WEBVTT 00:00:02.467 --> 00:00:03.100 THE COURT WILL PREPARE TO TAKE 00:00:03.100 --> 00:00:03.700 UP THE SECOND CASE ON TODAY'S 00:00:03.700 --> 00:00:12.067 DOCKET. 00:01:29.967 --> 00:01:32.400 >> THE COURT WILL TAKE UP THE 00:01:32.400 --> 00:01:39.600 SECOND CASE ON OUR DOCKET, 00:01:39.600 --> 00:01:40.233 SUZUKI MOTOR CORPORATION VERSUS 00:01:40.233 --> 00:01:40.600 SCOTT WINCKLER. 00:01:40.600 --> 00:01:46.500 >> MAY IT PLEASE THE COURT, 00:01:46.500 --> 00:01:49.933 RAOUL CANTERO FOR SUZUKI MOTOR 00:01:49.933 --> 00:01:50.500 CORPORATION RESERVING FOUR 00:01:50.500 --> 00:01:55.300 MINUTES FOR A LITTLE. 00:01:55.300 --> 00:01:55.933 IT IS A PRODUCT LIABILITY CASE 00:01:55.933 --> 00:01:58.733 AGAINST SUZUKI PENDING IN 00:01:58.733 --> 00:01:59.300 JACKSONVILLE, FLORIDA, THE 00:01:59.300 --> 00:02:05.333 PLAINTIFF EXAMINED THE CHAIRMAN 00:02:05.333 --> 00:02:05.900 AND FORMER CEO OF SUZUKI IN 00:02:05.900 --> 00:02:09.367 JAPAN WITH NO KNOWLEDGE OF THE 00:02:09.367 --> 00:02:09.900 CASE OF THE CIRCUMSTANCES 00:02:09.900 --> 00:02:18.200 LEADING UP TO IT. 00:02:18.200 --> 00:02:18.833 WE SUBMIT REGARDLESS WHETHER THE 00:02:18.833 --> 00:02:19.467 COURT ADOPTS THE APEX DOCTRINE, 00:02:19.467 --> 00:02:21.933 IT SHOULD QUASHED THE FIRST DCA 00:02:21.933 --> 00:02:24.500 DECISION AND THERE WAS NO 00:02:24.500 --> 00:02:29.067 EVIDENCE THE EXAMINATION OF THE 00:02:29.067 --> 00:02:33.167 CHAIRMAN WOULD BE LIKELY TO LEAD 00:02:33.167 --> 00:02:33.767 TO THE DISCOVERY OF EVIDENCE. 00:02:33.767 --> 00:02:34.233 >> SORRY TO INTERRUPT. 00:02:34.233 --> 00:02:36.567 COULD I ASK ABOUT THIS 00:02:36.567 --> 00:02:41.667 DECLARATION? 00:02:41.667 --> 00:02:42.300 IT SEEMS LIKE OBVIOUSLY IT IS A 00:02:42.300 --> 00:02:47.267 MATTER OF COMMON SENSE. 00:02:47.267 --> 00:02:47.867 I CAN'T IMAGINE MISTER SUZUKI 00:02:47.867 --> 00:02:48.433 KNOWS ABOUT THIS PARTICULAR 00:02:48.433 --> 00:02:52.667 ACCIDENT AND THE DECLARATION IS 00:02:52.667 --> 00:02:53.267 VERY CLEAR, THE DOCUMENT WAS 00:02:53.267 --> 00:02:56.833 SHOWN TO HIM. 00:02:56.833 --> 00:02:57.467 THE DECLARATION DOESN'T SAY THAT 00:02:57.467 --> 00:03:02.500 HE DOESN'T KNOW ANYTHING ABOUT 00:03:02.500 --> 00:03:03.067 THE OVERALL RECALL DECISION. 00:03:03.067 --> 00:03:04.467 THE ISSUE WITH THE PRODUCT HAD 00:03:04.467 --> 00:03:05.067 TO DO WITH MORE THAN JUST ONE 00:03:05.067 --> 00:03:10.733 ACCIDENT. 00:03:10.733 --> 00:03:12.767 WHAT ARE WE TO MAKE OF THAT. 00:03:12.767 --> 00:03:20.700 IT SEEMS THERE'S A DIFFERENCE 00:03:20.700 --> 00:03:21.300 BETWEEN THESE INSURANCE CASES 00:03:21.300 --> 00:03:21.800 FOCUSED ON ONE DISPUTE, 00:03:21.800 --> 00:03:22.433 HIGH-LEVEL OFFICIAL SAYS I HAVE 00:03:22.433 --> 00:03:24.867 NO NOTHING ABOUT THIS COVERAGE 00:03:24.867 --> 00:03:25.100 DISPUTE. 00:03:25.100 --> 00:03:32.200 IT SEEMS LIKE HERE IT WOULD BE 00:03:32.200 --> 00:03:32.833 PLAUSIBLE TO THINK MISTER SUZUKI 00:03:32.833 --> 00:03:33.467 WHETHER HE HAD AUTHORITY TO MAKE 00:03:33.467 --> 00:03:36.100 THE RECALL DECISION IT DOES SEEM 00:03:36.100 --> 00:03:36.600 PLAUSIBLE HE MIGHT HAVE 00:03:36.600 --> 00:03:40.067 INFORMATION THAT COULD LEAD TO 00:03:40.067 --> 00:03:43.667 ADMISSIBLE EVIDENCE AS FAR AS 00:03:43.667 --> 00:03:44.067 OVERALL CORPORATE 00:03:44.067 --> 00:03:46.667 DECISION-MAKING ON THIS ISSUE IN 00:03:46.667 --> 00:03:47.167 A BROADER SENSE AND THE 00:03:47.167 --> 00:03:52.733 DECLARATION PRECLUDES THAT. 00:03:52.733 --> 00:03:53.767 >> WE NEED TO LOOK NOT ONLY AT 00:03:53.767 --> 00:03:59.133 THE DECLARATION, BUT MISTER KUDO 00:03:59.133 --> 00:04:01.933 WHO WAS WITH SUZUKI MOTORS OF 00:04:01.933 --> 00:04:07.133 AMERICA FOLLOWED US OVER THREE 00:04:07.133 --> 00:04:09.333 DAYS AND HE TESTIFIED HIS 00:04:09.333 --> 00:04:16.667 DEPOSITION IS IN THE RECORD. 00:04:16.667 --> 00:04:21.333 THE RELEVANT PARTS, 571, HE 00:04:21.333 --> 00:04:21.967 TESTIFIED THE ONLY ENTITY THAT 00:04:21.967 --> 00:04:29.133 COULD MAKE THE DECISION ON 00:04:29.133 --> 00:04:29.700 RECALL WAS COUNTERMEASURES 00:04:29.700 --> 00:04:33.233 COMMITTEE. 00:04:33.233 --> 00:04:33.867 MISTER SUZUKI HAD NO AUTHORITY 00:04:33.867 --> 00:04:40.967 ON THE COMMITTEE. 00:04:40.967 --> 00:04:41.567 THE CHAIRMAN OF THE COMMITTEE 00:04:41.567 --> 00:04:44.500 MAKES THE DECISION. 00:04:44.500 --> 00:04:57.367 MISTER KUDO INVOLVED IN THE 00:04:57.367 --> 00:04:57.900 INVESTIGATION, THE EXPERT 00:04:57.900 --> 00:05:02.533 AFFIDAVIT ATTACHED DIFFERENT 00:05:02.533 --> 00:05:08.233 EXHIBITS TO THE AFFIDAVIT, 00:05:08.233 --> 00:05:10.167 RESPONSE ETHICS 221, DIFFERENT 00:05:10.167 --> 00:05:18.733 PAGES OF DOCUMENTS. 00:05:18.733 --> 00:05:21.833 HE WAS INTIMATELY INVOLVED, THE 00:05:21.833 --> 00:05:27.900 EXPERT IDENTIFIES KUDO AS HAVING 00:05:27.900 --> 00:05:37.533 COST-BENEFIT ANALYSIS, 358-61, 00:05:37.533 --> 00:05:38.167 PEROTS AND CONS, AS YOU CAN SEE 00:05:38.167 --> 00:05:42.067 FROM THOSE EXHIBITS, IN 00:05:42.067 --> 00:05:47.033 ADDITION, THE PETITION TO THE 00:05:47.033 --> 00:05:53.433 FIRST DCA, THE CORPORATE 00:05:53.433 --> 00:05:59.633 REPRESENTATIVE FOR SUZUKI MOTOR 00:05:59.633 --> 00:06:00.300 CORPORATION, IN JAPAN OVER A 00:06:00.300 --> 00:06:02.767 PERIOD OF THREE DAYS WHO 00:06:02.767 --> 00:06:03.400 COOPERATED WITH WHAT MISTER KUDO 00:06:03.400 --> 00:06:06.100 SAID ABOUT THE AUTHORITY OF THE 00:06:06.100 --> 00:06:11.500 COUNTERMEASURES COMMITTEE ABOUT 00:06:11.500 --> 00:06:12.100 THE LACK OF AUTHORITY OF THE 00:06:12.100 --> 00:06:12.733 CHAIRMAN TO BE INVOLVED IN THE 00:06:12.733 --> 00:06:21.800 RECALL DECISIONS. 00:06:21.800 --> 00:06:27.500 THE KIND OF CHAIRMAN FROM A 00:06:27.500 --> 00:06:28.133 DECISION WHERE THE RECALL SO THE 00:06:28.133 --> 00:06:28.633 COMMITTEE IS COMPLETELY 00:06:28.633 --> 00:06:31.633 INDEPENDENT AND CANDY SIDE ON 00:06:31.633 --> 00:06:32.200 ITS OWN WHETHER TO ISSUE A 00:06:32.200 --> 00:06:34.333 RECALL WITHOUT ANY VETO 00:06:34.333 --> 00:06:41.400 INVOLVEMENT OF THE CHAIRMAN. 00:06:41.400 --> 00:06:41.900 THE DECLARATION, IN HIS 00:06:41.900 --> 00:06:42.533 DECLARATION HE SAYS I WOULD HAVE 00:06:42.533 --> 00:06:45.067 NO AUTHORITY TO OVERRIDE, REJECT 00:06:45.067 --> 00:06:54.233 OR ORDER AND ELECTION A RECALL. 00:06:54.233 --> 00:06:54.867 >> EVERYTHING YOU SAID GOES TO 00:06:54.867 --> 00:06:59.933 THE AUTHORITY TO MAKE THE 00:06:59.933 --> 00:07:00.500 DECISION AS OPPOSED TO 00:07:00.500 --> 00:07:01.100 KNOWLEDGE, HOW TO HANDLE THIS. 00:07:01.100 --> 00:07:03.633 THE QUESTION ABOUT THE STATE OF 00:07:03.633 --> 00:07:07.967 THE REVIEW, THE DEPARTURE FROM 00:07:07.967 --> 00:07:08.600 ESSENTIAL REQUIREMENTS OF LAW, 00:07:08.600 --> 00:07:10.800 YOU SEE IN THE BRIEFS THERE IS 00:07:10.800 --> 00:07:18.500 NO EXISTING BLACK LETTER APEX 00:07:18.500 --> 00:07:19.133 DOCTRINE, IN THE FACE OF THE AND 00:07:19.133 --> 00:07:27.933 CASE LAW, THERE IS NO BLACK 00:07:27.933 --> 00:07:34.967 LETTER WILL, AS IT STOOD AT THE 00:07:34.967 --> 00:07:36.200 TIME -- DOES THAT LEAVE YOU WITH 00:07:36.200 --> 00:07:39.000 ABUSE OF DISCRETION ARGUMENT? 00:07:39.000 --> 00:07:47.200 HOW DO YOU GET TO THE DEPARTURE? 00:07:47.200 --> 00:07:50.033 >> LET ME TELL YOU ABOUT TWO 00:07:50.033 --> 00:07:54.767 CASES FROM THIS COURT, THE FIRST 00:07:54.767 --> 00:07:55.400 IS MARTIN JOHNSON VERSUS SAVAGE 00:07:55.400 --> 00:07:56.033 WHICH I'M SURE YOU ARE FAMILIAR 00:07:56.033 --> 00:08:00.533 WITH WHICH EVEN BACK THEN IN 00:08:00.533 --> 00:08:04.333 1987 SAID THE DISCOVERY ORDERS 00:08:04.333 --> 00:08:04.967 WERE TRADITIONALLY REVIEWED SO 00:08:04.967 --> 00:08:12.700 EVEN 33 YEARS AGO THIS COURT 00:08:12.700 --> 00:08:13.333 CONSIDERED IT A TRADITION THAT 00:08:13.333 --> 00:08:13.967 DISCOVERY ORDERS WERE REVIEWED 00:08:13.967 --> 00:08:16.367 AND SECOND, 1995 ALLSTATE VERSUS 00:08:16.367 --> 00:08:18.767 LANGSTON QUASHED THE DISTRICT 00:08:18.767 --> 00:08:21.933 COURT ORDER. 00:08:21.933 --> 00:08:26.200 I WANT -- QUASHED THE DISTRICT 00:08:26.200 --> 00:08:31.233 COURT'S OPINION TO THE EXTENT OF 00:08:31.233 --> 00:08:35.933 THE DISCOVERY, ALTERNATIVELY 00:08:35.933 --> 00:08:36.400 ESTABLISHED THAT SUCH 00:08:36.400 --> 00:08:36.967 DISCOVERIES, WITH RELEVANT 00:08:36.967 --> 00:08:42.533 INFORMATION. 