GENERAL MOTORS, LLC v. BUCHANAN ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: June 1, 2022
S21G1147. GENERAL MOTORS, LLC v. BUCHANAN et al.
BETHEL, Justice.
In a civil lawsuit in Georgia, the discovery process allows
litigants to gather information about a case from other litigants and
third parties in an orderly and defined manner. Georgia, like most
states, also provides various mechanisms for litigants and third
parties to seek relief from the demands of discovery. One such
method is by moving for a protective order under OCGA § 9-11-26
(c), which provides that upon a showing of “good cause,” a trial court
“may make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense,” including limiting or otherwise prohibiting the
requested discovery.
In this wrongful death case in which the plaintiffs allege a
faulty vehicle component caused the deadly accident, the plaintiffs
have sought to depose the Chief Executive Officer of General Motors,
LLC, and General Motors has sought a protective order barring that
deposition. General Motors urges us to adopt the so-called “apex
doctrine,” or some variation thereof, as a means of determining
whether “good cause” exists for granting the protective order it
seeks. That doctrine provides courts with a framework for
determining whether good cause exists to forbid or limit the
deposition of a high-ranking corporate executive 1 who lacks
personal, unique knowledge of facts relevant to the litigation. We
granted General Motors’ petition for a writ of certiorari to consider
1 The apex doctrine can also apply to high-level government officials. See,
e.g., Sourgoutsis v. United States Capitol Police, 323 FRD 100, 114 (D.D.C.
2017) (“High-ranking government officials are generally not subject to
depositions unless they have some personal knowledge about the matter and
the party seeking the deposition makes a showing that the information cannot
be obtained elsewhere.” (Citation, punctuation, and emphasis omitted.));
K.C.R. v. County of Los Angeles, No. CV 13-3806 PSG (SSx), 2014 WL 3434257,
at *3-*5 (III) (B), (IV) (C.D. Cal. July 11, 2014) (same, and noting that the
undersheriff qualified as a high-ranking government official); Church of
Scientology of Boston v. I.R.S., 138 FRD 9, 12 (C) (D. Mass. 1990) (“In general,
heads of agencies and other top government executives are normally not
subject to depositions.”). But because this case involves a high-ranking
corporate executive, we use corporate terminology in our discussion of the
doctrine in this opinion.
2
“what 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 “the
appropriate burden of proof as to those factors.”
We conclude that, to the extent these factors are asserted by a
party seeking a protective order, a trial court 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). However, we decline to
hold that a trial court must find that good cause is 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.
Additionally, while motions for a protective order relying on
factors associated with the apex doctrine and any other basis argued
to constitute good cause are entitled to consideration by the trial
3
court, the burden of persuasion remains on the party seeking the
protective order. Applying that standard here, we conclude that the
trial court did not fully consider all of the reasons asserted by
General Motors as a basis for the protective order it sought in the
motion. Thus, we vacate the judgment of the Court of Appeals
affirming the trial court’s order and remand this case with direction
that the Court of Appeals vacate the trial court’s order and remand
the case for reconsideration consistent with this opinion.
1. Background
Robert Randall Buchanan’s wife, Glenda Marie Buchanan, was
killed in a single-vehicle accident in November 2014 while driving
her 2007 Chevrolet Trailblazer, which was manufactured by
General Motors Corporation, the predecessor to General Motors,
LLC (collectively “GM”). Buchanan brought a wrongful death action
against GM alleging that the fatal accident was caused by a defect
in the “steering wheel angle sensor,” a component of the car’s
electronic stability control system, and seeking compensatory and
punitive damages.
4
As part of that suit, Buchanan noticed the deposition of GM’s
current CEO, Mary Barra. Buchanan predicated his request on
previous statements Barra made in testimony before Congress and
other public statements she made about GM’s commitment to safety,
including the “Speak Up for Safety” program under which the
Trailblazer steering system angle sensor was investigated by GM.
At the conclusion of that investigation into the Trailblazer steering
system, GM decided that no action would be taken.
GM responded to Buchanan’s notice of deposition by moving for
a protective order under OCGA § 9-11-26 (c), arguing that good
cause existed to prohibit Barra’s deposition because she had not
been identified as a witness having relevant knowledge during
discovery, did not have “personal, unique, or superior knowledge of
information” relevant to the case, was not involved in the
investigation of the alleged defect at issue, and did not have any
knowledge relevant to the design of the steering wheel angle sensor
for the car at issue in Buchanan’s suit or the investigation into it.
