Abstract illustration of business people around a conference table.

Updated November 25, 2019 to reflect the court’s order on motion for rehearing, granting the appellant’s request to certify a question of great public importance

In Suzuki Motor Corp. v. Winckler (Fla. 1st DCA Aug. 29, 2019), a divided panel of the First District Court of Appeal held that Plaintiff’s counsel in a personal injury case could take the deposition of Osamu Suzuki, the former CEO and current chairman of Suzuki Motor Corporation. The majority opinion held that the trial court did not depart from the essential requirements of the law by declining to apply the apex doctrine in this case.

In this products liability case, Plaintiff alleges that he was seriously injured in a crash because his Suzuki motorcycle’s brakes failed. Suzuki later issued a recall on the brakes installed on Plaintiff’s motorcycle.

Apparently unsatisfied with the deposition testimony of Suzuki’s corporate representative, Plaintiff’s counsel requested the deposition of Mr. Suzuki. Plaintiff successfully argued that, because Mr. Suzuki had signed a document related to the recall, he possessed unique information relevant to the facts of the case.

Suzuki opposed Plaintiff’s attempt to depose Mr. Suzuki pursuant to the apex doctrine. The apex doctrine holds that the high-ranking officials of an organization should not be compelled to give deposition testimony unless the opposing parties have exhausted other avenues of discovery, and the official has a unique ability to provide relevant information that cannot be obtained from other sources.

The majority opinion agreed with the trial court’s determination that the apex doctrine in Florida has only been clearly applied to governmental agencies, not corporations. Moreover, the majority held that there was a legitimate basis in the record to suggest that Mr. Suzuki had personal knowledge of the issues. Thus, under the strict certiorari standard that governs pretrial appellate review of discovery orders, there was no departure from the essential requirements of the law.

Judge Thomas provided a lengthy dissent to the majority’s opinion. He argued that Plaintiff had not made a proper showing that Mr. Suzuki’s testimony was relevant. Judge Thomas noted that Mr. Suzuki’s signature only appeared on a single one-page document among a production of more than 250,000 pages of documents, and that Mr. Suzuki filed an affidavit denying any personal knowledge of the document. Moreover, the evidence showed that Mr. Suzuki himself did not have the authority to issue recalls; rather, recall decisions were made by an independent Quality Countermeasure Committee. Tellingly, Plaintiff never sought to depose any member of the Committee.

Based on the facts of the case, Judge Thomas concluded that the deposition could not be justified on relevance grounds, and thus was intended to harass the corporation, and attempt to force a settlement in order to avoid significant corporate disruption. Judge Thomas further noted the potential for widespread disruption if the executives of large corporations could be compelled to testify in hundreds of routine lawsuits involving the corporation, despite an executive’s lack of personal knowledge of the facts of a given case.

After the original opinion was issued, the First DCA granted Suzuki’s motion to certify a question of great public importance to the Florida Supreme Court. The certified question, as phrased by the court, asks: “Does a trial court depart from the essential requirements of law by not requiring a party seeking to depose the top officer of a corporation to show that (1) other means of discovery have been exhausted and (2) the corporate officer is uniquely able to provide relevant information that cannot be obtained from other sources? stated differently, does a departure from the essential requirement of law occur when the so-called apex doctrine, which applies to governmental entities is not applied to a corporation?”

By certifying a question of great public importance, the First DCA gives the Florida Supreme Court the opportunity to decide whether the apex doctrine should apply in Florida.