00:08:42.533 --> 00:08:43.100 SUBSEQUENTLY OTHER DISTRICT 00:08:43.100 --> 00:08:52.100 COURTS OF APPEAL TAKING OUT THAT 00:08:52.100 --> 00:08:57.400 LANGUAGE, AND NO CASE ON POINT 00:08:57.400 --> 00:09:01.433 WITH RULES OF PROCEDURE WHICH 00:09:01.433 --> 00:09:03.300 ARE ESTABLISHED LAW, NOT JUST 00:09:03.300 --> 00:09:08.600 CASE ON POINT. 00:09:08.600 --> 00:09:09.233 IT COULD BE A RULE ON POINT AND 00:09:09.233 --> 00:09:15.400 DISTRICT COURTS HAVE REVERSED 00:09:15.400 --> 00:09:15.967 DISCOVERY ORDERS WHERE THE 00:09:15.967 --> 00:09:18.967 DISCOVERY WAS NOT LIKELY TO LEAD 00:09:18.967 --> 00:09:28.567 TO THE DISCOVERY, WHEN THAT 00:09:28.567 --> 00:09:29.167 HAPPENS, THE REQUIREMENTS OF 00:09:29.167 --> 00:09:36.067 LAW. 00:09:36.067 --> 00:09:36.633 >> UNDER THE CIRCUMSTANCES, 00:09:36.633 --> 00:09:37.267 SEEMS SO UNLIKELY WE ARE CLEARLY 00:09:37.267 --> 00:09:42.567 SHOWING THE DEPOSITION OR 00:09:42.567 --> 00:09:43.167 WHATEVER THE DISCOVERY WOULD 00:09:43.167 --> 00:09:43.800 LEAD TO ADMISSIBLE EVIDENCE THAT 00:09:43.800 --> 00:09:46.100 IT IS AN ABUSE OF DISCRETION NOT 00:09:46.100 --> 00:09:46.700 TO ENTER THE PROTECTIVE ORDER. 00:09:46.700 --> 00:09:47.333 IS THAT WHAT THE COURT WOULD BE 00:09:47.333 --> 00:09:50.633 CONCLUDING? 00:09:50.633 --> 00:09:52.733 >> THE DEPARTURE FROM THE 00:09:52.733 --> 00:09:56.033 REQUIREMENTS OF LAW. 00:09:56.033 --> 00:09:56.567 AND DISCOVERY CONTEXT THE 00:09:56.567 --> 00:09:57.100 ABUSIVE DISCUSSION WAS A 00:09:57.100 --> 00:10:00.600 DEPARTURE. 00:10:00.600 --> 00:10:06.167 THERE HAVE BEEN CASES IN THIS 00:10:06.167 --> 00:10:06.400 CONTEXT. 00:10:06.400 --> 00:10:12.200 WE CITED GENERAL STAR VERSUS 00:10:12.200 --> 00:10:12.833 HOSPITALITY FROM THE THIRD DCA 00:10:12.833 --> 00:10:13.367 WHICH ALSO QUASHED IN THE 00:10:13.367 --> 00:10:18.700 CORPORATE CONTEXT, YOU REFERRED 00:10:18.700 --> 00:10:24.333 TO IT, AND NO KNOWLEDGE OF THE 00:10:24.333 --> 00:10:29.733 CASE, QUASHED THAT ORDER BECAUSE 00:10:29.733 --> 00:10:30.367 IT WAS NOT LIKELY TO LEAD TO THE 00:10:30.367 --> 00:10:32.133 DISCOVERY OF ADMISSIBLE EVIDENCE 00:10:32.133 --> 00:10:36.233 AND DID SO WITHOUT THE DOCTRINE 00:10:36.233 --> 00:10:40.233 THAT SAYS, IN THIS CASE, APPLIED 00:10:40.233 --> 00:10:40.500 THE RULE. 00:10:40.500 --> 00:10:45.300 >> IN TERMS OF WHAT IS AT ISSUE 00:10:45.300 --> 00:10:51.000 SUBSTANTIVELY IN THIS LAWSUIT, 00:10:51.000 --> 00:10:51.633 ISN'T ONE OF THE CLAIMS GOING TO 00:10:51.633 --> 00:10:54.333 WHAT THE CORPORATION NEW ABOUT 00:10:54.333 --> 00:10:55.300 ALLEGED DEFECT IN THE DECISION 00:10:55.300 --> 00:11:07.033 TO RECALL AND THE RELATED 00:11:07.033 --> 00:11:07.633 DECISION, ISN'T IT PLAUSIBLE 00:11:07.633 --> 00:11:08.267 MISTER SUZUKI WOULD KNOW ABOUT 00:11:08.267 --> 00:11:08.600 THESE CLAIMS? 00:11:08.600 --> 00:11:09.233 HE DOESN'T DISCLAIM KNOWLEDGE IN 00:11:09.233 --> 00:11:11.900 THE DECLARATION? 00:11:11.900 --> 00:11:12.533 >> THE PRESIDENT OF THE COMPANY 00:11:12.533 --> 00:11:16.700 COULD TESTIFY ABOUT THE 00:11:16.700 --> 00:11:17.333 COMPANY'S KNOWLEDGE EVERY TIME 00:11:17.333 --> 00:11:19.500 THERE WAS A CASE, AND THE 00:11:19.500 --> 00:11:20.100 PRESIDENT OF THE CORPORATION 00:11:20.100 --> 00:11:27.167 BEING DEPOSED. 00:11:27.167 --> 00:11:27.733 >> AS A POLICY MATTER I AM 00:11:27.733 --> 00:11:28.300 SYMPATHETIC TO WHAT YOU ARE 00:11:28.300 --> 00:11:30.867 SAYING BUT FOR BETTER OR WORSE, 00:11:30.867 --> 00:11:35.667 IT SEEMS THERE WERE TWO PATHS 00:11:35.667 --> 00:11:36.000 THAT YOU HAVE. 00:11:36.000 --> 00:11:41.867 ONE WOULD BE IN ADDITION TO THE 00:11:41.867 --> 00:11:42.500 NORMAL RULES OF DISCOVERY IN THE 00:11:42.500 --> 00:11:43.100 FORM OF AN APEX DOCTRINE THAT 00:11:43.100 --> 00:11:44.600 WOULD SAY NOTWITHSTANDING THE 00:11:44.600 --> 00:11:45.167 FACT THAT IF WE LOOK AT THE 00:11:45.167 --> 00:11:49.567 ABSTRACT OF WHAT YOU ARE ALLOWED 00:11:49.567 --> 00:11:50.200 TO DISCOVER YOU COULD GO TO THE 00:11:50.200 --> 00:11:53.967 CEO AND SAY AS A MATTER OF LAW 00:11:53.967 --> 00:11:54.600 THAT ESSENTIALLY THE TRIAL COURT 00:11:54.600 --> 00:11:58.233 DISCRETION HAS TO REQUIRE 00:11:58.233 --> 00:11:58.867 PARTIES TO START SOMEWHERE ELSE 00:11:58.867 --> 00:12:00.667 FIRST BUT IF WE DON'T HAVE THAT 00:12:00.667 --> 00:12:08.200 YET, AND STUCK WITH THE BASICS 00:12:08.200 --> 00:12:08.767 OF DISCOVERY, IF THERE ARE 00:12:08.767 --> 00:12:09.300 BETTER PLACES TO GET THE 00:12:09.300 --> 00:12:11.533 INFORMATION DOESN'T SEEM THE 00:12:11.533 --> 00:12:17.233 POOLS REQUIRE YOU TO GO TO THE 00:12:17.233 --> 00:12:17.867 BEST SOURCE OF INFORMATION, OR 00:12:17.867 --> 00:12:18.500 FAILURE TO REQUIRED TO DO SO IS 00:12:18.500 --> 00:12:19.000 NECESSARILY AN ABUSE OF 00:12:19.000 --> 00:12:23.833 DISCRETION. 00:12:23.833 --> 00:12:24.267 IS THAT NOT A FAIR 00:12:24.267 --> 00:12:24.867 CHARACTERIZATION OF WHERE WE 00:12:24.867 --> 00:12:25.033 ARE? 00:12:25.033 --> 00:12:29.433 >> I DON'T THINK SO. 00:12:29.433 --> 00:12:30.000 IN THAT EVENT, IN FLORIDA A 00:12:30.000 --> 00:12:33.100 MULTINATIONAL CORPORATION'S 00:12:33.100 --> 00:12:35.900 PRESIDENT AND CEO, CHIEF 00:12:35.900 --> 00:12:39.533 OPERATING OFFICER WOULD BE 00:12:39.533 --> 00:12:40.133 DEPOSED IN EVERY CASE BECAUSE 00:12:40.133 --> 00:12:43.767 HARD TO BELIEVE THEY WILL NOT 00:12:43.767 --> 00:12:44.300 RECEIVE DOCUMENTS AND BE 00:12:44.300 --> 00:12:49.567 INFORMED OF THINGS GOING ON IN 00:12:49.567 --> 00:12:50.133 THE COMPANY WITHOUT GETTING 00:12:50.133 --> 00:12:52.000 INVOLVED IN WHAT IS GOING ON 00:12:52.000 --> 00:12:52.633 WITHOUT HAVING DECISION-MAKING 00:12:52.633 --> 00:13:00.567 AUTHORITY, THEY JUST NEED TO BE 00:13:00.567 --> 00:13:01.200 INFORMED ABOUT WHAT IS GOING ON 00:13:01.200 --> 00:13:01.833 AND DOESN'T EVEN A SERRATED ANY 00:13:01.833 --> 00:13:04.300 PROTECTION HIGH-LEVEL OFFICIALS 00:13:04.300 --> 00:13:04.867 WOULD HAVE OVER DEPOSITIONS 00:13:04.867 --> 00:13:05.433 WHICH WOULD MEAN YOU WOULD 00:13:05.433 --> 00:13:07.000 ALWAYS FIND A REASON WHY A 00:13:07.000 --> 00:13:08.233 PRESIDENT MAY HAVE TO BE 00:13:08.233 --> 00:13:13.967 DEPOSED. 00:13:13.967 --> 00:13:16.767 IT WOULD HAVE BEEN DEPOSED IN 00:13:16.767 --> 00:13:25.267 THAT CASE. 00:13:25.267 --> 00:13:25.733 WE IDENTIFIED 699-702. 00:13:25.733 --> 00:13:28.667 THERE WERE 24 DIFFERENT MEMBERS 00:13:28.667 --> 00:13:34.167 OF QUALITY COUNTERMEASURE 00:13:34.167 --> 00:13:34.800 COMMITTEE OVER THE 10-YEAR THAT 00:13:34.800 --> 00:13:39.600 IS RELEVANT IN THE CASE, ROUGHLY 00:13:39.600 --> 00:13:40.000 2012 THROUGH 2013. 00:13:40.000 --> 00:13:40.600 17 MEMBERS AT ANY GIVEN TIME, 00:13:40.600 --> 00:13:41.800 THEY NEVER STOPPED TO EXAMINE 00:13:41.800 --> 00:13:44.700 ANY OF THE MEMBERS OF THAT 00:13:44.700 --> 00:13:47.833 COMMITTEE. 00:13:47.833 --> 00:13:52.833 PEOPLE IDENTIFIED IN THE EMAIL. 00:13:52.833 --> 00:13:56.167 >> SORRY TO INTERRUPT. 00:13:56.167 --> 00:13:58.067 ONE QUESTION I HAVE IF WE WERE 00:13:58.067 --> 00:14:04.567 TO AGREE WITH THE IDEA IT IS AN 00:14:04.567 --> 00:14:07.500 ABUSE OF DISCRETION TO NOT HAVE 00:14:07.500 --> 00:14:12.167 THE APEX DOCTRINE IN PLACE, HOW 00:14:12.167 --> 00:14:12.800 BROADLY IS IT THAT WE SHOULD BE 00:14:12.800 --> 00:14:16.333 ADOPTING THE RULE, THE SINGULAR 00:14:16.333 --> 00:14:18.767 CEO OF THE GLOBAL ENTERPRISE OR 00:14:18.767 --> 00:14:19.367 17 MEMBERS ON THE COMMITTEE, 00:14:19.367 --> 00:14:26.400 WOULD ANY OF THEM BE COVERED BY 00:14:26.400 --> 00:14:26.933 THE APEX DOCTRINE IN YOUR 00:14:26.933 --> 00:14:27.233 ESTIMATION? 00:14:27.233 --> 00:14:29.700 >> THEY WOULD NOT. 00:14:29.700 --> 00:14:30.333 THE APEX DOCTRINE TRADITIONALLY 00:14:30.333 --> 00:14:33.467 HAS BEEN APPLIED TO OFFICERS AND 00:14:33.467 --> 00:14:42.767 DIRECTORS OF THE COMPANY. 00:14:42.767 --> 00:14:46.267 COO, CEO, CTO, THE GENERAL 00:14:46.267 --> 00:14:50.200 COUNSEL, MEMBERS OF THE BOARD OF 00:14:50.200 --> 00:14:54.833 DIRECTORS, HAVEN'T SEEN IT 00:14:54.833 --> 00:14:55.433 APPLIED TO ANYBODY OTHER THAN 00:14:55.433 --> 00:14:59.867 THAT AND BELOW THAT, LIKELY THEY 00:14:59.867 --> 00:15:00.533 WOULD HAVE KNOWLEDGE AND BEEN 00:15:00.533 --> 00:15:01.400 DIRECTLY INVOLVED SO THE 00:15:01.400 --> 00:15:02.767 LIKELIHOOD WHICH MUST GREATER. 