The Supreme Court of Georgia issued a decision on whether or not the Apex Doctrine is adopted in Georgia when a party seeks the deposition of a high-ranking official in a company. The Supreme Court ultimately stated:
a court considering whether factors commonly associated with the apex doctrine should limit or bar a plaintiff from deposing a high-ranking executive need not interpret the factors as a firmly established basis for an order prohibiting an executive's deposition. It is possible for a court to act within its discretion to conclude, based on the facts of the case before it, that a protective order prohibiting the deposition of an executive need not be issued even where the executive is high-ranking, has no unique personal knowledge, and the discoverable information is available through other means. Likewise, the absence of factors commonly associated with the apex doctrine does not mean that a protective order for a high-ranking official's deposition cannot be granted if other factors presented show good cause for such a conclusion.
General Motors, LLC v. Buchanan, S21G1147, 2022 WL 1750716 at *9 (June 1, 2022). Ultimately, the Court's interpretation rests on the language of Rule 26 that the standard for a protective order is "whether the deposition of a particular individual would cause 'annoyance, embarrassment, oppression, or undue burden or expense'". Id. at *8 citing O.C.G.A. § 9-11-26(c).
1. DISCOVERY IN GEORGIA
An understanding of the general scope of discovery in Georgia is important to the decision of the Court in the General Motors case.
The scope of discovery under the Civil Practice Act is broad. See Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 210 (2), 538 S.E.2d 441 (2000).
Parties 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.
O.C.G.A. § 9-11-26(b)(1). Trial courts “should and ordinarily do interpret ‘relevant’ very broadly” so as to “remove the potential for secrecy” and to “reduce the element of surprise at trial.” Bowden v. The Medical Center, Inc., 297 Ga. 285, 291-292 (2) (a), 773 S.E.2d 692 (2015). Moreover, “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. at 290 (2) (a), 773 S.E.2d 692.
2. PROTECTIVE ORDERS
However, trial courts may limit discovery in multiple ways, including for “good cause shown” under O.C.G.A. § 9-11-26 (c). More specifically:
Upon 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 a 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[.]
O.C.G.A. § 9-11-26(c). The trial court has “wide discretion in the entering of orders. . . preventing the. . . taking of depositions [under O.C.G.A. § 9-11-26 (c).]” Hampton Island Founders, LLC v. Liberty Capital, LLC, 283 Ga. 289, 296 (4), 658 S.E.2d 619 (2008).
In exercising its discretion under O.C.G.A. § 9-11-26 (c), the court can order, among other things, that discovery not be had, allow it “only on specified terms and conditions, including a designation of the time or place,” change the method of discovery, seal a deposition, restrict disclosure of trade secrets and other sensitive commercial information, or require that the discovery be filed under seal. See O.C.G.A. § 9-11-26 (c)(1) - (8). The movant bears the burden of showing her entitlement to a protective order under this rule. See O.C.G.A. § 9-11-26(c). To meet this burden, the movant must establish good cause for the issuance of a protective order. See O.C.G.A. § 9-11-26(c); Hill, Kertscher & Wharton, LLP v. Moody, 308 Ga. 74, 80 (2), 839 S.E.2d 535 (2020).
3. THE APEX DOCTRINE
The Apex Doctrine "provides courts with a framework for determining whether good cause exists to forbid or limit the deposition of a high-ranking corporate executive who lacks personal, unique knowledge of facts relevant to the litigation." General Motors, LLC, 2022 WL 1750716 at *1.
In the corporate context, the apex doctrine generally is intended to apply only to “high-level” executives. Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 126 (I) (A) (D. Md. 2009). On the proverbial sliding scale, the closer that a proposed witness is to the apex of some particular peak in the corporate mountain range, and the less directly relevant that person is to the evidence proffered in support of his deposition, the more appropriate the protections of the apex doctrine become. Apple Inc. v. Samsung Elec. Co., Ltd., 282 F.R.D. 259, 263 (III) (N.D. Cal. 2012).
The rationale for barring such depositions is that high level executives are vulnerable to numerous, repetitive, harassing, and abusive depositions, and therefore need some measure of protection from the courts. In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., No. 4:08-MD-2004(CDL), 2009 WL 4730321, *1 (M.D. Ga. Dec. 1, 2009).
