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By: Michael Freed
The Supreme Court of Georgia granted certiorari in General Motors, LLC v. Buchanan on the question of “[w]hat factors should be considered by a trial court in ruling on a motion for a protective order under OCGA § 9-11-26 (c) that seeks to prevent the deposition of a high-ranking officer and what is the appropriate burden of proof as to those factors?” This issues often arises when plaintiffs notice the depositions of high-ranking corporate executives who respond by seeking a protective order asserting that they have no personal knowledge of relevant facts or the that the information plaintiffs seek can be obtained through less intrusive means.
The Court issued its opinion on this important issue on June 1, 2022. The Court held that trial courts faced with motions for protective orders on these grounds “should consider 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 demonstrate good cause for a protective order under OCGA § 9-11-26 (c).” But, the Court noted, “good cause” is not “presumptively or conclusively established in each instance that a movant has demonstrated that an executive is ‘sufficiently high-ranking’ and lacks unique personal knowledge of discoverable information not available through other means.” Instead, the party seeking the protective retains the burden of persuading the trial court that “good cause” exists.
The Court’s holding provides some guidance to litigants in Georgia on what has been a murky area of Georgia law. The Court stopped short, however, of adopting the “apex doctrine,” which, at least as adopted by some other jurisdictions, would create a presumption of “good cause” or impose a burden-shifting framework. Instead, it is up to trial courts to use their discretion to determine whether a party seeking a protective order has established “good cause” under the standard articulated in OCGA § 9-11-26 (c). As a result, the Court recognized that “[i]t 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.” Thus, some uncertainty remains over how this holding will be applied by Georgia trial courts.