GM also argued that any knowledge Barra might have could be
5
obtained through “other, less intrusive means.” In support of its
motion, GM cited cases primarily from federal courts applying the
framework for assessing good cause commonly known as the “apex
doctrine.”
GM supported its response with Barra’s affidavit, in which she
averred that she was “not personally involved with” and did not have
“direct personal knowledge regarding[] every aspect of each vehicle
that is or has been manufactured by GM.” More specifically, Barra
averred that she “was not involved in the design, development, or
manufacture” of either the steering wheel angle sensor or the 2006
to 2009 Trailblazer, did not conduct any Speak Up for Safety
program investigations, did not receive individual reports about
each investigation conducted under the program, was not involved
in any investigation of the steering wheel angle sensor, and did not
have “any direct, unique, specialized or superior knowledge about
the design, manufacture, and marketing” of the steering wheel angle
sensor, the 2007 Trailblazer, or any internal investigations or
results from investigations into the same.
6
In response to GM’s motion, Buchanan again pointed to Barra’s
congressional testimony in relation to a different alleged defect
across several vehicles in which she stated that she would work with
GM’s new vice president of global vehicle safety to quickly identify
and resolve product-safety issues and that she would review all
future death inquiries in GM vehicle crashes. Buchanan also pointed
to Barra’s public statements and general knowledge about GM’s
safety culture and efforts to eliminate safety issues. Buchanan
further argued that, to the extent Barra lacked knowledge about the
other subjects, her lack of knowledge itself was properly
discoverable by deposition.
The trial court denied GM’s motion for a protective order,
rejecting GM’s argument that the apex doctrine or any similar
framework was a suitable guide to assessing good cause and noting
Georgia’s liberal discovery rules under the Civil Practice Act.
However, although it plainly rejected the invitation to employ the
apex doctrine framework, the trial court’s order does not otherwise
reflect that it actually considered whether GM’s arguments as to
7
apex doctrine factors constituted good cause for granting the motion
for protective order. The court’s order further declared that “until
such time as the court is satisfied by substantial evidence that bad
faith or harassment motivates the discoveror’s action, the court
should not intervene to limit or prohibit the scope of pretrial
discovery” and determined that GM had not shown good cause for
the protective order it sought. The court further directed that the
deposition of Barra take place in Detroit, Michigan and that it last
no longer than three hours.
Following the grant of a certificate of immediate review, GM
filed an application for interlocutory appeal, which the Court of
Appeals granted. The Court of Appeals affirmed the trial court’s
denial of the motion for protective order and, like the trial court,
rejected GM’s request to apply the apex doctrine. See General
Motors, LLC v. Buchanan, 359 Ga. App. 412, 417-418 (2) (858 SE2d
102) (2021). Noting that OCGA § 9-11-26 (b) (1) is broader than its
federal counterpart, see Fed. R. Civ. Proc. 26 (b) (1), the Court of
Appeals concluded that the parties could “obtain discovery
8
regarding any matter, not privileged, which is relevant to the subject
matter involved,” but that a trial court may prohibit, or impose
limitations on, discovery requests under OCGA § 9-11-26 (c).
Buchanan, 359 Ga. App. at 414. The Court of Appeals reasoned that
the trial court could consider whether Barra had unique personal
knowledge of properly discoverable facts and whether those facts
could be discovered by other, less burdensome means as among the
myriad considerations, but that it was not required to do so. See id.
at 415 (1). The Court of Appeals held that there was evidence to
support the trial court’s conclusion that GM did not meet its burden
of showing good cause because its only argument was that Barra
should not be deposed because she was a high-ranking executive
without unique knowledge. See id. at 416-417 (1).
We granted GM’s petition for a writ of certiorari and posed the
questions noted at the outset of this opinion.
2. Analysis
(a) The scope of discovery in Georgia
The scope of discovery under the Civil Practice Act is broad.
9
See Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206,
210 (2) (538 SE2d 441) (2000) (“[T]he discovery procedure is to be
construed liberally in favor of supplying a party with the facts.”).
OCGA § 9-11-26 (b) (1) provides:
Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter
involved in the pending action, whether it relates to the
claim or defense of the party seeking discovery or to the
claim or defense of any other party . . . .
