Suzuki Motor Corporation, a foreign corporation v. Scott Winckler

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-4815

_____________________________

SUZUKI MOTOR CORPORATION, a

foreign corporation,

Petitioner,

v.

SCOTT WINCKLER,

Respondent.

_____________________________

Petition for Writ of Certiorari—Original Jurisdiction.

August 29, 2019

OSTERHAUS, J.

Suzuki Motor Corporation seeks certiorari review of an order

granting an application for a letter rogatory to take the

examination of Mr. Osamu Suzuki, its current Chairman and

former Chief Executive Officer. In the order, the trial court found

that the “apex doctrine” does not apply outside the governmental

context and that Mr. Suzuki was uniquely able to provide

information relevant to this case. We deny the petition because the

trial court’s decision does not depart from the essential

requirements of law.

I.

Scott Winckler’s case alleges that on June 16, 2013, the brakes

failed on his GSX-R series Suzuki motorcycle while he was riding

it. The bike crashed and paralyzed Mr. Winckler from the waist

down. Four months after the accident, Suzuki Motor Corporation

issued a recall on the brakes of its GSX-R series motorcycles.

Mr. Winckler filed a products liability suit against Suzuki

Motor Corporation related to his accident and the brake issue. In

the course of discovery, he sought a letter rogatory from the trial

court seeking to take the examination of the Chairman of the

Board of Suzuki Motor Corporation in Japan. See Fla. R. Civ. P.

1.300(b). Mr. Winckler’s application stated that the Chairman

“possesses unique knowledge about specific facts relevant to [the]

allegations,” citing the Chairman’s involvement with a document

addressing the brake issue and a related email.

Suzuki Motor Corporation filed objections to the application

and a motion seeking protection under the apex doctrine. Its

position was that its top-level corporate manager should not be

subject to examination when others within the corporation could

testify to the relevant issues. ∗ It also filed a declaration from

Chairman Suzuki in opposition to the application, stating that he

has “no independent memory” of reviewing or signing the

document regarding the brake issue and “no personal knowledge”

of the details.

After a hearing in October 2018, the trial court granted the

motion for a letter rogatory. It found that the apex doctrine hadn’t

been applied outside of the governmental context and couldn’t be

applied to the corporate officer here. Besides rejecting the apex

doctrine, the court found that that the Chairman had personal

involvement and could uniquely provide case-relevant information

due to having personal involvement with the brake issue. After the

trial court granted the application, this petition for writ of

certiorari followed.

∗

Mr. Winckler’s counsel deposed Suzuki Motor Corporation’s

corporate representative earlier this year but weren’t satisfied

with some of his answers.

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II.

We review petitions for writ of certiorari for “(1) a departure

from the essential requirements of the law, (2) resulting in

material injury for the remainder of the case (3) that cannot be

corrected on postjudgment appeal.” Citizens Prop. Ins. Corp. v. San

Perdido Ass’n, 104 So. 3d 344, 351 (Fla. 2012) (citations omitted).

Our analysis focuses on the first prong—a departure from the

essential requirements of the law. A departure from the essential

requirements of the law is “a violation of a clearly established

principle of law.” State v. Belvin, 986 So. 2d 516, 525-26 (Fla. 2008)

(quoting Belvin v. State, 922 So. 2d 1046, 1048 (Fla. 4th DCA

2006)).

Suzuki Motor Corporation argues that the trial court’s order

granting a letter rogatory violates the apex doctrine. The problem

with its argument is that the doctrine is only clearly established in

Florida in the government context, with respect to high-ranking

government officials. The essence of Florida’s apex doctrine is that

“[an] agency head should not be subject to deposition, over

objection, unless and until the opposing parties have exhausted

other discovery and can demonstrate that the agency head is

uniquely able to provide relevant information which cannot be

obtained from other sources.” Dep’t of Agric. & Consumer Servs. v.

Broward Cty., 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002)

(emphasis added). “[A] party seeking to depose a . . . high-ranking

governmental official must demonstrate the personal involvement

of the official in a material way or the existence of extraordinary

circumstances.” Horne v. Sch. Bd. of Miami-Dade County, 901 So.