00:15:02.767 --> 00:15:10.367 THE WAY THE COURT CAN ADOPT IT 00:15:10.367 --> 00:15:13.767 IN THE ATLANTIC HOSPITALITY 00:15:13.767 --> 00:15:18.400 CASE, THE PROPOSED OPPONENT OR 00:15:18.400 --> 00:15:18.933 THE PARTY CONTESTING THE 00:15:18.933 --> 00:15:20.067 DEPOSITION MUST FIRST COME 00:15:20.067 --> 00:15:25.133 FORWARD WITH POSITIVE EVIDENCE 00:15:25.133 --> 00:15:31.367 THIS OFFICIAL DOESN'T HAVE 00:15:31.367 --> 00:15:32.000 KNOWLEDGE, PARTIES SEEKING THAT 00:15:32.000 --> 00:15:32.567 WOULD SHOW THIS PERSON HAS 00:15:32.567 --> 00:15:38.767 UNIQUE KNOWLEDGE NOBODY ELSE HAS 00:15:38.767 --> 00:15:39.400 THAT IS NECESSARY TO PROSECUTE 00:15:39.400 --> 00:15:39.700 THE LAWSUIT. 00:15:39.700 --> 00:15:44.900 >> THE ARGUMENT YOU ARE MAKING 00:15:44.900 --> 00:15:45.500 AS FAR AS PRACTICALITY, I AM 00:15:45.500 --> 00:15:50.167 SYMPATHETIC TO IT BUT EVEN IF 00:15:50.167 --> 00:15:50.767 MISTER SUZUKI REMEMBERED THE 00:15:50.767 --> 00:15:51.367 MEMO THERE WOULD BE 500 OTHER 00:15:51.367 --> 00:15:52.033 PEOPLE AT THE COMPANY WHO WOULD 00:15:52.033 --> 00:15:56.333 KNOW A LOT MORE AND AS A MATTER 00:15:56.333 --> 00:16:01.333 OF POLICY WOULD WANT THE 00:16:01.333 --> 00:16:01.933 INFORMATION SEEKER TO DEPOSE 00:16:01.933 --> 00:16:02.133 FIRST. 00:16:02.133 --> 00:16:06.967 WHAT YOU ARE ASKING US TO DO, IT 00:16:06.967 --> 00:16:11.000 SEEMS THE HARDER IT IS TO DEFINE 00:16:11.000 --> 00:16:16.800 WHAT THE APEX DOCTRINE IS THIS 00:16:16.800 --> 00:16:17.267 WOULD BE AN EASY CASE. 00:16:17.267 --> 00:16:21.200 HE'S THE CEO BUT IT SEEMS THE 00:16:21.200 --> 00:16:21.767 MORE VAGUE THE RULE IS, THE 00:16:21.767 --> 00:16:23.833 LARGER IT IS TO SAY IT IS A 00:16:23.833 --> 00:16:27.733 FIRST-DAY ABUSE OF DISCRETION TO 00:16:27.733 --> 00:16:28.333 FOLLOW A WOOL THAT ONE CANNOT 00:16:28.333 --> 00:16:36.400 CLEARLY DEFINE. 00:16:36.400 --> 00:16:43.467 >> WHAT THEY CITED, THEY DO NOT 00:16:43.467 --> 00:16:44.100 ADOPT THE APEX DOCTRINE PER SE, 00:16:44.100 --> 00:16:44.633 THEY STILL REVERSE ORDERS 00:16:44.633 --> 00:16:45.267 REQUIRING THE DEPOSITION OF THE 00:16:45.267 --> 00:16:50.667 APEX OFFICIAL UNDER THE 00:16:50.667 --> 00:16:51.300 CIRCUMSTANCES OF THAT CASE, THAT 00:16:51.300 --> 00:16:51.933 IS WHAT THE THIRD DCA DID, WHAT 00:16:51.933 --> 00:16:53.000 THE FIRST DCA DID IN THE 00:16:53.000 --> 00:16:58.667 HAMBURGER CASE WITH THE 00:16:58.667 --> 00:17:02.067 UNIVERSITY PRESIDENT, AND AS I 00:17:02.067 --> 00:17:02.600 SAID, DON'T HAVE THE APEX 00:17:02.600 --> 00:17:06.867 DOCTRINE. 00:17:06.867 --> 00:17:08.600 IN THIS CASE, THE EXAMINATION 00:17:08.600 --> 00:17:11.633 WAS NOT LIKELY TO LEAD TO THE 00:17:11.633 --> 00:17:12.133 DISCOVERY OF ADMISSIBLE 00:17:12.133 --> 00:17:15.600 EVIDENCE. 00:17:15.600 --> 00:17:20.833 I RESERVE THE REST OF MY TIME. 00:17:20.833 --> 00:17:21.167 >> THANK YOU. 00:17:21.167 --> 00:17:23.700 COUNSEL? 00:17:23.700 --> 00:17:32.733 >> MAY IT PLEASE THE COURT, SHEA 00:17:32.733 --> 00:17:33.333 MOXON FOR MATTHEW CONIGLIARO. 00:17:33.333 --> 00:17:37.767 I CAME TO TALK ABOUT 00:17:37.767 --> 00:17:39.267 JURISDICTION, APEX DOCTRINE, 00:17:39.267 --> 00:17:44.133 SKIPS RIGHT OVER ALL THAT. 00:17:44.133 --> 00:17:44.767 IT GOES STRAIGHT TO ASKING THIS 00:17:44.767 --> 00:17:51.367 COURT TO DIRECTLY REVIEW THE 00:17:51.367 --> 00:17:51.933 TRIAL JUDGE'S DISCRETIONARY 00:17:51.933 --> 00:17:52.533 DECISION ON DISCOVERY RULING 00:17:52.533 --> 00:17:58.367 WHERE HE WEIGHED THE EVIDENCE 00:17:58.367 --> 00:18:00.500 PRESENTED TO HIM. 00:18:00.500 --> 00:18:06.167 HE MADE A FACTUAL DETERMINATION 00:18:06.167 --> 00:18:07.400 THIS EXAMINATION WOULD LEAD TO 00:18:07.400 --> 00:18:10.600 RELEVANT EVIDENCE. 00:18:10.600 --> 00:18:18.167 THEY WERE ABLE TO PROVIDE 00:18:18.167 --> 00:18:18.633 RELEVANT INFORMATION. 00:18:18.633 --> 00:18:24.167 >> WHAT WOULD BE THE BASIS TO 00:18:24.167 --> 00:18:24.800 SAY HE WAS UNIQUELY -- EVERYONE 00:18:24.800 --> 00:18:25.433 WHO IS UNIQUE INFORMATION THAT 00:18:25.433 --> 00:18:26.933 THEY HAVE THEIR OWN PERSONAL 00:18:26.933 --> 00:18:28.700 PERSPECTIVE BUT IT SEEMS THERE 00:18:28.700 --> 00:18:35.867 IS ENOUGH IN THE RECORD TO 00:18:35.867 --> 00:18:39.000 ASSUME HE ONLY WOULD HAVE THE 00:18:39.000 --> 00:18:39.633 SAME OBSERVATIONAL INFORMATION 00:18:39.633 --> 00:18:40.267 THAN OTHERS ON THE COMPANY WOULD 00:18:40.267 --> 00:18:47.200 HAVE. 00:18:47.200 --> 00:18:49.600 >> THIS WAS A DECISION 00:18:49.600 --> 00:18:52.267 CONCERNING WHETHER TO INITIATE A 00:18:52.267 --> 00:18:52.900 RECALL AT THE HIGHEST LEVEL OF 00:18:52.900 --> 00:19:01.033 THE COMPANY. 00:19:01.033 --> 00:19:05.200 WITH EMAIL AND MEMO SHOWED, 00:19:05.200 --> 00:19:08.300 CONCLUDED THAT MISTER SUZUKI WAS 00:19:08.300 --> 00:19:16.133 INVOLVED TO INITIATE THE RECALL. 00:19:16.133 --> 00:19:18.633 THE DECISIONS THAT WERE DECIDED, 00:19:18.633 --> 00:19:22.267 BRIDGESTONE FIRESTONE, TRAVELERS 00:19:22.267 --> 00:19:24.933 BEFORE, SOME VERSION OF THE APEX 00:19:24.933 --> 00:19:29.233 DOCTRINE, ISSUES OF KNOWLEDGE OR 00:19:29.233 --> 00:19:29.867 MOTIVES AT THE HIGHEST LEVELS OF 00:19:29.867 --> 00:19:36.100 THE COMPANY IS WHEN IT BECOMES 00:19:36.100 --> 00:19:36.667 APPROPRIATE TO EXAMINE TOP 00:19:36.667 --> 00:19:37.267 OFFICIALS WHO HAVE KNOWLEDGE 00:19:37.267 --> 00:19:43.067 ABOUT THOSE MATTERS. 00:19:43.067 --> 00:19:43.667 >> TRYING TO GET INFORMATION 00:19:43.667 --> 00:19:46.133 FROM ALL THESE PEOPLE ON THIS 00:19:46.133 --> 00:19:50.067 COMMITTEE WHO WOULD HAVE A LOT 00:19:50.067 --> 00:19:55.200 MORE USEFUL 00:19:55.200 --> 00:19:55.633 WHY WOULDN'T THIS BE 00:19:55.633 --> 00:19:56.267 SORT OF THE CLASSIC CAUSE WHERE 00:19:56.267 --> 00:19:57.567 YOU COULD INFER FROM YOUR 00:19:57.567 --> 00:19:59.567 FAILURE TO DO THAT, THAT REALLY 00:19:59.567 --> 00:20:02.867 THE ONLY REASON YOU'RE SO 00:20:02.867 --> 00:20:04.067 RELENTLESSLY PURSUING THIS IS, 00:20:04.067 --> 00:20:07.233 YOU KNOW, TO HARASS THIS 00:20:07.233 --> 00:20:09.200 POTENTIAL DEPONENT? 00:20:09.200 --> 00:20:11.367 >> WELL, YOUR HONOR, THAT WHOLE 00:20:11.367 --> 00:20:13.233 ISSUE OF WHETHER WE SHOULD HAVE 00:20:13.233 --> 00:20:15.700 OR WHY WE DIDN'T TRY TO DEPOSE 00:20:15.700 --> 00:20:17.033 MEMBERS OF THE COMMITTEE, THAT 00:20:17.033 --> 00:20:18.700 WAS NEVER DEVELOPED OUT OF THE 00:20:18.700 --> 00:20:18.933 RECORD. 00:20:18.933 --> 00:20:20.633 SO I'M AT A BIT OF A 00:20:20.633 --> 00:20:21.900 DISADVANTAGE TO DISCUSSING THAT 00:20:21.900 --> 00:20:23.400 WITHOUT GOING OUTSIDE THE RECORD 00:20:23.400 --> 00:20:24.267 A LITTLE BIT. 00:20:24.267 --> 00:20:25.600 AS A MATTER OF FACT, THE CLAIM 00:20:25.600 --> 00:20:27.867 THAT WE DIDN'T TRY TO DEPOSE 00:20:27.867 --> 00:20:29.967 HIM, EVEN THAT'S NOT FULLY 00:20:29.967 --> 00:20:31.300 DEVELOPED ON THE RECORD. 00:20:31.300 --> 00:20:33.367 ONE INTERESTING FACT THAT I 00:20:33.367 --> 00:20:37.267 DISCOVERED PREPARING FOR THIS IS 00:20:37.267 --> 00:20:43.000 THAT MR. KUDO, WHOSE DEPOSITION 00:20:43.000 --> 00:20:44.633 MR. CANTERO WAS JUST DISCUSSING, 00:20:44.633 --> 00:20:48.133 IN HIS DEPOSITION WHICH WAS 00:20:48.133 --> 00:20:49.733 TAKEN -- THE THIRD VOLUME WHICH 00:20:49.733 --> 00:20:51.600 WAS TAKEN JUST A MONTH BEFORE WE 00:20:51.600 --> 00:20:53.133 INITIATED THE PROCESS, HE WAS 00:20:53.133 --> 00:20:55.000 ASKED WHEN DID THE QUALITY 00:20:55.000 --> 00:20:56.100 COUNTERMEASURE COMMITTEE, WHEN 00:20:56.100 --> 00:20:57.833 DID THEY FIRST BECOME INFORMED 00:20:57.833 --> 00:20:58.467 OF THIS. 00:20:58.467 --> 00:21:03.467 AND HIS ANSWER WAS OCTOBER 11, 00:21:03.467 --> 00:21:03.667 2013. 00:21:03.667 --> 00:21:04.900 THAT WAS THE FIRST TIME THAT 00:21:04.900 --> 00:21:06.667 COMMITTEE KNEW ABOUT IT. 00:21:06.667 --> 00:21:09.700 AND SO, AND THAT, AND THAT'S 00:21:09.700 --> 00:21:10.967 JUST BY WAY TO SHOW THAT THERE'S 00:21:10.967 --> 00:21:13.833 A LOT OF CONFUSION ABOUT WHO WE 00:21:13.833 --> 00:21:16.433 EVEN WOULD HAVE KNOWN WHO TO 00:21:16.433 --> 00:21:16.667 DEPOSE. 00:21:16.667 --> 00:21:19.233 SO AT THAT POINT, THIS IS JUST 00:21:19.233 --> 00:21:21.033 ABOUT FIVE MONTHS BEFORE TRIAL 00:21:21.033 --> 00:21:22.800 JUDGE ENTERS HIS ORDER. 