On June 1, 2022, the Supreme Court of Georgia released its opinion in General Motors, LLC v. Buchanan, which sets forth an analytical framework for determining when a high-ranking officer of a corporation must sit for a deposition when their company is sued. In the opinion, the Court settled the question of whether Georgia law allows application of the “apex doctrine.” UPS, Coca-Cola, Kia, Delta Airlines, and the Georgia Chamber of Commerce appeared as amici in favor of the appellant in this case. Under OCGA § 9-11-26(c), if good cause is shown, the trial court may enter a protective order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense—such as prohibiting a deposition.
Broad Scope of Discovery
Under Georgia law, the scope of discovery is broad so as to minimize secrecy and the potential for surprise at trial. Trial courts have considerable discretion in shaping discovery, upon good cause shown. For example, protective orders may provide for discovery on certain terms and conditions, such as temporal limitations or designate a time and place for production or deposition; they may seal documents or depositions; or restrict the viewing or sharing of certain information pertinent to the case. The party seeking the protective order has the burden of showing good cause.
The “Apex Doctrine”
The “apex doctrine” is a set of factors to consider determine whether a high-level executive should have to sit for a deposition in a case against their company; in some jurisdictions, a balancing of these factors results in a rebuttable presumption against the deposition and the party seeking discovery must show why the deposition is necessary. In other jurisdictions, the party seeking the deposition must make an initial showing of the necessity of the deposition. Although it varies based on jurisdiction, the apex doctrine generally consists of four factors:
- whether the executive is sufficiently high-ranking in the context of the organization;
- whether the facts sought from the deposition are discoverable;
- whether the executive has unique personal knowledge; and
- whether there are alternative means to discover the information sought.
The apex doctrine was initially adopted to protect high-level executives who have no personal knowledge of the facts of a dispute from sitting through harassing or abusive depositions.
General Motors Opinion
In General Motors, the Supreme Court of Georgia directed trial courts to consider the apex doctrine factors—whether the executive’s high rank, the executive’s lack of unique personal knowledge of relevant facts, and the availability of information from other sources—when it determines whether a party has good cause to be shielded from discovery. The Court also held that OCGA § 9-11-26(c) requires that the burden to show good cause lies squarely on the party seeking a protective order. Critically, the Court preserved the discretion of the trial court to determine whether good cause for a protective order exists by explicitly declining to hold that good cause is established by a showing of these factors. In rejecting a rigid adoption of the apex doctrine, the Court encouraged a case-by-case analysis of whether good cause exists to protect a prospective deponent, specifically pointing out that “[h]igh-ranking 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.”
Prior to the issuance of this opinion, litigants lacked clear guidance regarding the state of the law in Georgia with respect to protective orders prohibiting these types of depositions. Factors such as the relevance of the apex doctrine in good-cause analysis and determining which party bears the burden of proof vary across jurisdictions. Accordingly, this guidance from the Supreme Court of Georgia is useful in understanding how to show good cause to protect against potentially harassing depositions in Georgia. The party seeking the protective order will bear the burden of proof, and the apex doctrine factors may be considered—but are not dispositive—in determining whether a protective order is appropriate under OCGA § 9-11-26(c) in light of the requested discovery or deposition.
The scope of permissible discovery requests varies from state to state. If you have questions regarding your business’s rights and obligations to comply with discovery requests in Georgia, please reach out to me.