2d 238, 241 (Fla. 1st DCA 2005) (emphasis added). We highlight

“agency head” and “governmental official” because we have noted

before that “no Florida court has adopted the apex doctrine in the

corporate context.” Fla. Office of Ins. Regulation v. Fla. Dep’t of

Fin. Servs., 159 So. 3d 945, 951 (Fla. 1st DCA 2015); see also

Remington Lodging & Hospitality, LLC v. Southernmost House,

Ltd., 206 So. 3d 764, 765 n.1 (Fla. 3d DCA 2016). We emphasized

in that case (though in dicta) “that the government context is

distinguishable [from the corporate context] because of separation

of powers concerns.” Id. And so, it follows that because

the apex doctrine hasn’t been adopted in the corporate context, the

trial court did not depart from the essential requirements of the

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law by refusing to apply this doctrine to Suzuki Motor

Corporation’s corporate officer.

Moreover, trial court’s decision that the Chairman’s

deposition was reasonably calculated to lead to the discovery of

admissible evidence provides no basis for us to quash the order

below. See Fla. R. Civ. P. 1.280(b)(1) (allowing a party to discover

any matter that is not privileged and is relevant to the subject

matter of the pending action or appears reasonably calculated to

lead to the discovery of admissible evidence); Univ. of W. Fla. Bd.

of Trs. v. Habegger, 125 So. 3d 323, 325 (Fla. 1st DCA 2013). In

deciding whether to grant a writ of common-law certiorari, we are

not so much concerned with “the mere existence of legal error as

much as with the seriousness of the error.” Combs v. State, 436 So.

2d 93, 95-96 (Fla. 1983). The district court should grant a petition

“only when there has been a violation of a clearly established

principle of law resulting in a miscarriage of justice.” Id.; see also

Jones v. State, 477 So. 2d 566, 569 (Fla. 1985) (Boyd, C.J.,

concurring specially) (noting that a “departure from the essential

requirements of law . . . means an inherent illegality or

irregularity, an abuse of judicial power, an act of judicial tyranny

perpetrated with disregard of procedural requirements, resulting

in a gross miscarriage of justice).” Here, we are mindful that trial

courts have broad discretion in overseeing discovery and in

protecting persons from whom discovery is sought. Fla. R. Civ. P.

1.280(c); Rojas v. Ryder Truck Rental, Inc., 641 So. 2d 855, 857

(Fla. 1994). In this instance, the trial court’s order cited specific

evidence supporting its conclusion that the Chairman was

personally involved with recall-related corporate documents and

uniquely able to provide relevant information. Cf. Remington

Lodging & Hospitality, 206 So. 3d 764; Racetrac Petroleum v.

Sewell, 150 So. 3d 1247 (Fla. 3d DCA 2014). With documentary

support underlying its ruling, we cannot conclude that this

situation is like the Habegger and General Star Indemnity Co. v.

Atlantic Hospitality of Florida, LLC, 57 So. 3d 238 (Fla. 3d DCA

2011), cases where trial courts departed from the essential

requirements of law by allowing depositions of high officials that

were not reasonably calculated to lead to the discovery of relevant

evidence.

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III.

The petition for writ of certiorari is DENIED.

ROWE, J., concurs; B.L. THOMAS, J., dissents with opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

B.L. THOMAS, J., dissenting.

This case involves a tragic accident that resulted in

catastrophic injuries. Nevertheless, I must respectfully dissent

because the apex doctrine is and must be equally applicable in the

private sector as it is in the governmental context. And even

assuming the doctrine’s basis in the governmental context is

grounded in the separation of powers under article II, section 3 of

the Florida Constitution, see Fla. Office of Ins. Regulation v. Fla.

Dept. of Financial Services, 159 So. 3d 945, 952 (Fla. 1st DCA

2015), the abusive discovery allowed here has no basis in law or

fact and under traditional rules of relevancy, extraordinary relief

must be granted. Allowing discovery not meant to ferret out the

truth, but designed to create settlement pressures, threatens the

proper operation of the commercial enterprise for no legitimate

factfinding purpose.

To answer the question by stating that the trial court’s ruling

cannot be a departure from law because no law recognizes the apex

doctrine in the corporate context is no answer at all, because

otherwise the doctrine could never be applied. That is precisely why

Florida courts permit extraordinary review of improper discovery

orders by writs of certiorari under Art. V, section 4(b)(3), Fla.