00:21:22.800 --> 00:21:26.300 WE'RE BEING TOLD BY MR. KUDO 00:21:26.300 --> 00:21:27.633 THAT THIS COMMITTEE DIDN'T EVEN 00:21:27.633 --> 00:21:29.367 KNOW ABOUT THIS BRAKE PROBLEM AT 00:21:29.367 --> 00:21:30.467 THE TIME. 00:21:30.467 --> 00:21:32.100 SO THAT'S JUST ONE FACT IN THE 00:21:32.100 --> 00:21:33.867 WHOLE PICTURE OF IT. 00:21:33.867 --> 00:21:35.867 MY UNDERSTANDING IS THAT THERE 00:21:35.867 --> 00:21:37.833 ARE DISCUSSIONS BETWEEN COUNSEL 00:21:37.833 --> 00:21:40.067 BEHIND THE SCENES, AND WE WERE 00:21:40.067 --> 00:21:42.833 LED TO BELIEVE THAT SUZUKI WAS 00:21:42.833 --> 00:21:45.367 NOT GOING TO CONSENT TO ANY 00:21:45.367 --> 00:21:46.467 DEPOSITION TAKEN THROUGH THE 00:21:46.467 --> 00:21:48.933 NORMAL PROCESS AT THE EMBASSY 00:21:48.933 --> 00:21:50.333 UNLESS IT WAS A CORPORATE 00:21:50.333 --> 00:21:53.433 RESPECTIVE DEPOSITION -- 00:21:53.433 --> 00:21:54.333 REPRESENTATIVE DEPOSITION. 00:21:54.333 --> 00:21:56.400 TIE THAT ALL IN WITH THE FACT 00:21:56.400 --> 00:21:57.867 THAT ANY DEPOSITION TAKEN IN 00:21:57.867 --> 00:22:00.333 JAPAN TAKES MONTHS TO SET UP, 00:22:00.333 --> 00:22:02.033 COSTS MANY THOUSANDS OF DOLLARS. 00:22:02.033 --> 00:22:04.033 IT COULD RUN ARE UP TO ABOUT 00:22:04.033 --> 00:22:05.633 $10,000 PER DEPOSITION. 00:22:05.633 --> 00:22:07.433 YOU KNOW, ALL THE BURDENS ARE 00:22:07.433 --> 00:22:10.267 DISCUSSED IN THE TWO CASES I 00:22:10.267 --> 00:22:13.100 CITED, C.J. RENFRO E -- J.C. 00:22:13.100 --> 00:22:16.500 RENFRO E AND SONS AND THE SHAWL 00:22:16.500 --> 00:22:18.067 ORDER FROM NOVEMBER 17TH -- 00:22:18.067 --> 00:22:21.100 EXCUSE ME, NOVEMBER OF 2017. 00:22:21.100 --> 00:22:23.267 ALL JUST TO SAY THAT, YOU KNOW, 00:22:23.267 --> 00:22:26.567 THERE'S A VERY COMPLEX FACTUAL 00:22:26.567 --> 00:22:28.700 AND PROCEDURAL BACKGROUND TO 00:22:28.700 --> 00:22:29.167 THIS. 00:22:29.167 --> 00:22:31.033 SO ONE OF THE REASONS I'VE ASKED 00:22:31.033 --> 00:22:33.133 THE COURT TO DISCHARGE 00:22:33.133 --> 00:22:34.267 JURISDICTION IS BECAUSE THIS IS 00:22:34.267 --> 00:22:36.333 SUCH AN UNUSUAL CASE WHERE WE 00:22:36.333 --> 00:22:39.567 DON'T HAVE NORMAL DEPOSITION 00:22:39.567 --> 00:22:40.667 PROCEDURES WHERE ANYONE CAN JUST 00:22:40.667 --> 00:22:42.300 WITH ISSUE A NOTICE AND THEN THE 00:22:42.300 --> 00:22:44.267 CEO WITH EITHER HAS TO SIT FOR 00:22:44.267 --> 00:22:45.767 DEPOSITION OR THERE'S A 00:22:45.767 --> 00:22:46.267 PROTECTIVE ORDER. 00:22:46.267 --> 00:22:47.900 AND THEN, YOU KNOW, THE TRIAL 00:22:47.900 --> 00:22:51.300 JUDGE CAN SAW, WELL -- SAY, 00:22:51.300 --> 00:22:53.067 WELL, WHY DON'T YOU JUST DEPOSE 00:22:53.067 --> 00:22:54.600 SOME OF THESE OTHER PEOPLE 00:22:54.600 --> 00:22:56.333 FIRST, AND YOU SAY, OKAY, I'LL 00:22:56.333 --> 00:22:57.633 JUST DO THAT. 00:22:57.633 --> 00:23:00.367 THAT'S PLOTLY IMPRACTICAL HERE 00:23:00.367 --> 00:23:02.200 WHERE EVERY DEPOSITION HAS TO GO 00:23:02.200 --> 00:23:03.667 THROUGH AN INTERROGATORY THE, 00:23:03.667 --> 00:23:05.633 THERE'S GOING TO BE FIGHTS OVER 00:23:05.633 --> 00:23:06.567 THE TRANSLATION. 00:23:06.567 --> 00:23:09.033 THAT'S GOING ON NOW AS SUZUKI 00:23:09.033 --> 00:23:11.133 POINTED OUT IN THE REPLY BRIEF. 00:23:11.133 --> 00:23:12.467 THINGS HAVE TO BE THE SHE SET UP 00:23:12.467 --> 00:23:14.233 MONTHS IN ADVANCE. 00:23:14.233 --> 00:23:16.133 AND IF WE HAD A WHOLE HEARING 00:23:16.133 --> 00:23:17.300 WHERE WE COULD HAVE DEVELOPED, 00:23:17.300 --> 00:23:19.400 YOU KNOW, AN ANSWER TO THIS 00:23:19.400 --> 00:23:21.133 QUESTION, WELL, WHY HAVEN'T YOU 00:23:21.133 --> 00:23:25.067 DONE SOME QUALITY CONTROL 00:23:25.067 --> 00:23:26.100 COUNTERMEASURE COMMITTEE IN THE 00:23:26.100 --> 00:23:27.333 RECORD ABOUT THAT. 00:23:27.333 --> 00:23:29.333 BUT, YOU KNOW, I'M ASKING THE 00:23:29.333 --> 00:23:30.867 COURT TO STEP BACK AND LOOK, 00:23:30.867 --> 00:23:32.833 WHAT IS ITS ROLE HERE. 00:23:32.833 --> 00:23:35.167 THIS IS WHERE I STARTED OUT 00:23:35.167 --> 00:23:36.700 WITH. 00:23:36.700 --> 00:23:38.600 SUZUKI IS ASKING THIS COURT TO 00:23:38.600 --> 00:23:44.267 STEP IN AND DIRECTLY REVIEW THE 00:23:44.267 --> 00:23:46.200 JUDGE'S FINDING IRRELEVANCE 00:23:46.200 --> 00:23:47.933 BASED ON THE FACTUAL BACKGROUND 00:23:47.933 --> 00:23:51.200 OF THIS CASE AND THE 00:23:51.200 --> 00:23:52.467 INFORMATION, EVIDENCE HE WAS 00:23:52.467 --> 00:23:53.200 PRESENTED WITH. 00:23:53.200 --> 00:23:55.133 THE JUDGE, YOU KNOW, HE REACHES 00:23:55.133 --> 00:23:57.033 THE CONCLUSION THAT THERE'S 00:23:57.033 --> 00:23:57.900 RELEVANT MATERIAL INFORMATION TO 00:23:57.900 --> 00:24:00.667 BE HAD HERE, AND SUZUKI 00:24:00.667 --> 00:24:02.133 DISAGREES WITH IT BECAUSE THEY 00:24:02.133 --> 00:24:04.333 THINK OTHER EVIDENCE POINTS IN 00:24:04.333 --> 00:24:05.267 THE OTHER DIRECTION. 00:24:05.267 --> 00:24:07.033 THAT, RESPECTFULLY, IS NOT WHAT 00:24:07.033 --> 00:24:09.467 THIS COURT IS HERE FOR. 00:24:09.467 --> 00:24:11.733 THAT REVIEW WAS ALREADY HELD BY 00:24:11.733 --> 00:24:15.300 THE FIRST DISTRICT WHEN THEY 00:24:15.300 --> 00:24:17.500 CONSIDERED SUZUKI'S PETITION 00:24:17.500 --> 00:24:18.667 FORKER IS SHORE TRUE AND 00:24:18.667 --> 00:24:21.867 CONCLUDED THAT THERE'S NO 00:24:21.867 --> 00:24:22.967 DEPARTURE FROM THE CENTRAL 00:24:22.967 --> 00:24:23.567 REQUIREMENTS OF THE LAW. 00:24:23.567 --> 00:24:25.333 >> WELL, BUT THEY'RE ALSO ASKING 00:24:25.333 --> 00:24:27.667 US TO TRY TO LEND SOME COHERENCE 00:24:27.667 --> 00:24:30.100 TO FLORIDA LAW OVERALL WHICH IS 00:24:30.100 --> 00:24:31.233 OUR ROLE. 00:24:31.233 --> 00:24:32.733 AND WHY SHOULD, YOU KNOW, THE 00:24:32.733 --> 00:24:34.967 HEAD OF DVPR HAVE MORE 00:24:34.967 --> 00:24:36.133 PROTECTION FROM A POTENTIALLY, 00:24:36.133 --> 00:24:38.300 YOU KNOW, HARASSING DEPOSITION 00:24:38.300 --> 00:24:40.433 REQUEST THAN, YOU KNOW, THE CEO 00:24:40.433 --> 00:24:42.000 OF A COMPANY LIKE THIS? 00:24:42.000 --> 00:24:44.900 I MEAN, IT DOESN'T -- IT DOES 00:24:44.900 --> 00:24:47.133 SEEM, SO COULD YOU ADDRESS THAT 00:24:47.133 --> 00:24:47.567 THAT? 00:24:47.567 --> 00:24:49.267 SO, OBVIOUSLY, THE CASES HAVE 00:24:49.267 --> 00:24:50.600 TALKED ABOUT GOVERNMENT AGENCY 00:24:50.600 --> 00:24:50.833 HEADS. 00:24:50.833 --> 00:24:53.700 BUT IN TERMS OF THE UNDERLYING 00:24:53.700 --> 00:24:55.600 PRINCIPLES THAT LED TO THAT, TO 00:24:55.600 --> 00:24:57.367 THE DEVELOPMENT OF THAT 00:24:57.367 --> 00:24:58.833 DOCTRINE, IT SEEMS LIKE IT WOULD 00:24:58.833 --> 00:25:01.400 BE HARD TO ARGUE THAT THOSE SAME 00:25:01.400 --> 00:25:03.267 PRINCIPLES DON'T APPLY IN THIS 00:25:03.267 --> 00:25:03.733 CONTEXT. 00:25:03.733 --> 00:25:05.467 >> WELL, THERE ARE TWO KEY 00:25:05.467 --> 00:25:07.167 DISTINCTIONS IN THE GOVERNMENT 00:25:07.167 --> 00:25:07.400 CONTEXT. 00:25:07.400 --> 00:25:11.167 FIRST IS THAT THE DECISIONS THAT 00:25:11.167 --> 00:25:15.167 ADOPTED THIS, THE VARIANT OF THE 00:25:15.167 --> 00:25:17.333 APX DOCTRINE IN THE CORPORATE 00:25:17.333 --> 00:25:18.900 CONTEXT -- EXCUSE ME, GOVERNMENT 00:25:18.900 --> 00:25:20.533 CONTEXT, WERE DRIVEN BY CONCERNS 00:25:20.533 --> 00:25:22.333 FOR SEPARATION OF POWERS. 00:25:22.333 --> 00:25:24.600 >> ISN'T IT WE GO MORE RELEVANT 00:25:24.600 --> 00:25:27.133 TO COURTS TALK ABOUT THAT IN THE 00:25:27.133 --> 00:25:28.500 CONTEXT OF THE TYPES OF 00:25:28.500 --> 00:25:29.433 QUESTIONS THAT CAN BE ASKED IN 00:25:29.433 --> 00:25:30.933 THE SORT OF DISCRETIONARY 00:25:30.933 --> 00:25:31.733 GOVERNMENT DECISIONS. 00:25:31.733 --> 00:25:33.500 BUT IT SEEMS LIKE THE CORE OF 00:25:33.500 --> 00:25:34.867 THE DOCTRINE ORIGINATED WITH THE 00:25:34.867 --> 00:25:36.967 IDEA THAT, YOU KNOW, IF YOU JUST 00:25:36.967 --> 00:25:39.633 LITERALLY LOOK AT OUR DISCOVERY 00:25:39.633 --> 00:25:41.100 RULES, YOU COULD THEORETICALLY 00:25:41.100 --> 00:25:43.133 COME UP WITH SOME REASON WHY YOU 00:25:43.133 --> 00:25:44.867 COULD DEPOSE AN AGENCY HEAD FOR 00:25:44.867 --> 00:25:45.867 PRETTY MUCH ANYTHING THAT'S 00:25:45.867 --> 00:25:47.100 GOING ON IN THE AGENCY. 00:25:47.100 --> 00:25:49.133 IT SEEMS LIKE AS YOUR COLLEAGUE 00:25:49.133 --> 00:25:51.267 ON THE OTHER SIDE WAS SAYING THE 00:25:51.267 --> 00:25:52.567 SAME ARGUMENT KIND OF LIKE WHAT 00:25:52.567 --> 00:25:54.067 YOU'RE FAKING IN THIS CASE IN 00:25:54.067 --> 00:25:55.500 THE CORPORATE CONTEXT. 