Georgia Opinion Discusses Standards for Deposing High-Ranking Corporate Executives (So Does Indiana!)

Georgia’s Supreme Court has weighed in the so-called “apex doctrine,” which provides courts with a framework for determining whether good cause exists to forbid or limit the
deposition of a high-ranking corporate executive or high-level government official who lacks personal, unique knowledge of facts relevant to the litigation.  The court’s 39-page opinion discusses the factors Georgia courts should consider in such cases.

General Motors, LLC v. Buchanan is a wrongful death, products case involving a claim of a defect in a GM vehicle’s steering wheel angle sensor.  The plaintiffs sought to depose the current CEO of the company.  The company objected, and urged Georgia’s courts to adopt the apex doctrine. which the court generally described as include the following factors:

a trial court should generally consider when determining whether good cause exists for granting a protective order against a deposition of a high-ranking corporate executive: (1) whether the deponent is a sufficiently high-ranking executive considering her role and responsibilities in the organization; (2) the
extent to which the facts sought to be discovered in the deposition are properly discoverable; (3) whether the executive has unique personal knowledge of relevant facts; and (4) whether there are alternative means, including written discovery or depositions of other witnesses (including a deposition of an organizational representative pursuant to OCGA § 9-11-30 (b) (6)) by which the
same facts could be discovered.

After an extensive review of the caselaw from the federal courts and many state courts. the Georgia High Court said.

Adopting 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. See Tenet Healthcare Corp., 273 Ga. at 210; OCGA § 9-11-26 (b) (1).

The Court said

we see 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 OCGA § 9-11-26 (c).

Accordingly, when factors commonly associated with the apex doctrine are raised and adequately shown by a party seeking a protective order, a court should consider those factors – as well as any other factors raised – and decisions applying those factors in determining whether the party seeking relief has shown good cause for a protective order under OCGA § 9-11-26 (c). That is, a court must consider whether the deposition of a particular individual would cause “annoyance, embarrassment, oppression, or undue burden or expense” based on, for example, that person’s scheduling demands or responsibilities and lack of relevant or unique personal knowledge that is not available from other sources. OCGA § 9-11-26 (c).

Such consideration is not solely a product of the relative organizational “importance” of a prospective deponent. Rather, courts should consider on a case-by-case basis whether the evidence demonstrates good cause such as an undue burden or expense. Highranking corporate executives are not immune from discovery and are not automatically given special treatment excusing them from being deposed simply by virtue of the positions they hold or the size of the organizations they lead.  [Footnote omitted.]

Anyone facing the issue of whether a deposition of a high-ranking corporate executive or high-level government official who lacks personal, unique knowledge of facts relevant to the litigation can be taken would be well-advised to review this opinion.


UPDATE:  National Collegiate Athletic Association v. Finnerty, No. 21S-CT-409 (Indiana July 19, 2022) (court rejects the “apex doctrine” but establishes a framework that harmonizes its underlying principles with Indiana’s applicable trial rules to assist courts in determining whether good cause exists to limit or prohibit the deposition of a top-level official in a large organization. Indiana’s civil procedures rules are similar to Tennessee’s.)

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