In General Motors, LLC v. Buchanan, Case No. S21G1147, 2022 WL 1750716, —S.E.2d — (Ga. Sup. Ct. June 1, 2022), the Georgia Supreme Court provided guidance on when a party’s high level corporate executive can be deposed. While the Court declined to adopt any sort of special test for when high level executives can be deposed, the Court held that a trial court must consider the traditional “apex factors” if the corporation seeks a protective order to stop the deposition on a case-by-case basis: the high rank of the executive, whether the executive has unique personal knowledge of the relevant facts, and whether the information is available from other sources.
Buchanan involved a wrongful death claim where the plaintiff alleged a vehicle had a faulty steering wheel angle sensor. The plaintiff sought to depose the CEO of General Motors (“GM”), who had testified before Congress about the company’s “Speak Up for Safety” program. GM filed a motion for protective order supported by an affidavit of the CEO, which indicated that the CEO did not have any knowledge concerning the sensor at issue or any “Speak Up for Safety” investigation into the sensor. Id. at * 2. The trial court denied the motion for protective order, declining to adopt the “apex doctrine” as urged by GM. The Court of Appeals affirmed. Id. at *3. The Georgia Supreme Court granted certiorari to consider what factors should be considered when a party seeks to depose a high-level executive, and what party bears the burden of proof.
As explained by the Georgia Supreme Court, the apex doctrine protects high-level executives from depositions, particularly in circumstances where the executive does not have unique personal knowledge concerning relevant facts and if the facts may be obtained through other means. Id. at *4-6 (collecting cases). Some federal courts held the party seeking to depose a high-level executive bears the burden to show the deposition is appropriate, and others held that a high-level executive cannot be deposed unless they have unique or superior knowledge of the relevant facts. Id. at *6.
Under the Federal Rules of Civil Procedure, discovery sought must be relevant and “proportional” to needs of the case. Fed. R. Civ. P. 26(b)(1). However, the Georgia Civil Practice Act does not have such a “proportionality” limitation. O.C.G.A. § 9-11-26(b)(1). Because of the broader scope of discovery under Georgia law, the Buchanan court declined to adopt any burden shifting framework for depositions of high level-executives. In other words, if a party seeks to depose a high-level executive, the corporation must set forth specific facts which show “good cause” for issuance of a protective order. Id. (citing O.C.G.A.§ 9-11-26(c)).
Further, the Court indicated that there was need to apply any sort of special test if a party seeks to depose a high-level corporate executive, and therefore did not adopt any variation of the apex doctrine. Id. at * 7. However, the Court did hold that a trial court must consider apex factors if they are raised. Id at * 8. In other words, if a corporation seeks a protective order to prevent the deposition of a high-level executive and argues the deposition is unduly burdensome based on the high rank of the executive, executive’s lack of unique personal knowledge, and the availability of obtaining information from alternate sources, the trial court must consider those factors and determine whether a protective order should issue.
The Court made it easier to obtain protective orders by overruling a prior decision which indicated a protective order should not issue unless there is “substantial evidence that bad faith or harassment” was the motivation for seeking the deposition. Id. at * 9. A protective order can issue even if the requested deposition is relevant. Id. at * 10. Because the trial court’s order declined to adopt the apex doctrine but did not address whether GM’s arguments constituted “good cause” for entry of a protective order, the Court remanded the case back for further proceedings.
In sum, while the Buchanan court did not adopt the apex doctrine, it did hold that Georgia courts must consider the traditional apex factors and indicated that those factors could warrant a protective order and overruled a prior decision which made it more difficult to obtain a protective order.