00:25:55.500 --> 00:25:58.100 >> WELL, RESPECTFULLY, JUSTICE 00:25:58.100 --> 00:25:59.633 MUNIZ, I HAVE TO DISAGREE. 00:25:59.633 --> 00:26:02.133 THERE IS ACTUALLY -- I REVIEWED 00:26:02.133 --> 00:26:04.133 ALL THE GOVERNMENT APEX CASES 00:26:04.133 --> 00:26:05.833 RECENTLY, AND THERE'S NOT ONE 00:26:05.833 --> 00:26:07.000 MENTIONED ABOUT ANY RULES OF 00:26:07.000 --> 00:26:09.167 DISCOVERY IN THERE THAT I COULD 00:26:09.167 --> 00:26:09.467 SEE. 00:26:09.467 --> 00:26:11.967 JUST MAYBE A CASUAL MENTION THAT 00:26:11.967 --> 00:26:13.867 SOMEBODY MOVED FOR A PROTECTIVE 00:26:13.867 --> 00:26:14.333 ORDER. 00:26:14.333 --> 00:26:16.800 NOW, THE DOCTRINE ORIGINATED OUT 00:26:16.800 --> 00:26:18.867 OF CONCERN FOR SEPARATION OF 00:26:18.867 --> 00:26:19.233 POWERS. 00:26:19.233 --> 00:26:23.000 GOING BACK TO THE HRS V. BROOK 00:26:23.000 --> 00:26:26.467 CASE, 573363. 00:26:26.467 --> 00:26:29.833 THAT CASE WASES ADDRESSING MORE 00:26:29.833 --> 00:26:32.667 TRIAL TESTIMONY, AND IN THE 00:26:32.667 --> 00:26:34.400 LATER DECISIONS THE FIRST 00:26:34.400 --> 00:26:36.533 DISTRICT ABLEWED THE SAME 00:26:36.533 --> 00:26:37.967 PRINCIPLES TO DEPOSITIONS. 00:26:37.967 --> 00:26:42.167 AND, AGAIN, IT WAS SAME CONCERN 00:26:42.167 --> 00:26:45.100 LARGELY DRIVEN BY A CONCERN FOR 00:26:45.100 --> 00:26:46.533 SEPARATION OF POWERS WHERE 00:26:46.533 --> 00:26:49.300 AGENCY HEADS WERE BEING BROUGHT 00:26:49.300 --> 00:26:51.600 IN TO ASK TO EXPLAIN THEIR 00:26:51.600 --> 00:26:53.000 REASONING BEHIND THE 00:26:53.000 --> 00:26:55.333 DISCRETIONARY DECISIONS OR HOW 00:26:55.333 --> 00:27:00.433 THEY WOULD HAVE RULED IN 00:27:00.433 --> 00:27:01.333 HYPOTHETICAL SITUATION ES. 00:27:01.333 --> 00:27:05.800 SO THERE'S A SEPARATION OF POWER 00:27:05.800 --> 00:27:07.233 CONCERN AND THERE'S ALSO A 00:27:07.233 --> 00:27:08.700 PUBLIC POLICY MATTER WHICH IS 00:27:08.700 --> 00:27:13.267 THAT THOSE CASES ARE ALL DRIVEN 00:27:13.267 --> 00:27:15.133 BY, ALSO BY A CONCERN THAT IF 00:27:15.133 --> 00:27:16.933 AGENCY HEADS ARE SUBJECTED TO 00:27:16.933 --> 00:27:18.900 TOO MANY DEPOSITIONS, THAT IT 00:27:18.900 --> 00:27:20.000 WOULD DETER QUALIFIED PEOPLE 00:27:20.000 --> 00:27:21.567 FROM WANTING TO SEEK THOSE 00:27:21.567 --> 00:27:23.067 POSITIONS IN GOVERNMENT. 00:27:23.067 --> 00:27:26.567 WELL, THERE'S NO PUBLIC POLICY 00:27:26.567 --> 00:27:30.833 THAT DRIVES COURTS TO TRY TO 00:27:30.833 --> 00:27:33.400 ENCOURAGE EMPLOYMENT AS HEADS OF 00:27:33.400 --> 00:27:35.267 PRIVATE CORPORATIONS. 00:27:35.267 --> 00:27:36.367 THE PUBLIC POLICY CONCERN JUST 00:27:36.367 --> 00:27:37.133 ISN'T HERE. 00:27:37.133 --> 00:27:38.367 AND THAT'S ONE OF THE REASONS 00:27:38.367 --> 00:27:39.967 WHY THE CITIGROUP CASE AND 00:27:39.967 --> 00:27:41.967 FLORIDA OFFICE OF INSURANCE 00:27:41.967 --> 00:27:46.567 REGULATION SAID THAT THE PRIVATE 00:27:46.567 --> 00:27:47.900 CONTEXT IS DISTINGUISHABLE, THAT 00:27:47.900 --> 00:27:50.667 WE DON'T HAVE THAT PUBLIC POLICY 00:27:50.667 --> 00:27:50.900 CONCERN. 00:27:50.900 --> 00:27:53.433 >> WELL, THAT'S -- I MEAN, LOOK, 00:27:53.433 --> 00:27:55.167 THE MORE YOU TALK POLICY, THE 00:27:55.167 --> 00:27:56.333 BACKER YOUR POSITION IS. 00:27:56.333 --> 00:27:57.833 I THINK STICKING TO SORT OF THE 00:27:57.833 --> 00:27:59.567 BLACK LETTER EXISTING LAWS, I 00:27:59.567 --> 00:28:01.600 MEAN, BECAUSE IT'S REALLY -- IT 00:28:01.600 --> 00:28:02.800 SEEMS INDEFENSIBLE THAT YOU 00:28:02.800 --> 00:28:04.133 COULD HAVE SORT OF ONE POLICY 00:28:04.133 --> 00:28:07.200 FOR AN AGENCY HERE AND A POLICY 00:28:07.200 --> 00:28:09.533 THAT ACTS LIKE WE SHOULD BE 00:28:09.533 --> 00:28:13.467 INDIFFERENT TO, YOU KNOW, 00:28:13.467 --> 00:28:14.367 POTENTIAL HARASSMENT OF PEOPLE 00:28:14.367 --> 00:28:15.733 WHO ARE SIMILARLY PRESIDENTIAL 00:28:15.733 --> 00:28:17.000 HI INVOLVED IN EVERYTHING 00:28:17.000 --> 00:28:18.100 THAT -- POTENTIALLY INVOLVED IN 00:28:18.100 --> 00:28:19.733 EVERYTHING THAT THAT GOES ON 00:28:19.733 --> 00:28:20.667 LITERALLY IN THIS CASE ALL OVER 00:28:20.667 --> 00:28:21.100 THE WORLD. 00:28:21.100 --> 00:28:22.900 >> WELL, I CAN ONLY OFFER WHY 00:28:22.900 --> 00:28:24.967 THOSE COURTS ADOPTED THAT 00:28:24.967 --> 00:28:28.733 GOVERNMENT APEX RULE WHICH HAS 00:28:28.733 --> 00:28:30.500 NEVER BEEN BEFORE THIS COURT 00:28:30.500 --> 00:28:30.733 BEFORE. 00:28:30.733 --> 00:28:32.000 THIS COURT HAS NEVER REALLY 00:28:32.000 --> 00:28:33.833 WEIGHED IN ON THAT, WHETHER THAT 00:28:33.833 --> 00:28:35.833 WAS CORRECT LAW IN THE FIRST 00:28:35.833 --> 00:28:36.533 PLACE. 00:28:36.533 --> 00:28:38.267 BUT THOSE GOVERNMENT CONTEXT 00:28:38.267 --> 00:28:40.500 CASES, THEY'RE NOT BASED ON ANY 00:28:40.500 --> 00:28:42.433 RULES OF PROCEDURE, THE ORIGIN 00:28:42.433 --> 00:28:44.767 OR THE SEPARATION OF POWERS 00:28:44.767 --> 00:28:45.733 CONCERNS, AND THERE'S PUBLIC 00:28:45.733 --> 00:28:47.433 POLICY OF ENCOURAGING 00:28:47.433 --> 00:28:48.600 EMPLOYMENT, NEITHER OF WHICH 00:28:48.600 --> 00:28:49.233 APPLIES HERE. 00:28:49.233 --> 00:28:52.500 WHAT WE DO HAVE IN THE CORPORATE 00:28:52.500 --> 00:28:53.767 CONTEXT, THE PRIVATE CONTEXT, WE 00:28:53.767 --> 00:28:55.733 HAVE A SET OF RULES THAT THERE'S 00:28:55.733 --> 00:28:57.667 ABSOLUTELY NO WAY TO DISCERN IN 00:28:57.667 --> 00:28:59.467 THE TEXT OF ANY OF THESE RULES 00:28:59.467 --> 00:29:02.367 ANY BASIS THAT GIVES SPECIAL 00:29:02.367 --> 00:29:05.600 TREATMENT TO TOP OFFICERS OF 00:29:05.600 --> 00:29:06.567 CORPORATIONS WHEN SOMEBODY WANTS 00:29:06.567 --> 00:29:07.900 TO TAKE THEIR DEPOSITION CAN. 00:29:07.900 --> 00:29:09.867 THERE'S NOTHING IN THERE THAT 00:29:09.867 --> 00:29:11.700 PUTS ANY BURDEN ON THE PERSON 00:29:11.700 --> 00:29:13.000 SEEKING THEIR DEPOSITION TO HAVE 00:29:13.000 --> 00:29:15.867 TO MAKE THIS UNIQUE SHOWING THAT 00:29:15.867 --> 00:29:18.833 THE OPPONENT WILL HAVE UNIQUE 00:29:18.833 --> 00:29:20.133 KNOWLEDGE THAT NOBODY ELSE HAS 00:29:20.133 --> 00:29:22.400 AND THAT THEY'VE EXHAUSTED EVERY 00:29:22.400 --> 00:29:24.533 OTHER SOURCE OF DISCOVERY. 00:29:24.533 --> 00:29:27.767 YOU KNOW, THE VERSION OF THE 00:29:27.767 --> 00:29:29.767 DOCTRINE THAT'S RAISED IN THIS 00:29:29.767 --> 00:29:31.067 QUESTION, IT WOULD REQUIRE OR 00:29:31.067 --> 00:29:33.000 EXHAUSTION OF ALL OTHER 00:29:33.000 --> 00:29:34.700 DISCOVERY EVEN IF THE APEX 00:29:34.700 --> 00:29:36.433 OFFICIAL HAS UNIQUE KNOWLEDGE 00:29:36.433 --> 00:29:37.833 WHICH, YOU KNOW, DOESN'T MAKE 00:29:37.833 --> 00:29:38.300 SENSE. 00:29:38.300 --> 00:29:40.733 IF IT'S UNIQUE KNOWLEDGE, WHY IS 00:29:40.733 --> 00:29:42.533 NOT EVERYTHING ELSE? 00:29:42.533 --> 00:29:43.900 SO, YOU KNOW, THERE'S NO BASIS 00:29:43.900 --> 00:29:47.267 IN THE RULES, AND REALLY THIS 00:29:47.267 --> 00:29:51.100 DOCTRINE IS UNNECESSARY. 00:29:51.100 --> 00:29:54.233 ONE POINT WHERE I THINK WE AGREE 00:29:54.233 --> 00:29:56.767 WITH SUZUKI IS THAT EXISTING 00:29:56.767 --> 00:29:59.667 RULES ARE SUFFICIENT TO ADDRESS 00:29:59.667 --> 00:30:01.800 THIS SUPPOSED PROBLEM, IF IT 00:30:01.800 --> 00:30:05.467 REALLY IS A PROBLEM, OF 00:30:05.467 --> 00:30:05.933 POTENTIALLY HARASSING 00:30:05.933 --> 00:30:09.667 DEPOSITIONS OF CEOS CHAIRMANS OF 00:30:09.667 --> 00:30:10.533 THE BOARD. 00:30:10.533 --> 00:30:12.667 WE JUST DISAGREE ON HOW THAT 00:30:12.667 --> 00:30:13.767 APPLIES TO THE FACTS HERE. 00:30:13.767 --> 00:30:15.733 SO MY POINT BEING IS THAT THE 00:30:15.733 --> 00:30:17.467 RULES, THE CURRENT RULES PROVIDE 00:30:17.467 --> 00:30:20.467 TRIAL COURTS ALL THE TOOLS THEY 00:30:20.467 --> 00:30:22.000 NEED TO PREVENT HARASSING 00:30:22.000 --> 00:30:24.800 DEPOSITIONS AND TO MAKE SURE 00:30:24.800 --> 00:30:25.967 THAT, YOU KNOW, THE WHEELS OF 00:30:25.967 --> 00:30:27.200 COMMERCE AREN'T GOING TO BE 00:30:27.200 --> 00:30:30.333 GROUND TO A HALT BY CALLING 00:30:30.333 --> 00:30:33.967 EVERY CEO TO E AND CHAIRMAN IN 00:30:33.967 --> 00:30:35.533 FOR DEPOSITION OVER AND OVER AND 00:30:35.533 --> 00:30:36.567 TO MAKE SURE THAT DEPOSITIONS 00:30:36.567 --> 00:30:39.100 ARE ARE GOING TO BE REASONABLY 00:30:39.100 --> 00:30:41.567 CALCULATED TO LEAD TO ADMISSIBLE 00:30:41.567 --> 00:30:41.933 EVIDENCE. 