Trial courts “should and ordinarily do interpret ‘relevant’ very
broadly” so as to “remove the potential for secrecy” and to “reduce
the element of surprise at trial.” (Citations and punctuation
omitted.) Bowden v. The Medical Center, Inc., 297 Ga. 285, 291-292
(2) (a) (773 SE2d 692) (2015). Moreover, “[i]t is not ground for
objection that the information sought will be inadmissible at the
trial if the information sought appears reasonably calculated to lead
to the discovery of admissible evidence.” Id. at 290 (2) (a).
However, trial courts may limit discovery in multiple ways,
including for “good cause shown” under OCGA § 9-11-26 (c). More
specifically, OCGA § 9-11-26 (c) provides:
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Upon motion by a party or by the person from whom
discovery is sought and for good cause shown, the court in
which the action is pending or, alternatively, on matters
relating to a deposition, the court in a county where the
deposition is to be taken may make any order which
justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden
or expense[.]
The trial court has “wide discretion in the entering of orders . . .
preventing the . . . taking of depositions [under OCGA § 9-11-26 (c).]”
(Citation omitted.) Hampton Island Founders, LLC v. Liberty
Capital, LLC, 283 Ga. 289, 296 (4) (658 SE2d 619) (2008). And “[t]his
court has repeatedly held that it will not reverse a trial court’s
decision on discovery matters absent a clear abuse of discretion.”
Ambassador College v. Goetzke, 244 Ga. 322, 323 (1) (260 SE2d 27)
(1979); see also Alexander Properties Grp. Inc. v. Doe, 280 Ga. 306,
307 (1) (626 SE2d 497) (2006) (“The grant or denial of a motion for
protective order generally lies within the sound discretion of the
trial court[], and the exercise of that discretion is reviewed on appeal
for abuse.” (citation omitted)).
In exercising its discretion under OCGA § 9-11-26 (c), the court
11
can order, among other things, that discovery not be had, allow it
“only on specified terms and conditions, including a designation of
the time or place,” change the method of discovery, seal a deposition,
restrict disclosure of trade secrets and other sensitive commercial
information, or require that the discovery be filed under seal. See
OCGA § 9-11-26 (c) (1) - (8). The movant bears the burden of showing
her entitlement to a protective order under this rule. See OCGA § 9-
11-26 (c) (authorizing issuance of protective orders “[u]pon motion
by a party . . . and for good cause shown”). See also Hill, Kertscher
& Wharton, LLP v. Moody, 308 Ga. 74, 80 (2) (839 SE2d 535) (2020)
(“Plaintiffs bore the burden of showing their entitlement to a
protective order.”). To meet this burden, the movant must establish
good cause for the issuance of a protective order. See OCGA § 9-11-
26 (c); Moody, 308 Ga. at 80 (2). The rule does not specify or limit
the grounds a party may assert as good cause for a protective order.
(b) The “apex doctrine”
GM and several amici curiae argue that, in determining
whether good cause exists for the issuance of a protective order of a
12
high-ranking corporate executive under OCGA § 9-11-26 (c), a court
should employ the framework of the apex doctrine. But before we
can address whether a court should consider the apex doctrine in
assessing good cause for a protective order under OCGA § 9-11-26
(c), we first review the factors typically associated with the apex
doctrine and the burden associated with seeking such an order.
(i) Apex doctrine factors
GM and several amici point to the considerable body of
jurisprudence addressing the circumstances in which it is
appropriate to depose corporate executives and many cases from
other jurisdictions – primarily federal district courts – purporting to
apply some iteration of the apex doctrine. 2 Though the case law is
2 It bears noting that many jurisdictions have rejected or opted not to
adopt the apex doctrine, including the only federal appellate court to address
the doctrine by name. See, e.g., Serrano v. Cintas Corp., 699 F3d 884, 901-902
(II) (C) (3) (6th Cir. 2012) (holding instead that to justify a protective order
under Federal Rule 26 (c), one of the enumerated harms “must be illustrated
with a particular and specific demonstration of fact, as distinguished from
stereotyped and conclusory statements” (citation and punctuation omitted));
BlueMountain Credit Alt. Master Fund L.P. v. Regal Ent. Grp., 465 P3d 122,
131-132 (37-41) (Colo. 2020) (concluding that the apex doctrine “is inconsistent
with Colorado law”); Bradshaw v. Maiden, No. 14 CVS 14445, 2017 WL
1238823, at *5 (II) (N.C. Super. Ct. Mar. 31, 2017) (holding that “adoption of
13
not always uniform in its application of the apex doctrine, GM
argues that the case law reflects a consensus as to the following four
factors it suggests a trial court should generally consider when
determining whether good cause exists for granting a protective
order against a deposition of a high-ranking corporate executive: (1)
whether the deponent is a sufficiently high-ranking executive
considering her role and responsibilities in the organization; (2) the
extent to which the facts sought to be discovered in the deposition
are properly discoverable; (3) whether the executive has unique
personal knowledge of relevant facts; and (4) whether there are
alternative means, including written discovery or depositions of
other witnesses (including a deposition of an organizational
the apex doctrine is not necessary and that [North Carolina] Rule 26 is entirely
adequate” to resolve the dispute over the deposition); Netscout Sys., Inc. v.
