Much of the law is about balancing interests, and pretrial discovery is no exception.
On the one hand, parties in litigation are entitled to discovery of any unprivileged information that could lead to admissible evidence at trial. Affording the parties wide latitude in discovery gives everyone the fullest opportunity to vindicate their legal rights. Extensive discovery prevents surprises at trial as well.
On the other hand, pretrial discovery may not be conducted in a manner that subjects the opposing party to annoyance, embarrassment, oppression, or undue burden or expense. This principle ensures that the enormous power of the law is directed toward proper purposes.
One sentinel patrolling the line between these two laudable policy objectives is the “apex doctrine,” a judicially fashioned rule that protects high-level corporate executives from being deposed or hauled into court whenever their company is sued. The apex doctrine, when applied, tends to restrict the depositions of high-level executives to cases in which they have personal knowledge of the facts or where their testimony is uniquely able to shed light on a contested issue.
In other words, the plaintiff should not expect to depose Jeff Bezos in a lawsuit over an Amazon purchase gone wrong.
Georgia Rejects Apex Doctrine
A wrongful death case involving alleged safety defects in a Chevrolet Trailblazer motor vehicle gave Georgia’s courts the opportunity to consider the apex doctrine in General Motors LLC v. Buchanan, No. S21G1147 (Ga. June 1, 2022).
The plaintiff’s attorney sought the deposition of General Motors CEO Mary Barra, for the alleged purpose of obtaining Barra’s testimony about an internal investigation that General Motors had conducted into safety issues involving the Trailblazer and other General Motors vehicles. Barra had made public statements about General Motors’ commitment to vehicle safety and she had testified before Congress on vehicle safety issues. General Motors sought a protective order to prevent the deposition, urging the trial court to adopt the apex doctrine. Barra, they argued, was not personally involved in the design, development, or manufacture of the plaintiff’s motor vehicle – thus, she had no relevant evidence to discover.
The trial court declined to issue a protective order blocking Barra’s deposition, rejecting along the way General Motors’ invitation to adopt the apex doctrine. The trial court ordered Barra to sit for a three-hour deposition in Detroit, where General Motors’ headquarters is located. When the case reached the Georgia Supreme Court, that body rejected the apex doctrine as well, and for largely the same reasons. The apex doctrine, they reasoned, gave too much deference to corporations whose high-level executives may possess discoverable information under Georgia law.
Apex Doctrine: A Thumb on the Scales of Justice
The apex rule has different formulations in different jurisdictions. However, in a nutshell, the rule goes something like this. A trial court should consider whether good cause exists for granting a protective order against the deposition of a high-ranking corporate official by weighing the following four factors:
- Whether the deponent is a sufficiently high-ranking executive considering her role and responsibilities within the organization;
- Whether the facts sought to be discovered from the deposition are discoverable;
- Whether the executive has “unique personal knowledge” of the relevant facts; and
- Whether there are alternative means, including written answers via interrogatories or depositions of other officials within the same company.
The purpose of the apex doctrine is to prevent corporate executives from being subjected to “numerous, repetitive, harassing and abusive depositions” in lawsuits in which the executive has no unique knowledge of the facts sought to be discovered. In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., No. 4:08-MD-2004 (CDL) (M.D. Ga., Dec. 1, 2009).
Here the Georgia Supreme Court considered many similar formulations of the apex doctrine in the federal system in the many state courts that have adopted it, and it decided to reject them all. It ruled that Georgia’s existing framework for resolving protective orders was sufficient to resolve cases involving proposed depositions of corporate executives. And it explicitly rejected the apex doctrine’s shifting of the burden of persuasion to the party seeking the deposition once the corporate defendant asserted that the proposed deponent was, in fact, a high-level executive.
Application of Georgia’s version of Rule 26, OCGA Sec. 9-11-26(c), should be sufficient to resolve requests for protective orders involving corporate executives, the court ruled. Under that provision, the court said, “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.”
Even though it had rejected the apex doctrine, the state supreme court sent the case back down to the trial court for reconsideration of its earlier decision ordering Barra to sit for a deposition. The justices said that the trial court had not adequately considered all of General Motors’ arguments in support of the protective order it sought for Barra. The trial court also appeared to believe that it was necessary for General Motors to show substantial evidence of bad faith or harassment on the part of the party seeking the deposition in order to obtain a protective order. To the extent that Georgia cases suggest this requirement, those cases were overruled by the high court here.
Takeaway: No Special Discovery Protections for Corporate Defendants
Obviously, the main message of the Buchanan ruling is that Georgia courts will be less likely than courts in the federal system or other states to block depositions of high-level corporate executives. Buchanan also sends a message to litigators in Georgia’s courts that they can cast a wide net during pretrial discovery, and that objections to that discovery must be specific and particularized – not broad generalizations about the burdens of complying with discovery demands.
Finally, it’s noteworthy that the justices resisted General Motors’ policy-based arguments in support of adopting the apex doctrine. In Georgia, pretrial discovery rules are written by the state legislature and codified in the Civil Practice Act. In Buchanan, the state supreme court said its ruling was based on the text of the pretrial discovery rules as written by the state legislature; if public policy considerations call for creating protections for corporate defendants, those arguments should be addressed to the state legislature, the court said.
The Buchanan case is the second important court ruling addressing depositions that involve corporate defendants in recent weeks. In April, the North Carolina Court of Appeals declared that a corporate defendant was denied constitutional due process when the trial court, citing pandemic-related health concerns, forbade its attorneys from being physically present with the corporation’s witnesses during remote depositions.