00:30:41.933 --> 00:30:44.400 >> ISN'T -- AREN'T THE FACTS 00:30:44.400 --> 00:30:46.833 HERE SORT OF THE POSTER CHILD 00:30:46.833 --> 00:30:48.867 FOR WHY MAYBE THERE SHOULD BE 00:30:48.867 --> 00:30:50.500 MORE GUIDANCE TO THE TRIAL 00:30:50.500 --> 00:30:50.767 COURTS? 00:30:50.767 --> 00:30:52.267 REALLY IT SEEMS LIKE THE ONLY 00:30:52.267 --> 00:30:54.300 THING YOU'RE HANGING YOUR HAT ON 00:30:54.300 --> 00:30:55.533 FOR WHY THERE SHOULD BE A 00:30:55.533 --> 00:30:56.567 DEPOSITION HERE THIS, YOU KNOW, 00:30:56.567 --> 00:30:58.333 THE FACT THAT THIS PIECE OF 00:30:58.333 --> 00:31:00.133 PAPER WAS SHOWN TO THIS GUY WHO 00:31:00.133 --> 00:31:02.367 PROBABLY SEES A GAZILLION OF 00:31:02.367 --> 00:31:03.100 THESE MEMOS. 00:31:03.100 --> 00:31:05.133 AND SO THERE'S NOTHING -- SO TO 00:31:05.133 --> 00:31:06.433 THE EXTENT THAT THERE'S NOTHING 00:31:06.433 --> 00:31:08.900 IN OUR RULES THAT PREVENT THAT, 00:31:08.900 --> 00:31:11.267 THEN IT SEEMS LIKE MAYBE THERE 00:31:11.267 --> 00:31:13.467 DOES NEED TO BE MORE, MORE MEAT 00:31:13.467 --> 00:31:16.500 ON THE BONES OF WHAT THE RULES 00:31:16.500 --> 00:31:16.933 ARE. 00:31:16.933 --> 00:31:18.667 >> WELL, IT WASN'T JUST THAT IT 00:31:18.667 --> 00:31:20.967 WAS SHOWN TO HIM, IT WAS 00:31:20.967 --> 00:31:21.700 DISCUSSED WITH HIM. 00:31:21.700 --> 00:31:23.500 IT WAS DISCUSSED WITH HIM, AND 00:31:23.500 --> 00:31:25.867 READING THE E-MAIL AFTERWARDS, 00:31:25.867 --> 00:31:28.633 THE E-MAIL INDICATES THAT THE 00:31:28.633 --> 00:31:31.467 MANAGERS INVOLVED WITH THAT 00:31:31.467 --> 00:31:32.967 DOCUMENT ARE APPARENTLY NEEDING 00:31:32.967 --> 00:31:35.700 HIS SIGNATURE FOR WHATEVER 00:31:35.700 --> 00:31:36.433 PURPOSE, YOU KNOW? 00:31:36.433 --> 00:31:40.767 THE E-MAIL SAYS TODAY WHEN I 00:31:40.767 --> 00:31:41.967 HANDED THE BACKGROUND MATERIAL 00:31:41.967 --> 00:31:44.167 FOR THE SENIOR MANAGING OFFICER, 00:31:44.167 --> 00:31:45.900 THE SENIOR MANAGING OFFICER 00:31:45.900 --> 00:31:48.067 EXPLAINED IT TO THE CHAIRMAN AND 00:31:48.067 --> 00:31:50.100 BACK WITH THE CHAIRMAN'S 00:31:50.100 --> 00:31:51.200 SIGNATURE, I'M SENDING THE 00:31:51.200 --> 00:31:52.800 MATERIAL WITH HIS SIGNATURE. 00:31:52.800 --> 00:31:54.200 SO THEY WERE WAITING FOR HIS 00:31:54.200 --> 00:31:54.467 SIGNATURE. 00:31:54.467 --> 00:31:56.233 YOU KNOW, DESPITE WHAT HE SAYS 00:31:56.233 --> 00:31:57.433 ABOUT NOT HAVING AUTHORITY TO 00:31:57.433 --> 00:31:59.200 APPROVE IT, IT REALLY DOESN'T 00:31:59.200 --> 00:32:02.767 STAND TO REASON THAT WHATEVER HE 00:32:02.767 --> 00:32:04.133 MIGHT HAVE THOUGHT OR SAID WHEN 00:32:04.133 --> 00:32:05.767 HE REVIEWED THIS, THAT THAT 00:32:05.767 --> 00:32:07.333 WOULD BE IGNORED BY THE COMPANY. 00:32:07.333 --> 00:32:08.633 AND IT WOULD CERTAINLY IS HAVE 00:32:08.633 --> 00:32:10.733 WEIGHT AT TRIALMENT BUT AGAIN, 00:32:10.733 --> 00:32:12.533 YOU KNOW, I WANT THE COURT TO 00:32:12.533 --> 00:32:13.800 STEP BACK. 00:32:13.800 --> 00:32:15.433 THIS EVIDENCE, IT WAS WEIGHED BY 00:32:15.433 --> 00:32:16.567 THE TRIAL JUDGE. 00:32:16.567 --> 00:32:17.700 HE MADE THIS RULING. 00:32:17.700 --> 00:32:20.700 IT'S A DISCRETIONARY RULING, AND 00:32:20.700 --> 00:32:22.567 IT'S ALREADY BEEN REBUKED ONCE 00:32:22.567 --> 00:32:24.400 BY THE FIRST DISTRICT COURT OF 00:32:24.400 --> 00:32:27.333 APPEAL THAT FOUND NO DEPARTURE 00:32:27.333 --> 00:32:28.667 FROM THESE REQUIREMENTS OF THE 00:32:28.667 --> 00:32:28.833 LAW. 00:32:28.833 --> 00:32:31.033 IS SO HOW DOES THIS CASE GET UP 00:32:31.033 --> 00:32:32.167 TO THIS COURT. 00:32:32.167 --> 00:32:34.633 WELL, THEY CERTIFIED THIS 00:32:34.633 --> 00:32:36.633 QUESTION OF GREAT PUBLIC 00:32:36.633 --> 00:32:38.133 IMPORTANCE, BUT THE QUESTION 00:32:38.133 --> 00:32:41.067 THAT SUE ZUCCHINI KEY WOULD LIKE 00:32:41.067 --> 00:32:43.467 THAT TO BE, WHEN THIS COURT 00:32:43.467 --> 00:32:45.400 SHOULD ADOPT THE A APEX 00:32:45.400 --> 00:32:46.567 DOCTRINE, THAT'S NOT A QUESTION 00:32:46.567 --> 00:32:48.367 THAT THE FIRST DISTRICT EVER 00:32:48.367 --> 00:32:49.233 PASSED UPON. 00:32:49.233 --> 00:32:52.367 SO, YOU KNOW, IT'S A FUNDAMENTAL 00:32:52.367 --> 00:32:55.467 PRINCIPLE OF THE COURT'S 00:32:55.467 --> 00:32:58.567 JURISDICTION UNDER ARTICLE V 00:32:58.567 --> 00:32:59.900 3B4, IT DOESN'T HAVE 00:32:59.900 --> 00:33:01.167 JURISDICTION TO ANSWER QUESTIONS 00:33:01.167 --> 00:33:02.967 THAT WERE NEVER ASKED UPON BY 00:33:02.967 --> 00:33:03.933 THE DISTRICT COURT. 00:33:03.933 --> 00:33:06.233 SO HERE THE FIRST DISTRICT, THEY 00:33:06.233 --> 00:33:08.267 NEVER WEIGHED THE PROS AND CONS 00:33:08.267 --> 00:33:09.667 OF EXTENDING THE APEX DOCK RUN 00:33:09.667 --> 00:33:12.767 THE TO THE CORPORATE SIDE -- 00:33:12.767 --> 00:33:14.333 DOCTRINE TO THE CORPORATE SIDE, 00:33:14.333 --> 00:33:15.967 NEVER CANVASSED THE CASES AROUND 00:33:15.967 --> 00:33:17.467 THE COUNTRY FROM DIFFERENT 00:33:17.467 --> 00:33:19.300 STATES, SOME ADOPTING, SOME 00:33:19.300 --> 00:33:20.533 REJECTING, EXAMINED WHETHER IT'S 00:33:20.533 --> 00:33:21.633 CONSISTENT WITH THE RULES. 00:33:21.633 --> 00:33:26.067 SO THAT QUESTION THAT SUZUKI 00:33:26.067 --> 00:33:27.333 WAS, YOU KNOW, HAS BEEN ASKING 00:33:27.333 --> 00:33:29.233 THIS COURT TO ANSWER UNTIL THEY 00:33:29.233 --> 00:33:30.733 SEEMED TO CHANGE COURSE TODAY, 00:33:30.733 --> 00:33:33.200 YOU KNOW, THAT WHETHER THIS 00:33:33.200 --> 00:33:35.167 DOCTRINE SHOULD BE ADOPTED BY 00:33:35.167 --> 00:33:36.600 THIS COURT, THAT'S NOT A 00:33:36.600 --> 00:33:38.200 QUESTION THAT WAS EVER PASSED 00:33:38.200 --> 00:33:39.300 UPON BY THE FIRST DISTRICT. 00:33:39.300 --> 00:33:40.000 AND SO -- 00:33:40.000 --> 00:33:41.700 >> JUDGE THOMAS SPENT SOME TIME 00:33:41.700 --> 00:33:44.800 TALKING ABOUT IT, DIDN'T HE? 00:33:44.800 --> 00:33:47.133 >> WELL, HE CERTAINLY DID. 00:33:47.133 --> 00:33:55.533 BUT A DISSENT IS NOT -- YES, HE 00:33:55.533 --> 00:33:55.700 DID. 00:33:55.700 --> 00:33:56.767 BUT THE -- RIGHT. 00:33:56.767 --> 00:33:58.633 BUT THE COURT HAS TO LOOK TO THE 00:33:58.633 --> 00:33:59.633 MAJORITY OPINION BECAUSE THE 00:33:59.633 --> 00:34:02.933 COURT REVIEWS THE DECISION THAT 00:34:02.933 --> 00:34:05.767 PASSES UPON A QUESTION CERTIFIED 00:34:05.767 --> 00:34:07.433 TO BE OF GREAT PUBLIC 00:34:07.433 --> 00:34:07.733 IMPORTANCE. 00:34:07.733 --> 00:34:10.200 SO IT HAD TO BE PASSED UPON BY 00:34:10.200 --> 00:34:10.467 THE -- 00:34:10.467 --> 00:34:11.900 >> IN THIS CASE THERE'S NO 00:34:11.900 --> 00:34:13.300 QUESTION THE COURT PASSED UPON 00:34:13.300 --> 00:34:14.767 THE QUESTION THAT IT CERTIFIED 00:34:14.767 --> 00:34:17.167 WHICH IS, IS IT A DEPARTURE FROM 00:34:17.167 --> 00:34:18.100 THE ESSENTIAL REQUIREMENTS OF 00:34:18.100 --> 00:34:19.833 LAW ARE, DOT, DOT, DOT. 00:34:19.833 --> 00:34:22.433 SO THAT MEANS THAT'S THE GATE TO 00:34:22.433 --> 00:34:23.367 JURISDICTION. 00:34:23.367 --> 00:34:24.800 AND NO YOUR COLLEAGUE ON THE 00:34:24.800 --> 00:34:26.400 OTHER SIDE HAS ASKED US TO 00:34:26.400 --> 00:34:27.400 REVIEW THE DECISION. 00:34:27.400 --> 00:34:28.967 AND WE'RE BEING ASKED TO DECIDE 00:34:28.967 --> 00:34:31.400 IS IT A DEPARTURE FROM THE 00:34:31.400 --> 00:34:32.533 ESSENTIAL REQUIREMENTS OF LAW, 00:34:32.533 --> 00:34:34.067 AND IT SOUNDS LIKE HE'S BASING 00:34:34.067 --> 00:34:35.733 HIS ARGUMENT ON SOME, YOU KNOW, 00:34:35.733 --> 00:34:37.467 BROADER PRINCIPLES HERE THAT AT 00:34:37.467 --> 00:34:40.167 LEAST THERE IS SOME HOOK IN 00:34:40.167 --> 00:34:40.900 EXISTING FLORIDA LAW. 00:34:40.900 --> 00:34:42.133 SO I DON'T THINK THAT IT'S, I 00:34:42.133 --> 00:34:43.600 DON'T THINK THAT -- REGARDLESS 00:34:43.600 --> 00:34:44.867 OF HOW WE SHOULD ANSWER THE 00:34:44.867 --> 00:34:46.100 QUESTION, IT DOESN'T SEEM LIKE 00:34:46.100 --> 00:34:48.167 IT'S NOT PROPERLY BEFORE THE 00:34:48.167 --> 00:34:48.867 COURT. 00:34:48.867 --> 00:34:50.400 >> WELL, I SUBMIT THAT THE 00:34:50.400 --> 00:34:53.400 QUESTION OF WHETHER THIS 00:34:53.400 --> 00:34:54.800 DOCTRINE SHOULD BE ADOPTED IS 00:34:54.800 --> 00:34:56.933 NOT PROPERLY BEFORE THE COURT. 00:34:56.933 --> 00:35:03.333 WHAT THE FIRST DISTRICT -- 00:35:03.333 --> 00:35:05.933 >> BE HELPFUL IF I UNMUTE. 