Const.; Fla. R. App. P. 9.030 (b)(2)(A); Allstate Ins. Co. v. Langston,

655 So. 2d 91, 94-95 (Fla. 1995). Here, we should grant the writ

and quash the order.

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Respondents persuaded the lower court to allow for the

issuance of letters rogatory to take the deposition of Osamu

Suzuki, former Chief Executive Officer and current chairman of

Suzuki Motor Corporation and resident of Japan. This petition

involves a challenge to a one-page document, one of more than

250,000 pages of documents provided to Respondents, which

provides a list of issues relevant to the suit involving a “GSX R

series Front brake pressure loss.”

Mr. Suzuki filed a “Declaration in Opposition to Plaintiff’s

Application for Letter Rogatory” under penalty of perjury pursuant

to section 95.525, Florida Statutes, that he has “no independent

memory” of signing the document. And he “cannot recollect [his

signature] even after reviewing the document” which he signed

more than five years before he filed the statement in opposition.

Most significantly, actions by the “Quality Countermeasure

Committee” involving the allegedly defective front-brake pressure

could not be ordered, rejected, or modified by Mr. Suzuki. Finally,

Mr. Suzuki stated, again under penalty of perjury, that he “did not

prepare the document, and even what I might have known about

it in 2013 would have been told to me by someone else in the

Corporation. I would have had at that time no personal knowledge

of the details in that document.” (emphasis added.).

To keep this case in context, it must also be noted that

plaintiffs deposed the Suzuki Motor Company’s corporate

representative for three days. It was not until Respondents

amended their response to the petition before us that the court

learned that this extensive discovery was purportedly

unsatisfactory. Even more revealing, the Respondents have failed

to set a single deposition of any member of the Quality

Countermeasure Committee, the sole body with the authority to

decide what measures if any to take regarding the allegedly

defective product part.

To allow this unjustified deposition is to allow Respondents to

disrupt the functions of the Petitioner for no legitimate reason. Mr.

Suzuki is “involved in governmental affairs in various countries

[in which Suzuki] does business including domestically, ongoing

financial matters, exchange rate issues, expanding and enhancing

the multiproduct line of [Suzuki] products domestically and

internationally. Accordingly, he is “chronically busy with

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important and business management issues as [Suzuki]’s

Chairman, meeting with other [Suzuki] high level executives. . . on

[a] regular basis, meeting with government officials and

representatives from all countries around the world in which

Suzuki does business, regular speaking engagements to industry

and business groups, making public appearances representing

Suzuki, and regular meeting with major corporate stockholders on

the status of Suzuki business.” Thus, if Mr. Suzuki is required to

give testimony in this case, which would obviously result in being

required to give testimony in hundreds of other cases, the

deposition here would “substantially interfere with [his] job

responsibilities as Chairman”.

The trial court’s order allowing this discovery abuse cited no

justification other than “it is appropriate for Plaintiff to be granted

an opportunity to discover from the Chairman, Mr. Suzuki, his

perspective on the contents of the Document and Email.” But in

the face of sworn testimony that Mr. Suzuki has no recollection

and had no authority to affect the decision regarding the recall or

otherwise addressing the allegedly defective product, there can be

only one logical conclusion: the discovery request of the top

corporate chairman of a worldwide company with tens of

thousands of employees who has provided an unrefuted statement

of no involvement in the issue and a recitation of his extensive

corporate leadership responsibilities can only be designed to

harass and attempt to force a settlement to avoid significant

corporate disruption. The trial court’s order is thus a departure

from the essential requirements of law for which Suzuki has no

adequate remedy on appeal. Horne v. School Bd. or Miami-Dade

County, 901 So. 2d 238 (Fla. 1st DCA 2005); Dep’t of Agric. &

Consumer Servs. v. Broward Cty., 810 So. 2d 1056, 1058 (Fla. 1st

DCA 2002).

In Broward County, this court applied the apex doctrine to

prohibit the deposition of Agriculture Commission Charles

Bronson in a rule-challenge proceeding. We said this:

We agree with the department that the ALJ abused

his discretion in denying the motion for protective order.

In circumstances such as these, the agency head should

not be subject to deposition, over objection, unless and

until the opposing parties have exhausted other discovery

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and can demonstrate that the agency head is uniquely

able to provide relevant information which cannot be

obtained from other sources. To hold otherwise would, as

argued by the department, 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.

