DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TESLA, INC. a/k/a 

TESLA FLORIDA, INC.,

Petitioner,

v.

EDGAR MONSERRATT, as Personal Representative of the

ESTATE OF EDGAR MONSERRATT MARTINEZ,

Respondent.

No. 4D2023-2075

[January 3, 2024]

Petition for writ of certiorari to the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Mark Alan Speiser, Judge; L.T. Case No. 

CACE-19-000422.

Wendy F. Lumish and Alina Alonso Rodriguez of Bowman and Brooke 

LLP, Miami, for petitioner.

Bard D. Rockenbach and Adam Richardson of Burlington & 

Rockenbach, P.A., West Palm Beach, and Scott P. Schlesinger, Jonathan 

R. Gdanski, and David Silverman of Schlesinger Law Offices, P.A., Fort 

Lauderdale, and Philip Harnett Corboy of Corboy & Demetrio, Chicago, 

Illinois, for respondent.

DAMOORGIAN, J.

Defendant Tesla, Inc. a/k/a Tesla Florida, Inc. (“Tesla”) seeks certiorari

review of an order compelling the deposition of its CEO, Elon Musk. For 

the reasons discussed below, we grant the petition and quash the order 

compelling deposition.

In 2018, eighteen-year-old Barrett Riley crashed his Tesla Model S 

while driving 116 mph. Barrett and one passenger, Edgar Monserratt 

Martinez, died as a result of the crash. Edgar’s father, as the personal 

representative of his son’s estate (“Plaintiff”), thereafter sued Tesla for 

negligence. The complaint alleged a Tesla service technician deactivated 

the 85-mph top speed limiting software previously enabled on the vehicle 

after Barrett complained he could not accelerate over 85 mph.
2

Following the crash and the ensuing media coverage, Mr. Musk called 

the driver’s father, James Riley, to extend his condolences. According to 

Mr. Riley, during the approximately twenty-minute phone call, 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.” Mr. Musk and Mr. 

Riley also exchanged a number of e-mails wherein Mr. Musk conveyed 

information learned in Tesla’s initial investigation of the crash.

In December 2021, Plaintiff sought to take Mr. Musk’s deposition 

regarding the phone conversation. Tesla responded that Mr. Musk was 

entitled to protection under Florida Rule of Civil Procedure 1.280(c) and 

(h). Tesla also filed Mr. Musk’s declaration in which he described his 

executive role at Tesla and other companies and stated that it would place 

a substantial burden and hardship on him if he were to be deposed. 

Mr. Musk also stated 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. Tesla also produced 

all of the e-mail correspondence between Mr. Musk and Mr. Riley. The 

original presiding judge ultimately granted Tesla’s motion for protective 

order, finding the call was a sympathy call and that Mr. Musk did not 

possess unique, personal knowledge.

After the case was administratively transferred to a different judge, 

Plaintiff again sought to depose Mr. Musk. In lieu of the deposition, Tesla 

agreed to have Mr. Musk directly respond to requests for admissions and 

interrogatories about the phone conversation. In his subsequent answers 

to the requests for admissions and interrogatories, Mr. Musk reiterated 

that, beyond extending his condolences to the family, he did not recall 

discussing the matters claimed by Mr. Riley. After receiving the underoath answers, Plaintiff again sought to compel the deposition of Mr. Musk 

regarding the phone conversation. The trial court granted the motion, 

reasoning “apparently there allegedly is a dispute as to what was said by 

Mr. Musk via-à-vis his conversation with Mr. Riley.”

“A party seeking certiorari review of a non-final order must demonstrate 

‘(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.’” DecisionHR USA, Inc. v. Mills, 341 So. 3d 448, 

452 (Fla. 2d DCA 2022) (alteration in original) (citation omitted). “The last 

two elements are jurisdictional and must be analyzed before the first 

element.” Id. (citation omitted).
3

We have jurisdiction to review the order compelling the deposition of 

Tesla’s apex officer. See Karisma Hotels & Resorts Corp. v. Hoffmann, 346 

So. 3d 59, 59 (Fla. 4th DCA 2022) (conducting plenary certiorari review of 

an order compelling the deposition of a corporate officer); DecisionHR USA, 

Inc., 341 So. 3d at 452–57 (finding that an order requiring the deposition 

of a CEO or government official satisfies the jurisdictional requirements 

for a petition for a writ of certiorari because an erroneously entered order 

would result in material injury for the remainder of the trial that cannot 

be corrected on postjudgment appeal). We therefore address 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.

In 2021, the Florida Supreme Court amended Florida Rule of Civil 

Procedure 1.280(h) to expressly adopt the apex doctrine in the corporate 

context. In re Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d 459, 461

(Fla. 2021). Rule 1.280(h) provides:

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.

Fla. R. Civ. P. 1.280(h). This rule became effective on August 26, 2021, 

and “it applies in pending cases,” including the instant case. In re Amend. 

to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d at 463; see also DecisionHR USA, 

Inc., 341 So. 3d at 453–54 (concluding “that once the supreme court 

codified the apex doctrine in rule 1.280(h), the doctrine became a clearly 

established principle of law” for purposes of determining whether a court

has departed from the essential requirements of the law).
4

Accordingly, in determining whether the trial court departed from the 

essential requirements of the law in granting the motion to compel 

deposition, 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. See In re Amend. 

to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d at 463. There does not appear 

to be any dispute in this case that Mr. Musk is a high-level corporate 

officer, or that Tesla produced a sufficient declaration.

Once Tesla established that Mr. Musk is a high-level officer and 

produced the declaration, the trial court was required to issue a protective 

order unless Plaintiff demonstrated that he had exhausted other discovery, 

that such discovery was inadequate, and that Mr. Musk had unique, 

personal knowledge of discoverable information. See Fla. R. Civ. P. 

1.280(h); see also DecisionHR USA, Inc., 341 So. 3d at 457 (“This provision 

of the rule is written in the conjunctive, so all three factors must be 

demonstrated.”). As Tesla correctly argues, Plaintiff has not shown that 

the existing discovery is inadequate or that Mr. Musk has unique, personal 

knowledge of discoverable information. The only arguably unique,

personal knowledge Mr. Musk may have is whether or not he remembers 

the phone conversation. Mr. Musk, however, has already twice provided 

sworn testimony attesting that he does not recall making any statements 

during the phone call regarding the speed limiter. Under 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. See In re 

Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d at 460 (“Preventing 

harassment and unduly burdensome discovery has always been at the 

heart of [the apex] doctrine in our state.”).

Accordingly, we conclude the trial court departed from the essential 

requirements of the law by compelling the deposition of Mr. Musk, grant 

Tesla’s petition, and quash the order compelling deposition.

Petition granted; order quashed.

LEVINE and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.