00:35:05.933 --> 00:35:07.700 WHERE IN THE QUESTION, COUNSEL 00:35:07.700 --> 00:35:09.400 CAN, IS THE WORD SHOULD? 00:35:09.400 --> 00:35:11.267 >> IT'S NOT IN THERE, AND THAT'S 00:35:11.267 --> 00:35:11.767 MY POINT. 00:35:11.767 --> 00:35:14.933 >> WELL, BUT THEY'RE ASKING US, 00:35:14.933 --> 00:35:19.367 THEY JUST, THEY MADE A DECISION 00:35:19.367 --> 00:35:20.700 THAT THERE WAS NOT A VIOLATION 00:35:20.700 --> 00:35:23.867 OF THE ESSENTIAL REQUIREMENTS OF 00:35:23.867 --> 00:35:25.700 LAW, AND THEY'RE ASKING US TO 00:35:25.700 --> 00:35:27.700 ADDRESS THAT SAME QUESTION, 00:35:27.700 --> 00:35:28.933 WHETHER THEY WERE RIGHT OR WRONG 00:35:28.933 --> 00:35:31.733 ON THAT QUESTION THAT THEY 00:35:31.733 --> 00:35:32.000 ADDRESSED. 00:35:32.000 --> 00:35:33.733 I MEAN, WHETHER THIS CASE OUGHT 00:35:33.733 --> 00:35:35.633 TO BE DISCHARGED FOR SOME ORR 00:35:35.633 --> 00:35:37.367 REASON, THAT'S A DIFFERENT -- 00:35:37.367 --> 00:35:38.900 SOME OTHER REASON, THAT'S A 00:35:38.900 --> 00:35:39.367 DIFFERENT QUESTION. 00:35:39.367 --> 00:35:43.000 BUT ON THAT, JUST HOW THEY 00:35:43.000 --> 00:35:44.833 DIDN'T PASS ON WHAT THEY'VE 00:35:44.833 --> 00:35:46.933 ACTUALLY ASKED HERE, I'M 00:35:46.933 --> 00:35:48.433 MYSTIFIED BUT IT. 00:35:48.433 --> 00:35:50.367 >> YES. 00:35:50.367 --> 00:35:52.600 THAT ACTUAL WASN'T WHAT I WAS 00:35:52.600 --> 00:35:52.967 ARGUING. 00:35:52.967 --> 00:35:54.933 WHAT THEY ACTUALLY WROTE, WHAT 00:35:54.933 --> 00:35:56.833 THE CERTIFIED QUESTION ACTUALLY 00:35:56.833 --> 00:35:59.267 ASKS AND WHAT THEY PASSED UPON 00:35:59.267 --> 00:36:01.333 WHETHER THE APEX DOCTRINE IS 00:36:01.333 --> 00:36:02.533 CURRENTLY LAW. 00:36:02.533 --> 00:36:05.033 EVERYONE IN THE CORPORATE 00:36:05.033 --> 00:36:05.267 CONTEXT. 00:36:05.267 --> 00:36:08.000 EVERYONE AGREES THAT IT ISN'T. 00:36:08.000 --> 00:36:09.700 SUZUKI AGREED THAT IT ISN'T IN 00:36:09.700 --> 00:36:11.533 PAGE 3 OF THE REPLY BRIEF. 00:36:11.533 --> 00:36:13.467 AND SO LOOKING AT IT THAT WAY, 00:36:13.467 --> 00:36:15.133 IT'S A VERY SIMPLE MATTER. 00:36:15.133 --> 00:36:16.633 YOU CAN EITHER DISCHARGE 00:36:16.633 --> 00:36:17.500 JURISDICTION BECAUSE IT'S 00:36:17.500 --> 00:36:18.800 ALREADY SETTLED AND YOU DON'T 00:36:18.800 --> 00:36:20.967 NEED TO ANSWER IT, OR YOU CAN 00:36:20.967 --> 00:36:23.767 JUST SAW, NO, IT'S NOT CURRENTLY 00:36:23.767 --> 00:36:25.567 LAW IN THE CORPORATE CONTEXT, 00:36:25.567 --> 00:36:29.167 AND SO THERE'S NO DEPARTURE FROM 00:36:29.167 --> 00:36:31.400 THE RUMORS OF LAW IN FAILING -- 00:36:31.400 --> 00:36:32.400 REQUIREMENTS OF LAW IN FAILING 00:36:32.400 --> 00:36:33.267 TO I APPLY IT. 00:36:33.267 --> 00:36:35.300 YOU DID THE RIGHT THING IN 00:36:35.300 --> 00:36:38.333 DENYINGER IS CERTIORARI BECAUSEE 00:36:38.333 --> 00:36:43.033 WAS NO CLEARLY ESTABLISHED LAW 00:36:43.033 --> 00:36:45.033 EXTENDING THIS VERY RIGID APEX 00:36:45.033 --> 00:36:47.467 RULE TO THE CORPORATE CONTEXT. 00:36:47.467 --> 00:36:50.133 IT'S BEEN EITHER REJECTED OR 00:36:50.133 --> 00:36:52.767 DECLINED TO BE APPLIED IN EVERY 00:36:52.767 --> 00:36:54.133 DISTRICT COURT DECISION THAT'S 00:36:54.133 --> 00:37:00.767 EVER LOOKED AT THE QUESTION. 00:37:00.767 --> 00:37:03.133 AND I KNOW I'M RUNNING LOW ON 00:37:03.133 --> 00:37:07.100 TIME, BUT JUST TO SUM UP, WE 00:37:07.100 --> 00:37:08.567 MAINTAIN THERE'S NO JURISDICTION 00:37:08.567 --> 00:37:10.533 TO ANSWER THE SHOULD QUESTION 00:37:10.533 --> 00:37:12.133 BECAUSE THAT WAS NEVER PASSED 00:37:12.133 --> 00:37:12.533 UPON. 00:37:12.533 --> 00:37:13.967 BEYOND THAT, THIS IS THE WRONG 00:37:13.967 --> 00:37:16.800 CASE BECAUSE THE UNUSUAL 00:37:16.800 --> 00:37:19.100 PROCEDURES AND THE SPECIFIC 00:37:19.100 --> 00:37:21.000 FACTUAL CONTEXT TO REALLY DECIDE 00:37:21.000 --> 00:37:23.900 WHETHER THE APEX DOCTRINE SHOULD 00:37:23.900 --> 00:37:26.200 BE ADOPTED, THE DOCTRINE 00:37:26.200 --> 00:37:28.100 UNNECESSARY BECAUSE CURRENT 00:37:28.100 --> 00:37:30.500 RULES ALREADY GIVE TRIAL JUDGES 00:37:30.500 --> 00:37:33.833 ENOUGH DISCRETION TO DEAL WITH 00:37:33.833 --> 00:37:35.000 ANY PROBLEM POTENTIALLY 00:37:35.000 --> 00:37:37.133 HARASSING TRANSPORTATIONS WHEN 00:37:37.133 --> 00:37:37.933 THEY ARISE. 00:37:37.933 --> 00:37:39.633 AND IF THE COURT WERE TO 00:37:39.633 --> 00:37:41.500 CONSIDER WHETHER TO ADOPT THIS 00:37:41.500 --> 00:37:45.100 VERY RIGID RULE THAT GREATLY 00:37:45.100 --> 00:37:47.667 LIMITS DISCOVERY IN EVERY CASE 00:37:47.667 --> 00:37:49.067 INVOLVING CORPORATE POLICIES, 00:37:49.067 --> 00:37:52.633 THAT WOULD BEST BE DONE IN A 00:37:52.633 --> 00:37:53.467 RURAL PROCEEDING. 00:37:53.467 --> 00:37:55.033 SO IN CONCLUSION, WE'RE ASKING 00:37:55.033 --> 00:37:57.000 THE COURT TO DISCHARGE 00:37:57.000 --> 00:37:57.333 JURISDICTION. 00:37:57.333 --> 00:37:59.067 FAILING THAT, IT SHOULD ANSWER 00:37:59.067 --> 00:38:01.133 THE CERTIFIED QUESTION IN THE 00:38:01.133 --> 00:38:03.233 NEGATIVE AND APPROVE THE FIRST 00:38:03.233 --> 00:38:06.167 DISTRICT'S OPINION. 00:38:06.167 --> 00:38:08.700 DECISION DENYING CERTIORARI. 00:38:08.700 --> 00:38:09.867 >> THANK YOU, COUNSEL. 00:38:09.867 --> 00:38:14.167 NOW FOR REBUTTAL ARGUMENT. 00:38:14.167 --> 00:38:17.267 >> PERHAPS WORKING MY WAY 00:38:17.267 --> 00:38:18.433 BACKWARD, UNLESS THE COURT HAS 00:38:18.433 --> 00:38:20.367 ANY QUESTIONS, AS TO THE 00:38:20.367 --> 00:38:22.267 CERTIFIED QUESTION, THE FIRST 00:38:22.267 --> 00:38:24.733 CERTIFIED QUESTION ASKS DOES A 00:38:24.733 --> 00:38:26.633 TRIAL COURT DEPART FROM THE 00:38:26.633 --> 00:38:28.167 ESSENTIAL REQUIREMENTS OF LAW BY 00:38:28.167 --> 00:38:30.400 NOT REQUIRING A PARTY SEEKING TO 00:38:30.400 --> 00:38:32.733 DEPOSE THE TOP OFFICER OF A 00:38:32.733 --> 00:38:34.767 CORPORATION TO SHOW THAT, ONE, 00:38:34.767 --> 00:38:36.300 OTHER MEANS OF DISCOVERY HAVE 00:38:36.300 --> 00:38:38.267 BEEN EXHAUSTED AND, TWO, THE 00:38:38.267 --> 00:38:41.567 CORPORATE OFFICER'S UNIQUELY 00:38:41.567 --> 00:38:43.567 ABLE TO PROVIDE RELEVANT 00:38:43.567 --> 00:38:45.533 INFORMATION THAT CAN NOT BE 00:38:45.533 --> 00:38:46.767 OBTAINED IF OTHER SOURCES. 00:38:46.767 --> 00:38:47.967 THERE CAN BE NO QUESTION THAT 00:38:47.967 --> 00:38:49.567 BOTH THE MAJORITY AND THE 00:38:49.567 --> 00:38:50.700 DISISN'T ADDRESSED THAT ISSUE. 00:38:50.700 --> 00:38:52.967 THAT WAS THE WHOLE POINT OF THE 00:38:52.967 --> 00:38:55.667 MAJORITY AND DISSENTING 00:38:55.667 --> 00:38:55.900 OPINIONS. 00:38:55.900 --> 00:38:57.033 SO I DON'T THINK THERE'S ANY 00:38:57.033 --> 00:38:58.967 QUESTION THAT THE COURT DOES 00:38:58.967 --> 00:39:01.233 HAVE DISCRETIONARY JURISDICTION, 00:39:01.233 --> 00:39:03.933 AND I ALSO SUBMIT THAT THE COURT 00:39:03.933 --> 00:39:05.400 SHOULD RETAIN JURISDICTION AND 00:39:05.400 --> 00:39:09.200 ANSWER THE QUESTION OR ANY 00:39:09.200 --> 00:39:09.900 REPHRASED QUESTION BECAUSE OF 00:39:09.900 --> 00:39:12.600 THE POLICY ISSUES INVOLVED AND 00:39:12.600 --> 00:39:16.333 TO I HIM NATE ANY INCONGRUITY 00:39:16.333 --> 00:39:20.567 BETWEEN THE PROTECTIONS THAT IN 00:39:20.567 --> 00:39:22.233 IN -- THAT AN APEX PUBLIC 00:39:22.233 --> 00:39:26.067 OFFICIAL RECEIVES AND AN A APEX 00:39:26.067 --> 00:39:27.767 PRIVATE OFFICIAL RECEIVES. 00:39:27.767 --> 00:39:29.800 LET US REMEMBER AS FAR AS PUBLIC 00:39:29.800 --> 00:39:31.067 OFFICIALS, THEIR ROLE IS 00:39:31.067 --> 00:39:31.367 IMPORTANT. 00:39:31.367 --> 00:39:32.700 BUT IT'S RESTRICTED TO THE STATE 00:39:32.700 --> 00:39:33.200 OF FLORIDA. 00:39:33.200 --> 00:39:35.333 FOR APEX OFFICIALS IN THE 00:39:35.333 --> 00:39:36.900 PRIVATE CORPORATIONS AS IS THE 00:39:36.900 --> 00:39:42.600 CASE HERE, THEIR INFLUENCE IS 00:39:42.600 --> 00:39:44.100 WORLDWIDE. 00:39:44.100 --> 00:39:46.633 SUZUKI OPERATES IN MANY PARTS OF 00:39:46.633 --> 00:39:50.233 THE WORLD, AND SO I SUBMIT THAT 00:39:50.233 --> 00:39:52.733 THE STATE SHOULD PROTECT THOSE 00:39:52.733 --> 00:39:55.033 OFFICIALS AT LEAST AS MUCH AS IT 00:39:55.033 --> 00:39:56.067 PROTECTS PUBLIC OFFICIALS. 