ERROR TO COMPEL DEPOSITION OF DEFENDANT AUTOMOBILE MANUFACTURER CEO REGARDING A PHONE CONVERSATION – – ONCE DEFENDANT ESTABLISHED THAT CEO WAS A HIGH-LEVEL OFFICER AND PRODUCED A DECLARATION EXPLAINING HIS LACK OF UNIQUE PERSONAL KNOWLEDGE, THE TRIAL COURT WAS REQUIRED TO ISSUE A PROTECTIVE ORDER UNLESS PLAINTIFF COULD DEMONSTRATE HE HAD EXHAUSTED ALL OTHER DISCOVERY, THAT DISCOVERY WAS INADEQUATE, AND THE CEO HAD UNIQUE KNOWLEDGE
Tesla, Inc. v. Monserratt, 49 Fla. L. Weekly D85 (Fla. 4th DCA Jan. 3, 2024):
An eighteen year old crashed his Tesla driving at 116 mph. Both the driver, and the decedent in the wrongful death case died as a result of the crash. The complaint alleged that a Tesla service technician deactivated the 85-mph top speed limiting software after the driver complained he could not accelerate over that speed.
Following the crash and ensuing media coverage, Elon Musk called the driver’s father to extend his condolences. During the approximately twenty-minute phone call, Musk said something to the effect that maybe it was a mistake to remove the limiter, and maybe Tesla should review and revise its policies. Musk and the defendant driver’s father also exchanged a number of emails where Musk had conveyed information learned in Tesla’s initial investigation into the crash.
The plaintiff sought to depose Elon Musk based on that phone conversation. Musk served a declaration stating he had no independent recollection of the phone call beyond what was in the email communications and his extension of condolences.
In lieu of the deposition, Tesla agreed to have Mr. Musk respond directly to requests for admissions and interrogatories about the conversation. He reiterated what he had said previously about his lack of knowledge. The trial court granted the motion to compel the deposition of Mr. Musk, and Tesla petitioned for a writ of certiorari.
In 2021 the Florida Supreme Court amended Rule 1.280(h) to expressly adopt the “apex doctrine” in the corporate context, protecting high level officers from being subject to depositions. The rule allows a protective order when the high-level person files an affidavit stating that he or she has unique personal knowledge of the issues being litigated. If the officer meets that burden of production, the party seeking the deposition must demonstrate it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique personal knowledge of discoverable information.
Once Tesla established that Musk is a high-level officer and produced his declaration, the trial court was required to issue a protective order because the plaintiff failed to meet his burden, leading the court to quash the order compelling the deposition.