810 So. 2d at 1058 (emphasis added).

We reiterated and reaffirmed the rule in Horne v. School Bd.

or Miami-Dade County, 901 So. 2d 238 (Fla. 1st DCA 2005), when

we applied the apex doctrine to former governmental officials. We

noted that application would help ensure that qualified people do

not seek elevated public positions for fear of post-public

employment discovery entanglements.

In Fla. Office of Ins. Regulation v. Fla. Dept. of Financial

Services, 159 So. 3d 945 (Fla. 1st DCA 2015), this court discussed

the apex doctrine in more detail than in earlier cases and stated:

The concern of setting such a precedent has been the

foundation of this court's reasoning in cases in which it

has precluded the deposition of agency heads. See Univ.

of W. Fla. Bd. of Trustees v. Habegger, 125 So.3d 323, 325

(Fla. 1st DCA 2013), review denied, 143 So.3d 918 (Fla.

2014) (“[C]ompelling the deposition of President Bense in

this context could have future widespread ramifications

and subject her to depositions in numerous other

employment disputes.”); Dep't of Agric., 810 So.2d at 1058

(“To hold otherwise would, as argued by the department,

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.”). The time spent preparing and

testifying in this case will take away from the Insurance

Commissioner's duties and responsibilities as an agency

head for the state of Florida, and the precedent served by

compelling him to testify will create “a significant

deterrent to qualified candidates seeking public service

positions.” Horne, 901 So.2d at 241. To allow an agency

head to give speculative testimony concerning what

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might have been done with accurate information would

constitute a serious intrusion into the executive branch of

government.

For the foregoing reasons, we find the circuit court's

order compelling the Insurance Commissioner to appear

for a deposition is a departure from the essential

requirements of the law that will cause irreparable harm

that cannot be remedied on appeal. See Horne, 901 So.2d

at 240 (“Orders granting discovery requests have

traditionally been reviewed by certiorari because once

discovery is wrongfully granted, the complaining party is

beyond relief.”).

159 So. 3d at 952–53. This logic is clearly equally applicable in the

corporate context albeit not based on Art. II, section three, Fla.

Const.

To allow meritless discovery depositions of corporate leaders,

who have provided sworn statements that they have no

discoverable knowledge of the issue at hand, or that such

information can be obtained from persons with less corporate

responsibilities, is to allow illegitimate disruption in the private

sector that is forbidden in the public sector. While the separation

of powers certainly compels the application of the apex doctrine in

the public sphere, the rationale of the doctrine is equally applicable

in the private sphere: the courts cannot countenance unjustified

discovery of lead corporate executives for no legitimate reason.

In Florida Office of Insurance Regulation v. Florida

Department of Financial Services, we specifically stated we were

not addressing the issue of whether it applied in the corporate

context: “It is unnecessary for us to address whether the apex

doctrine applies in the corporate context, and we specifically

decline to do so in this opinion.” 159 So. 3d at 951 n.3. (Our note

that we need not address the question implies that the doctrine

could apply in the corporate context). But we recognized that:

Some state and federal courts refer to this doctrine

as the “apex” doctrine, in the context of both high-ranking

government and corporate officials. See, e.g., State ex rel.

Massachusetts Mut. Life Ins. Co. v. Sanders, 228 W.Va.

749, 724 S.E.2d 353, 363 (2012) (adopting the “apex”

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doctrine in the corporate context and noting that doctrine

is “analogous to the approach this Court adopted for use

when a party seeks to depose [a] high-ranking

governmental official”); Crown Cent. Petroleum Corp. v.

Garcia, 904 S.W.2d 125 (Tex.1995) (applying the “apex”

doctrine to the deposition of a corporate officer).

159 So. 3d at 950–51.

Other state and federal courts have applied the apex doctrine

in the corporate context. Sun Capital Partners, Inc. v. Twin City

Fire Ins. Co., 310 F.R.D. 523, 527-29 (S.D. Fla. 2015) (prohibiting

deposition of corporate co-founders); Alberto v. Toyota Motor Corp.,

796 N.W. 2d 490, 497 (Mich. Ct. App. 2010) (prohibiting

depositions of Toyota executives in products-liability case where

executives possessed no more than “generalized knowledge of

Toyota’s unintended acceleration problems”); State ex rel. Mass.