Gartner, Inc., No. (FS1) TCV146022988S, 2016 WL 5339454, at *6 (Conn.
Super. Ct. Aug. 22, 2016) (holding that the apex doctrine was incompatible
with Connecticut law to the extent that it shifted the burden of showing good
cause); Crest Infiniti, II, LP v. Swinton, 174 P3d 996, 1004 (17) (Okla. 2007)
(“We decline to adopt a form of the apex doctrine that shifts a burden to the
party seeking discovery. In Oklahoma, the burden of showing ‘good cause’ is
statutorily placed on the party objecting to discovery and is part of that party’s
motion for a protective order.”); State ex rel. Ford Motor Co. v. Messina, 71
SW3d 602, 607 (II) (Mo. 2002) (“This Court declines to adopt an ‘apex’ rule.”).
14
representative pursuant to OCGA § 9-11-30 (b) (6)) by which the
same facts could be discovered. We focus here on these factors most
commonly associated with the apex doctrine, as argued by GM and
explained in more detail below.
In the corporate context, the apex doctrine generally is
intended to apply only to “high-level” executives. See Minter v. Wells
Fargo Bank, N.A., 258 FRD 118, 126 (I) (A) (D. Md. 2009) (“[T]he
apex deposition rule is intended to protect busy, high-level
executives.”). Whether an executive is considered sufficiently “high-
ranking” in a particular organization such that the doctrine should
apply to her is less clear, however. Some jurisdictions have
attempted to provide some sort of guidance in making this
determination. See, e.g., Apple Inc. v. Samsung Elec. Co., Ltd., 282
FRD 259, 263 (III) (N.D. Cal. 2012) (“In order that the ‘apex’
designation as applied to multiple executives does not itself become
a tool for evading otherwise relevant and permissible discovery, the
court must assess . . . with apologies – the person’s degree of ‘apex-
ness’ in relation to [the other] factors.”); see also Estate of Levingston
15
v. Cnty. of Kern, 320 FRD 520, 526 (V) (A) (E.D. Cal. 2017)
(considering how highly official is ranked in the county); K.C.R. v.
Cty. of Los Angeles, No. CV 13-3806 PSG (SSx), 2014 WL 3434257,
at *6 (IV) (C.D. Cal. July 11, 2014) (considering hierarchical
structure of department, official’s key role in setting and enforcing
policies and practices, and “significant risk” of being “called to testify
in innumerable suits” in concluding that official was sufficiently
high-ranking); Alexander v. F.B.I., 186 FRD 1, 3-4 (II) (A) (D.D.C.
1998) (evaluating seniority and level of compensation in
determining if official was sufficiently high-ranking). Further, as
one court described this doctrine,
[o]n the proverbial sliding scale, the closer that a proposed
witness is to the apex of some particular peak in the
corporate mountain range, and the less directly relevant
that person is to the evidence proffered in support of his
deposition, the more appropriate the protections of the
apex doctrine become.
Apple Inc., 282 FRD at 263 (III).
“The rationale for barring such depositions is that high level
executives are vulnerable to numerous, repetitive, harassing, and
16
abusive depositions, and therefore need some measure of protection
from the courts.” (Citation and punctuation omitted.) In re Mentor
Corp. Obtape Transobturator Sling Prods. Liab. Litig., No. 4:08-MD-
2004(CDL), 2009 WL 4730321, *1 (M.D. Ga. Dec. 1, 2009); see also
In re Bridgestone/Firestone, Inc., Tires Products Liab. Litig., 205
FRD 535, 536 (S.D. Ind. 2002). These cases establish that the apex
doctrine “is aimed to prevent the high level official deposition that
is sought simply because [s]he is the CEO or agency head – the top
official, not because of any special knowledge of, or involvement in,
the matter in dispute.” Minter v. Wells Fargo Bank, N.A., 258 FRD
118, 126 (I) (A) (D. Md. 2009).