Other courts have also determined that, in order for the deposition of a high-ranking executive to move forward, that person must have some knowledge of facts that are properly discoverable – that is, facts that are relevant to the litigation. See, e.g., Simms v. Nat. Football League, No. 3:11-CV-0248-M-BK, 2013 WL 9792709, at *3 (N.D. Tex. July 10, 2013). And, as applied by a number of federal district courts, this knowledge must be personal and unique or superior to that of other persons from the organization who might be deposed in the litigation. See, e.g., Thomas v. Intl. Bus. Machines, 48 F.3d 478, 483 (II) (A) (10th Cir. 1995). Further, courts should consider whether the high-ranking executive's “unique or superior knowledge” is available through other means. See Cuyler v. Kroger Co., No.1:14-CV-1287-WBH-AJB, 2014 WL 12547267, *6 (B) (N.D. Ga. Oct. 3, 2014). Exhaustion of less intrusive means of discovery is not necessarily “an absolute requirement; instead, exhaustion of other discovery methods is an important, but not dispositive, consideration for a court to take into account in deciding how to exercise its discretion.” Reilly v. Chipotle Mexican Grill, Inc., No. 15-Civ-23425-COOKE/TORRES, 2016 WL 10644064, *7 (II) (B) (2) (c) (S.D. Fla. Sept. 26, 2016).
When it comes to determining who bears the burden to prove or defeat a protective order under the apex doctrine, federal courts have adopted varying approaches. In some courts, application of the doctrine results in shifting the burden of proof to the party requesting the discovery. See, e.g., Degenhart v. Arthur State Bank, No. CV411-041, 2011 WL 3651312, *1 (S.D. Ga. Aug. 8, 2011) (“As the party seeking to compel the deposition of a high-ranking executive, the deposing party has the burden of showing that the target's deposition is necessary.”). In other federal courts, however, the party seeking relief from discovery bears the burden of establishing that good cause exists for a protective order through application of the apex factors. See, e.g., Dyson, Inc. v. Sharkninja Operating LLC, No. 1:14-cv-0779, 2016 WL 1613489, *1 (II) (A) (N.D. Ill. Apr. 22, 2016). Finally, other federal courts have developed a hybrid, burden-shifting version of the doctrine. See, e.g., Naylor Farms, Inc. v. Anadarko OGC Co., No. 11-cv-01528-REB-KLM, 2011 WL 2535067, at *2 (D. Colo. June 27, 2011) (party seeking to depose an executive “bears an initial burden of making some showing that the executive has ‘unique personal knowledge’ of some relevant issues,” and then “the burden shifts to the executive to demonstrate by evidence that he in fact has no personal knowledge or that there exists one of the other three circumstances under which requiring him to sit for a deposition is inappropriate,” though “the ultimate burden of persuasion lies with the executive invoking the apex doctrine”).
4. THE COURT'S ANALYSIS
The Supreme Court rejected General Motors argument that federal cases interpreting Federal Rule 26 and applying the Apex Doctrine should be applied by Georgia Courts. The Court stated, "the text of Federal Rule 26 shows that the scope of discovery is narrower than that contemplated by O.C.G.A. § 9-11-26 (b). Compare Fed. R. Civ. P. 26 (b) (1) (providing that parties may obtain discovery on matters that are “relevant to any party's claim ... and proportional to the needs of the case, considering [a number of factors, including] whether the burden or expense of the proposed discovery outweighs its likely benefit”) with O.C.G.A. § 9-11-26 (b) (providing that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action”). General Motors, LLC, 2022 WL 1750716 at *7. As such, any federal court ruling must comport with Georgia's text of the analogous rule.
Analyzing 9-11-26, "to justify a protective order, one or more of the statutorily enumerated harms must be established through a specific demonstration of fact, as opposed to stereotyped and conclusory statements about, for example, the position in the corporate hierarchy held by the prospective deponent or the size and complexity of the organization." Id. at *7 quoting Caldwell v. Church, 341 Ga. App. 852, 861 (4), 802 S.E.2d 835 (2017). Based on this analysis "[a]dopting the apex doctrine would necessarily restrict the trial court's discretion by placing a thumb on the scale so as to suggest a special rule for high-ranking executives of large companies that exists nowhere in the Civil Practice Act, and would contravene the principle of broadly available discovery under Georgia law." Id.
The Court ultimately saw "no need to employ a special test or framework different than that which generally applies to any claim of good cause made in support of a motion for protective order under O.C.G.A. § 9-11-26 (c)." Id.
As for the burden applied in Georgia, the Court rejected General Motor's interpretation, which "effectively builds in a presumption of good cause in favor of protection from discovery once apex doctrine factors are established. And, as noted above, the text of O.C.G.A. § 9-11-26 (c) places the burden on the party seeking protection from discovery to establish good cause. GM's formulation would impermissibly shift that burden to the party seeking discovery." Id. at *8.
In making determinations for or against a protective order, "courts must balance the interests of the parties in securing permissible discovery with the clear directive of O.C.G.A. § 9-11-26 (c) to protect against 'annoyance, embarrassment, oppression, or undue burden or expense,' as this determination is directed to be made in the interest of “justice,” which must include consideration of all concerned parties. Id. at *9 (internal citations omitted).