Mut. Life Ins. Co. v. Sanders, 724 S.E.2d 353, 364 (W. Va. 2012)

(cited above); Liberty Mut. Ins. Co. v. Superior Court, 13 Cal. Rptr.

2d 363, 367-68 (Cal. Ct. App. 1992) (adopting apex doctrine and

prohibiting deposition of president of company with no knowledge

of claims). We should apply it now to this case.

Furthermore, whether the rationale for granting certiorari

relief here is labeled the “apex doctrine” or we simply apply

fundamental law applicable to prevent discovery abuse which “is

not reasonably calculated to lead to the discovery of admissible

evidence,” we should grant the writ:

Certiorari is available to review a discovery order

which departs from essential requirements of law and

causes injury that has no adequate remedy in a

subsequent appeal. Banc of Am. Inv. Servs. v. Barnett,

997 So.2d 1154, 1155 (Fla. 3d DCA 2008). The order

departs from essential requirements of law because

Atlantic Hospitality has not shown that the president's

deposition is “reasonably calculated to lead to the

discovery of admissible evidence” under Florida Rule of

Civil Procedure 1.280. See Granada Ins. Co. v. Ricks, 12

So.3d 276, 277 n.1 (Fla. 3d DCA 2009). General Star has

shown that its president is a manager, not an adjuster or

10

other employee with personal knowledge of the factual

disputes involved in the lawsuit.

Gen. Star Indem. Co. v. Atl. Hosp. of Fla., LLC, 57 So. 3d 238, 239

(Fla. 3rd DCA 2011). The facts here readily support granting

extraordinary relief, where Respondents have failed to depose any

member of the relevant corporate committee, spent three days

deposing the corporate representative, and have no legitimate

reason to depose Mr. Suzuki, and this will subject him to countless

other illegitimate discovery requests.

As the Third District noted in a very similar case of discovery

abuse:

The injury that cannot be remedied in a subsequent,

plenary appeal is described by General Star's president

in her affidavit:

12. As President and Chief Executive Officer of

General Star Management Company, my

signature appears on every policy issued by

General Star Indemnity Company in the State

of Florida as a standard, pre-printed signature

on all policies.

13. Because of the size and nature of the

insurance business the number of people

insured by General Star, Genesis, and General

Re, the insureds and reinsureds of these entities

are involved in hundreds of lawsuits throughout

the United States. If I were summoned as a

deponent to testify in each of those cases, I

would not have time to fulfill my duties as an

executive officer of Genesis, General Star or

General Re, as I could literally be in depositions

every single day. It would be extremely

disruptive to my responsibilities to any one of

these companies and its policyholders if I were

to give depositions in cases involving individual

insureds, when I was not involved with their

claims or policies, as is the case here.

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I have not participated in the above-captioned

litigation, or in the underlying insurance claim,

or in the underwriting of the subject policy, and

I am filing this affidavit in support of a motion

for protective order.

This is an obvious but compelling point. The job of the

president of the company is to manage the company, not

to fly around the United States participating in

depositions about policy-related claim disputes of which

the president has no personal knowledge. While the out-

of-pocket costs of such an exercise can be calculated and

shifted if appropriate at the conclusion of the case (or in

a separate sanctions motion), the effect on the company

is much more difficult to measure. If all claimants

demand and obtain the same right, the chief executive

officer manages his or her deposition schedule, not the

company.

57 So. 3d at 239-40 (emphasis added).

Our facts here are almost identical. A chairman of a worldwide

company, involved in hundreds of lawsuits, cannot be subjected to

discovery which is not reasonably calculated to lead to the

admission of relevant evidence where less intrusive means of

obtaining relevant evidence in discovery have not been attempted,

and the consequent disruption of corporate function cannot be

remedied on appeal.

We should grant the writ and order the trial court to grant the

protective order. Therefore, I respectfully dissent.

_____________________________

Raoul G. Cantero of White & Case LLP, Miami, and Larry M. Roth

of Larry M. Roth, P.A., Winter Park, for Petitioner.

Maegen Peek Luka and Celene H. Humphries of Brannock &

Humphries, Tampa, for Respondent.

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