00:39:56.067 --> 00:39:59.733 SO THAT'S A REASON TO RETAIN THE 00:39:59.733 --> 00:39:59.933 CASE. 00:39:59.933 --> 00:40:01.600 ON THE MERITS I'D LIKE TO 00:40:01.600 --> 00:40:04.100 ADDRESS JUDGE MUNIZ, YOU 00:40:04.100 --> 00:40:05.733 REFERRED TO THE BLACK LETTER 00:40:05.733 --> 00:40:06.000 LAW. 00:40:06.000 --> 00:40:10.100 WE HAVE RULE 1.280B1, I BELIEVE 00:40:10.100 --> 00:40:13.167 IT IS, WHICH REQUIRES THAT THE 00:40:13.167 --> 00:40:15.767 DISCOVERY BE RELEVANT OR 00:40:15.767 --> 00:40:19.600 REASONABLY LIKELY TO LEAD TO THE 00:40:19.600 --> 00:40:21.333 DISCOVERY OF RELEVANT 00:40:21.333 --> 00:40:21.767 INFORMATION. 00:40:21.767 --> 00:40:24.600 THIS COURT AND OTHER COURTS HAVE 00:40:24.600 --> 00:40:26.167 ROUTINELY, HISTORICALLY, 00:40:26.167 --> 00:40:28.367 TRADITIONALLY REVIEWED DISCOVERY 00:40:28.367 --> 00:40:31.433 ORDERS ON THAT BASIS. 00:40:31.433 --> 00:40:34.167 IT QUASHES DISCOVERY ORDERS 00:40:34.167 --> 00:40:36.500 REGARDLESS OF WHETHER THERE WAS 00:40:36.500 --> 00:40:39.433 ALREADY A CASE ON POINT. 00:40:39.433 --> 00:40:41.433 IN THE DISCOVERY CONTEXT IF YOU 00:40:41.433 --> 00:40:42.967 NEED THERE TO BE A PRIOR CASE, 00:40:42.967 --> 00:40:47.500 YOU PROBABLY WOULD NOT DECIDE 00:40:47.500 --> 00:40:50.367 90% OF PETITIONS FOR CERTIORARI 00:40:50.367 --> 00:40:51.567 BECAUSE THERE ARE ALWAYS KNEW 00:40:51.567 --> 00:40:54.133 WEEK, NEW FACTUAL CIRCUMSTANCES. 00:40:54.133 --> 00:40:56.700 THE COURTS DO NOT SAY IS THERE 00:40:56.700 --> 00:40:58.733 ESTABLISHED LAW ON POINT IN 00:40:58.733 --> 00:41:00.667 WHICH CASE RARELY WILL A TRIAL 00:41:00.667 --> 00:41:01.767 JUDGE VIOLATE IT. 00:41:01.767 --> 00:41:03.033 >> I UNDERSTAND WHAT YOU'RE 00:41:03.033 --> 00:41:04.767 SAYING, BUT IT SEEMS LIKE WE 00:41:04.767 --> 00:41:05.933 EITHER, YOU KNOW, IN ORDER TO 00:41:05.933 --> 00:41:08.633 SORT OF JUSTIFY OUR KIND OF 00:41:08.633 --> 00:41:10.167 INTERVENING HERE, YOU COULD 00:41:10.167 --> 00:41:12.133 IMAGINE, QUOTE-UNQUOTE, ADOPTING 00:41:12.133 --> 00:41:13.700 AN APEX RULE WHICH IS SORT OF, 00:41:13.700 --> 00:41:15.533 YOU KNOW, KIND OF -- IT WOULD 00:41:15.533 --> 00:41:16.767 BE, ESSENTIALLY, A NEW RULE. 00:41:16.767 --> 00:41:19.533 OR IF WE'RE REALLY JUST, IF WE 00:41:19.533 --> 00:41:20.833 REALLY WERE JUST GOING TO SAY 00:41:20.833 --> 00:41:23.533 THAT, YOU KNOW, GIVEN THIS 00:41:23.533 --> 00:41:26.600 DECLARATION AND WHAT THE 00:41:26.600 --> 00:41:28.000 CORPORATE REP IN THIS CASE SAID, 00:41:28.000 --> 00:41:30.133 YOU KNOW, THAT THIS PARTICULAR 00:41:30.133 --> 00:41:31.933 PERSON'S DEPOSITION, YOU KNOW, 00:41:31.933 --> 00:41:33.767 THERE WASN'T ENOUGH THERE TO 00:41:33.767 --> 00:41:35.000 CONCLUDE THAT IT WOULD 00:41:35.000 --> 00:41:37.967 REASONABLY LEAD TO DISCOVERY, I 00:41:37.967 --> 00:41:39.567 MEAN, THAT WOULD BE -- I MEAN, 00:41:39.567 --> 00:41:40.600 WOULD YOU AGREE THAT THAT WOULD 00:41:40.600 --> 00:41:42.867 BE KIND OF AN ODD THING FOR THIS 00:41:42.867 --> 00:41:44.767 COURT TO BE GETTING, TO BE 00:41:44.767 --> 00:41:46.900 SOCIALLY ISSUING A MICRO RULING 00:41:46.900 --> 00:41:48.067 ON SOMETHING LIKE THAT? 00:41:48.067 --> 00:41:50.633 >> IT IS UNUSUAL BUT NOT 00:41:50.633 --> 00:41:51.933 UNPRECEDENTED, AND I SUBMIT THAT 00:41:51.933 --> 00:41:53.100 THAT'S EXACTLY WHAT THIS COURT 00:41:53.100 --> 00:41:55.433 DID IN ALLSTATE V. LANGSTON. 00:41:55.433 --> 00:41:57.233 IT'S KIND OF WHAT IT DID IN EL 00:41:57.233 --> 00:42:00.367 EL KIN V. PSYCHEN WHERE IT 00:42:00.367 --> 00:42:02.900 ADOPTED THE THIRD DCA'S 00:42:02.900 --> 00:42:04.733 EIGHT-POINT PLAN, SO TO SPEAK, 00:42:04.733 --> 00:42:06.267 FOR GETTING FINANCIAL AND ORE 00:42:06.267 --> 00:42:07.467 DISCOVERY FROM EXPERTS IN THE 00:42:07.467 --> 00:42:07.667 CASE. 00:42:07.667 --> 00:42:09.067 THAT WAS A CASE OF FIRST 00:42:09.067 --> 00:42:09.900 IMPRESSION HERE. 00:42:09.900 --> 00:42:13.967 BUT I THINK MORE BROADLY THE 00:42:13.967 --> 00:42:15.667 COURT SHOULD CLARIFY, IS THERE 00:42:15.667 --> 00:42:17.700 AN APEX DOCK RUN THE IN FLORIDA 00:42:17.700 --> 00:42:19.167 BECAUSE COURTS ARE APPLYING IT 00:42:19.167 --> 00:42:20.100 TO PUBLIC OFFICIALS. 00:42:20.100 --> 00:42:22.933 AND IF THERE'S AN APEX DOCTRINE, 00:42:22.933 --> 00:42:25.367 SHOULD IT APPLY TO BOTH PUBLIC 00:42:25.367 --> 00:42:26.167 AND PRIVATE OFFICIALS? 00:42:26.167 --> 00:42:27.700 I DON'T THINK THE COURT 00:42:27.700 --> 00:42:27.967 SHOULD -- 00:42:27.967 --> 00:42:31.500 >> BUT YOU, YOU CONCEDE, 00:42:31.500 --> 00:42:34.167 COUNSEL, THAT IF WE MADE THAT 00:42:34.167 --> 00:42:36.600 DECLARATION, IT WILL BE THE 00:42:36.600 --> 00:42:38.500 EXISTENCE OF AN APEX DOCTRINE 00:42:38.500 --> 00:42:41.200 THAT APPLIES IN THE CORPORATE 00:42:41.200 --> 00:42:41.467 CONTEXT. 00:42:41.467 --> 00:42:43.567 THAT WILL BE NEWLY DISCOVERED. 00:42:43.567 --> 00:42:44.867 IT'D BE MANAGER THAT WE HAVE 00:42:44.867 --> 00:42:47.600 JUST DISCOVERED IN THIS CASE. 00:42:47.600 --> 00:42:50.233 >> WELL, I DON'T THINK IT'S IN A 00:42:50.233 --> 00:42:51.133 SENSE NEWLY DISCOVERED. 00:42:51.133 --> 00:42:53.267 I UNDERSTAND WHAT YOUR POINT IS, 00:42:53.267 --> 00:42:55.767 BUT IT'S THE APPLICATION OF THE 00:42:55.767 --> 00:43:00.933 RULES OF PROCEDURE, THE RULE 00:43:00.933 --> 00:43:04.400 1.280B1 AND RULE 1.280C WHICH 00:43:04.400 --> 00:43:07.467 ALLOWS COURTS TO ISSUE ORDERS TO 00:43:07.467 --> 00:43:10.667 PREVENT ANNOYANCE AND OPPRESSION 00:43:10.667 --> 00:43:12.967 OF UNDUE BURDEN OR EXPENSE, TWO 00:43:12.967 --> 00:43:14.733 PARTICULAR FACTS THAT MAY ARISE 00:43:14.733 --> 00:43:16.000 AND STANDARDIZE THE PROCESS LIKE 00:43:16.000 --> 00:43:21.267 THIS COURT DID IN PSYCHEN V. EL 00:43:21.267 --> 00:43:21.833 ELKIN. 00:43:21.833 --> 00:43:23.000 SO I DON'T THINK IT'S NEW, BUT 00:43:23.000 --> 00:43:25.233 TO THE EXTENT IT IS, IT'S 00:43:25.233 --> 00:43:27.167 CERTAINLY NOT UNPRECEDENTED THAT 00:43:27.167 --> 00:43:30.800 THIS COURT PRESENTS NEW 00:43:30.800 --> 00:43:31.067 STANDARDS. 00:43:31.067 --> 00:43:33.100 AS WE SAID IN OUR BRIEF OF WITH 00:43:33.100 --> 00:43:37.300 TUCKER V. IS -- 00:43:37.300 --> 00:43:37.633 [INAUDIBLE] 00:43:37.633 --> 00:43:39.867 >> WELL, IT JUST SEEMS TO ME, 00:43:39.867 --> 00:43:42.533 AND I'LL SAY THIS, IT'S KIND OF 00:43:42.533 --> 00:43:45.167 AN ODD THING TO HAVE A NEWLY 00:43:45.167 --> 00:43:45.833 DISCOVERED, CLEARLY ESTABLISHED 00:43:45.833 --> 00:43:47.700 PRINCIPLE OF LAW. 00:43:47.700 --> 00:43:49.400 >> WELL, THE CLEARLY ESTABLISHED 00:43:49.400 --> 00:43:53.300 PRINCIPLE, YOUR HONOR, THE RULE 00:43:53.300 --> 00:43:56.133 ITSELF THAT PROHIBITS DISCOVERY 00:43:56.133 --> 00:43:58.500 THAT IS NOT REASONABLY LIKELY TO 00:43:58.500 --> 00:44:00.467 LEAD TO DISCOVERY OF ADMISSIBLE 00:44:00.467 --> 00:44:00.733 EVIDENCE. 00:44:00.733 --> 00:44:04.133 >> I AAPOLOGIZE -- APOLOGIZE FOR 00:44:04.133 --> 00:44:06.900 TALKING TO YOU HERE ONCE YOUR 00:44:06.900 --> 00:44:07.800 REBUTTAL TIME IS OVER. 00:44:07.800 --> 00:44:09.767 IF YOU COULD SUM UP IN ABOUT 30 00:44:09.767 --> 00:44:10.000 SECONDS. 00:44:10.000 --> 00:44:11.233 >> CERTAINLY, YOUR HONOR. 00:44:11.233 --> 00:44:12.933 THANK YOU FOR THE INDULGENCE. 00:44:12.933 --> 00:44:14.333 WE SUBMIT THAT THE COURT, 00:44:14.333 --> 00:44:16.033 WHETHER OR NOT IT ADOPTS THE 00:44:16.033 --> 00:44:18.733 APEX DOCTRINE, SHOULD QUASH THE 00:44:18.733 --> 00:44:20.733 DECISION OF THE DISTRICT COURT 00:44:20.733 --> 00:44:23.267 OF APPEAL AND HOLD THAT EITHER 00:44:23.267 --> 00:44:24.667 UNDER CIRCUMSTANCES OF THIS 00:44:24.667 --> 00:44:27.700 PARTICULAR CASE OR IN OTHER 00:44:27.700 --> 00:44:29.800 CIRCUMSTANCES THAT THE 00:44:29.800 --> 00:44:31.700 DEPOSITION OR EXAMINATION OF AN 00:44:31.700 --> 00:44:34.400 APEX OFFICIAL SHOULD NOT BE 00:44:34.400 --> 00:44:36.333 TAKEN UNTIL THE PARTY CAN SHOW 00:44:36.333 --> 00:44:38.933 THAT ONLY THAT OFFICIAL HAS 00:44:38.933 --> 00:44:40.033 UNIQUE KNOWLEDGE THAT IS 00:44:40.033 --> 00:44:41.367 UNAVAILABLE FROM OTHER 00:44:41.367 --> 00:44:41.667 OFFICIALS. 00:44:41.667 --> 00:44:43.700 THANK YOU VERY MUCH FOR YOUR 00:44:43.700 --> 00:44:44.133 TIME. 00:44:44.133 --> 00:44:45.700 >> ALL RIGHT. 00:44:45.700 --> 00:44:47.467 WE THANK YOU BOTH FOR YOUR 00:44:47.467 --> 00:44:49.900 ARGUMENTS IN THIS CASE TODAY. 00:44:49.900 --> 00:44:51.600 AND BEFORE THE COURT MOVES ON TO 00:44:51.600 --> 00:44:54.267 THE REST OF OUR DOCKET, WE WILL 00:44:54.267 --> 00:44:57.000 NOW TAKE A RECESS OF ABOUT TEN 00:44:57.000 --> 00:44:59.267 MINUTES.