Tesla, could you compel Elon Musk’s deposition? Florida has recently adopted the “apex doctrine,” codified at Florida Rule of Civil Procedure 1.280(h), governing the depositions of “high-level” officers.
Tesla’s lawyers would vigorously object to the deposition. They would claim that Mr. Musk is far too busy producing electric cars, rockets, tunnels, and flamethrowers, and simply does not have time to sit for a deposition. They would argue that compelling Mr. Musk’s deposition would be an unfair distraction from his efforts to make humanity an interplanetary species. They would argue that Mr. Musk’s valuable time risked being completely consumed if he were compelled to appear for deposition in every lawsuit involving a Tesla collision.
Under Rule 1.280(h), Tesla’s lawyers would have the initial burden of proof on seeking the protections of the apex doctrine. First, they would assert that Mr. Musk is a “high level” officer of Tesla. Rule 1.280 does not contain a specific definition of a “high level officer,” and the Florida Supreme Court has instructed the courts to be guided on this issue by existing nationwide case law.
Next, Mr. Musk would need to provide an affidavit explaining that he lacks unique, personal knowledge of the issues being litigated. The affidavit must be detailed enough for the court to examine the plausibility of the officer’s claimed lack of knowledge. In our hypothetical, Mr. Musk might claim that he knows nothing about your client’s incident, and that he does not have unique information about how the relevant systems were designed or manufactured.
Even if the trial court finds that Tesla has met this initial burden for protection from a deposition, it may still be possible to take Mr. Musk’s deposition. Under Rule 1.280(h), the burden shifts to the party seeking the deposition to prove that it has exhausted other possible discovery, that prior discovery has been inadequate, and that the officer has unique, personal knowledge of discoverable information.