General Motors LLC v. Buchanan
Public Justice recently filed an amicus brief in General Motors LLC v. Buchanan before the Georgia Supreme Court on the question of whether the court should adopt an “apex doctrine,” which places a heightened burden on a party who seeks to depose any high-ranking corporate officer to show that the testimony sought will be “unique” and that the discovering party has “exhausted” all other available sources. We argue that the apex doctrine is neither warranted by Georgia law or by the facts presented to the court about the need for such a restriction on discovery.
The husband of Marie Buchanan sued General Motors (“GM”), alleging that a defect in the electronic stability control system of her 2007 Chevy Trailblazer caused it to crash, resulting in her death. Several years into the case, Buchanan sought to take the deposition of Mary Barra, the CEO of GM, pointing to her statements that she took responsibility for overhauling GM’s response to vehicle defect issues, and that she promised to personally review all death inquiries.
GM moved for a protective order, submitting an affidavit from Ms. Barra that she did not know anything about the sensor defect, and arguing that a request to depose her was harassing, oppressive, and constituted an undue burden under Georgia’s protective order statute, OCGA § 9-11-26(c). It also urged the court to adopt the “apex doctrine,” which would require the discovering party to establish that the corporate deponent’s testimony was unique, that it could be obtained from no other source. The trial court rejected GM’s demand to completely block the deposition but limited it to three hours. The Court of Appeals affirmed.
Our amicus brief argues that adopting the “apex doctrine” would essentially rewrite § 9-11-26, passed by the legislature, which provides for broad discovery, even broader than the Federal Rules provide, and which gives the trial court discretion to issue protective orders based on all the circumstances of the case. In addition, it would impose a burden of proof on the discovering party that does not exist in the rule and is likely impossible to meet in practice. The effect of the apex doctrine would be to privilege large corporations above all other litigants, allowing them to employ delaying tactics to frustrate legitimate discovery of hundreds and even thousands of corporate officers. General Motors did not make a credible case to the court that such a radical overhaul of Georgia’s discovery rules was necessary or appropriate.