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 
2

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.
3

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 
4

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.
5

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.
6

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 
7

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 
8

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 
9

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” 
10

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 
11

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.
12

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 outof-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.