In a ruling that will surely have ramifications for litigants in the State of Georgia, the Court of Appeals declined to adopt the Apex Doctrine and affirmed a trial court's refusal to grant a protective order to defendant General Motors seeking to have its CEO protected from giving a deposition in a wrongful death/products liability case. See General Motors, LLC v. Buchanen, A21A0043, 2021 WL 1807308 (Ga. Ct. App. May 6, 2021).
Under the apex doctrine, an individual objecting to a deposition must first demonstrate he is sufficiently high-ranking to invoke the deposition privilege. Upon this showing, the court then considers whether there are “extraordinary circumstances” that justify deposing the high-ranking officials, based on (1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case; and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods.
Givens v. Newsom, 2021 U.S. Dist. LEXIS 3135, *12 (B), 2021 WL 65878 (E.D. Cal. 2021). The Georgia Court of Appeals stated that while some states have adopted the doctrine, many others have rejected it. General Motors at *4. Namely, no Georgia Court has adopted the doctrine. Id. Further, the Court stated that "the apex doctrine is inconsistent with Georgia's discovery provisions that require a liberal construction in favor of supplying a party with facts." Id. citing O.C.G.A. § 9-11-26(c).
In line with this liberal construction of Rule 26, the Court of Appeals affirmed the denial of the protective order and held that the CEO of General Motors would have to be deposed in this wrongful death/products liability action.
Pursuant to OCGA § 9-11-26 (b) (1), parties to a lawsuit may “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party[.]”
However, OCGA § 9-11-26 (c) provides in relevant part that, "[u]pon motion by a party or by the person from whom discovery is sought and for good cause shown, the court in which the action is pending or, alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... (1) That the discovery not be had; [or] (2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place[.]"
General Motors argued that the trial court's denial of the protective order violated the prohibitions against abusive discovery practices because the court failed to acknowledge factors such as whether the CEO has unique knowledge of the issues in the case and whether that information could be obtained by other less-intrusive means. Id. at 3. The court rejected that proposition and stated there is no authority that a "trial court must consider these factors when resolving a motion for a protective order" (emphasis in original). Id.
Instead, the Court stated that the deposition testimony of the CEO is reasonably calculated to lead to the discovery of admissible evidence. Again, the Court discussed the broad concept of relevance to mean "anything that is or may become an issue in the litigation." Id. at *4 citing Ewing v. Ewing, 333 Ga. App. 766, 768 (1), 777 S.E.2d 56 (2015).
Additionally, relying on Osborne v. Bank of Delight, 173 Ga. App. 322, 324 (2), 326 S.E.2d 523 (1985) the Court stated the "potential for harassment or burden 'may be minimized by the imposition of lesser restrictions than the complete foreclosure of the requested discovery.'" Id. at *4. Therefore, by ordering that the deposition take place in Detroit, Michigan, where the CEO works, and limiting it to three hours, there was no potential for abuse or harassment. Id.
This Court of Appeals decision means that the contention that an individual seeking a protective order has no knowledge of the subject matter of the suit must yield to the overriding policy of liberally construing Georgia's discovery law.
Interestingly, Judge Dillard, in a concurrence, states that while he agrees with the majority opinion he does "sympathize with the concerns expressed by General Motors about the potential for litigants to use Georgia's forgiving discovery standards to unduly burden high ranking executives..." Id. at *5. However, he continues that the remedy can only come from the state legislature and "this issue is, to put it plainly, above our pay grade." Id.