DecisionHR USA, Inc. v. Mills
| Decision Date | 17 June 2022 |
| Docket Number | 2D21-3468 |
| Citation | 341 So.3d 448 |
| Parties | DECISIONHR USA, INC., a Florida corporation, and DecisionHR Holdings, Inc., a Florida corporation, Petitioners, v. William MILLS, III, a natural person, and CoverageHR, LLC, a Florida limited liability company, Respondents. |
| Court | Florida District Court of Appeals |
Jon P. Tasso (withdrew after briefing), Ethan J. Loeb, and Maria A. Babajanian of Bartlett, Loeb, Hinds & Thompson, PLLC, Tampa, for Petitioners.
Bryan D. Hull, James J. Evangelista, and Ian P. Stanley of Bush | Ross, P.A., Tampa, for Respondents.
Petitioners DecisionHR USA, Inc. and DecisionHR Holdings, Inc. (collectively DecisionHR) seek certiorari review of the trial court's order denying their motion for protective order. That motion sought to preclude Respondents William Mills, III, James Cote,1 and CoverageHR, LLC, from deposing Dr. John Strong, who is a director of both DecisionHR entities and the chairman and CEO of the parent company of the DecisionHR entities, Bankers Financial Corporation (Bankers). Because the trial court did not follow the requirements of Florida Rule of Civil Procedure 1.280(h), we grant the petition and quash the order on review.
From at least mid-2011 until approximately April 2015, Mr. Mills was employed by DecisionHR; the terms of his employment were memorialized in an "Executive Employment Agreement" that, among other things, imposed nondisclosure requirements upon Mr. Mills as to various confidential and proprietary business information of DecisionHR. After Mr. Mills’ employment with DecisionHR terminated, Mr. Mills and DecisionHR became embroiled in litigation to which Bankers also was a party.
In April 2016, Bankers, DecisionHR, and Mr. Mills executed a "Mediated Settlement Agreement" (settlement agreement) in which they resolved the litigation and executed mutual general releases of all claims through the date of the settlement agreement. The settlement agreement terminated Mr. Mills’ Executive Employment Agreement "except for Article 5 and 6," which were the non-disclosure and confidentiality provisions of the Executive Employment Agreement.
Mr. Cote was employed by DecisionHR from early 2013 until January 2019. Upon commencing his employment, Mr. Cote executed a document entitled "Exempt Associate Confidentiality & Invention Agreement" in favor of Bankers, its affiliates and subsidiaries. This document contained a non-solicitation provision and required Mr. Cote to keep confidential various business and proprietary information of Bankers and DecisionHR.
Within weeks of terminating Mr. Cote's employment, DecisionHR sued Mr. Mills, EmployersHR (Mr. Mills’ subsequent employer), Mr. Cote, and CoverageHR. DecisionHR alleged that after Mr. Mills’ employment with DecisionHR terminated and he began working with EmployersHR—and while Mr. Cote was still employed by DecisionHR—Mr. Mills persuaded Mr. Cote to divert DecisionHR's clients and business opportunities to EmployersHR. DecisionHR also alleged that during the same timeframe, Mr. Mills and Mr. Cote collaborated to form CoverageHR for purposes of diverting clients and business opportunities from DecisionHR. Lastly, DecisionHR alleged that Mr. Mills and Mr. Cote effectuated their plan by using DecisionHR's confidential business information and disparaging DecisionHR. Based on these allegations, DecisionHR asserted various tort claims against all the named defendants; it also asserted a claim against Mr. Mills for breaching the confidentiality obligations in the Executive Employment Agreement and claims against Mr. Cote for breaching his obligations under the Exempt Associate Confidentiality & Invention Agreement.
In June 2021, Respondents noticed Dr. Strong's videotaped deposition for September 21, 2021. Shortly after the supreme court issued its opinion in August 2021 amending Florida Rule of Civil Procedure 1.280 to codify the "apex doctrine,"2 DecisionHR filed a motion for protective order (MPO) to preclude Dr. Strong's deposition. In support, DecisionHR submitted Dr. Strong's affidavit, in which he attested that he is the chairman and CEO of Bankers, that the DecisionHR entities are subsidiaries of Bankers, and that he is a director of the DecisionHR entities. He attested that he "is not involved in the day-to-day operations of DecisionHR"; while he acknowledged signing the Mills settlement agreement for Bankers, Dr. Strong stated that the "mediation process" that led to its execution was "handled by others at Bankers." Lastly, Dr. Strong swore that he has "no unique personal knowledge of any relevant facts or circumstances underlying this lawsuit."
DecisionHR argued that the deposition should be precluded under rule 1.280(h) because Dr. Strong is a high-level official who lacks unique personal knowledge of the issues in litigation. DecisionHR also contended that Respondents had not attempted to depose any other witnesses, and thus had not exhausted other discovery and could not demonstrate that other discovery would be inadequate or that other employees would not possess information equivalent to Dr. Strong's.
Respondents submitted a memorandum opposing the motion, primarily arguing that they had attempted to depose Dr. Strong long before the supreme court adopted rule 1.280(h),3 so precluding the deposition based on the newly adopted rule would be unfair. Without providing any affidavit or deposition testimony or other evidentiary support, Respondents argued that Dr. Strong was knowledgeable about the settlement agreement with Mr. Mills and had "unique knowledge of Mills’ separation agreement." Respondents also asserted that "while Mills was employed, Dr. Strong was actively involved in creating new business opportunities for DecisionHR" and spoke with Mr. Mills (1) "daily" on unspecified matters, (2) "regularly" about employee compensation, and (3) "multiple times a month" about the "business of DecisionHR." Lastly, Respondents contended that Dr. Strong chaired Bankers’ compensation committee "while Mills was employed" and—by virtue of Dr. Strong's position as director of the DecisionHR entities and his chairmanship of Bankers—he has knowledge of "compensation discussions for highly-compensated employees," including Mr. Cote, and that such compensation is "a key issue in this case."
The trial court conducted a brief hearing on the MPO in October 2021. Ten days before the hearing, DecisionHR filed transcripts of depositions it had taken of Mr. Mills and Mr. Cote. At the hearing, DecisionHR argued that the testimony of these gentlemen confirmed Dr. Strong's lack of unique knowledge of the issues in litigation. Specifically, Mr. Cote testified that he had never been introduced to Dr. Strong and didn't know who he was. Mr. Mills testified that, during his employment, Dr. Strong was not involved in day-to-day operations of "any of the business units."
The trial court denied the motion for protective order in an unelaborated order and DecisionHR timely filed its petition for certiorari.
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." Tanner v. Hart , 313 So. 3d 805, 807 (Fla. 2d DCA 2021) (alteration in original). "The last two elements are jurisdictional and must be analyzed before the first element." Id. ; see also Miami Dade College v. Allen , 271 So. 3d 1194, 1196 (Fla. 3d DCA 2019) ().
We have jurisdiction to review the order denying the MPO because "[o]nce discovery is wrongfully granted, the complaining party is beyond relief." See Allen , 271 So. 3d at 1196. Accordingly, the dispositive question is: did the trial court depart from the essential requirements of law by denying DecisionHR's motion for protective order? Under the newly adopted "apex doctrine" rule, the answer is "yes."
The apex doctrine as codified in rule 1.280(h) is reproduced below in its entirety:
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." See In re Amend. to Fla. Rule of Civ. Proc. 1.280 , 324 So. 3d 459, 463 (Fla. 2021). Accordingly, the trial court was required to follow rule 1.280(h) when it ruled on DecisionHR's MPO in October 2021.
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