Florida Appeals Court Quashes Effort to Depose Elon Musk in fatal Tesla crash case citing Florida’s Apex Doctrine.
Barrett Riley crashed his Tesla Model X driving 116 mph. Riley, along with his passenger, Edgar Monserratt (estate of Monserratt is respondent) died in the crash.
Monserratt’s father, as personal representative, sued Tesla for negligence alleging that a Tesla service technician deactivated the control to allow the car to go no faster than 85 mph. After the crash, Elon Musk called the Riley’s father, James Riley to offer his condolences. At some point during the conversation, Mr. Musk said, according to James Riley something to the effect of, “perhaps we should not have removed the limiter.”
The estate of Monserratt sued Tesla in Broward Circuit Court, in Fort Lauderdale, Florida. In December of 2021, Plaintiff sought to take Mr. Musk’s deposition regarding the phone call. Mr. Musk signed an affidavit denoting the conversation as a sympathy call. The affidavit also explained his roles and duties at Tesla, as well as a deposition causing substantial burden and hardship for him. Outside of the sympathetic aspect of the phone call, Musk had no personal knowledge of the situation.
The matter was then administratively transferred to another judge, and Plaintiff once more sought to depose Musk. In lieu of deposition, Musk agreed to respond to discovery (answered ROGS and RFPs) where he once more reiterated that the phone call was made for sympathetic purposes only and he had no other personal knowledge of the situation. Plaintiff once more sought to compel deposition of Musk, and the trial court granted the motion reasoning that there was a dispute as to what was said during the phone conversation.
Rule/Analysis
In 2021, the Florida Supreme Court amended Fla. R. Civ. P. 1.280(h) to expressly adopt the apex doctrine in the corporate context.
The rule states: 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.
The rule became effective as of August 26, 2021, and applies to pending cases, inclusive of this one.
In determining whether the trial court departed from the essential requirements of law in granting the motion to compel deposition, the inquiries relevant were whether (1) Tesla demonstrated that Musk met the high level officer requirement, and (2) Tesla produced an affidavit stating Musk had no unique personal knowledge of the issues being litigated.
The Court determined that Musk met the standard of being a high level officer and the affidavit was produced sufficiently.
As such, the trial court was required to issue a protective order unless the Plaintiff could demonstrate exhausted other means of discovery, that such discovery was inadequate, and that Musk had unique personal knowledge of discoverable information.
The only arguable unique information Musk possesses is whether or not he remembered the phone conversation. Musk has twice provided responses saying as such. The Court determined that a deposition of Musk at this point would only serve to harass and burden Tesla, and disrupt Musk’s duties as CEO of Tesla.
The trial court departed from the essential requirements of law by compelling Musk for deposition. Therefore, the petition was granted, and the order for deposition was quashed.
This analysis was provided by Assouline & Berlowe (@assoulineberlowe) Litigation Associate Daniel B. McCain, Esq. in Miami. To reach Daniel, or Eric N. Assouline, who works with Daniel contact the Miami office at 305-567-5576.
Eric N. Assouline’s email address is: ena@assoulineberlowe.com
Daniel B. McCain’s email address is: dbm@assoulineberlowe.com
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