Other courts have also determined that, in order for the
deposition of a high-ranking executive to move forward, that person
must have some knowledge of facts that are properly discoverable –
that is, facts that are relevant to the litigation. See, e.g., Simms v.
Nat. Football League, No. 3:11-CV-0248-M-BK, 2013 WL 9792709,
at *3 (N.D. Tex. July 10, 2013); Alliance Indus., Inc. v. Longyear
Holding, Inc., No. 08CV490S, 2010 WL 4323071, *4 (III) (A)
17
(W.D.N.Y. Mar. 19, 2010). And, as applied by a number of federal
district courts, this knowledge must be personal and unique or
superior to that of other persons from the organization who might
be deposed in the litigation. See, e.g., Thomas v. Intl. Bus. Machines,
48 F3d 478, 483 (II) (A) (10th Cir. 1995) (affirming district court’s
grant of protective order prohibiting deposition of chairman of
defendant’s board of directors where chairman had no personal
knowledge of plaintiff’s claim and other employees had direct
knowledge); Chick-Fil-A, Inc. v. CFT Dev., LLC, No. 5:07-cv-501-Oc-
10GRJ, 2009 WL 928226, *3 (II) (M.D. Fla. Apr. 3, 2009) (denying
motion to compel deposition of president where moving party failed
to convince the court that he possessed any “unique or superior
knowledge concerning any information which is relevant and
material to the issues in this case” or that the defendants had “been
unable to obtain full and complete discovery” from the other
company representatives already deposed in the case); Burns v.
Bank of America, No. 03 Civ. 1685 RMB JCF, 2007 WL 1589437, *3
(S.D.N.Y. June 4, 2007) (holding that “[u]nless it can be
18
demonstrated that a corporate official has ‘some unique knowledge’
of the issues in the case, ‘it may be appropriate to preclude a
deposition of a highly-placed executive’ while allowing other
witnesses with the same knowledge to be questioned.”).
Further, courts should consider whether the high-ranking
executive’s “unique or superior knowledge” is available through
other means. See Cuyler v. Kroger Co., No.1:14-CV-1287-WBH-AJB,
2014 WL 12547267, *6 (B) (N.D. Ga. Oct. 3, 2014); see also Brown v.
Branch Banking and Trust Co., No. 13-81192-CIV, 2014 WL 235455,
*3 (S.D. Fla. Jan. 22, 2014) (plaintiffs must show that “no less
intrusive means (such as serving interrogatories, deposing a Rule 30
(b) (6) corporate representative and/or lower level employees) exist”).
Exhaustion of less intrusive means of discovery is not necessarily
“an absolute requirement; instead, exhaustion of other discovery
methods is an important, but not dispositive, consideration for a
court to take into account in deciding how to exercise its discretion.”
Reilly v. Chipotle Mexican Grill, Inc., No. 15-Civ-23425-
COOKE/TORRES, 2016 WL 10644064, *7 (II) (B) (2) (c) (S.D. Fla.
19
Sept. 26, 2016). See also In re Transpacific Passenger Air Transp.
Antitrust Litig., No. C-07-05634 CRB (DMR), 2014 WL 939287, at *5
(III) (N.D. Cal. Mar. 6, 2014) (noting that exhaustion of other
discovery routes is an “important consideration” but not a necessary
precondition to the taking of an apex deposition).
(ii) The parties’ respective burdens under the apex doctrine
When it comes to determining who bears the burden to prove
or defeat a protective order under the apex doctrine, federal courts
have adopted varying approaches. In some courts, application of the
doctrine results in shifting the burden of proof to the party
requesting the discovery. See, e.g., Degenhart v. Arthur State Bank,
No. CV411-041, 2011 WL 3651312, *1 (S.D. Ga. Aug. 8, 2011) (“As
the party seeking to compel the deposition of a high-ranking
executive, the deposing party has the burden of showing that the
target’s deposition is necessary.” (citation and punctuation
omitted)); Hickey v. North Broward Hosp. Dist., No. 14-CV-60542,
2014 WL 7495780, *2 (A) (S.D. Fla. Dec. 17, 2014) (same);
Performance Sales & Marketing LLC v. Lowe’s Companies, Inc., No.
20
5:07-CV-00140-RLV, 2012 WL 4061680, at *4 (II) (C) (W.D.N.C.
Sept. 14, 2012) (“[T]he apex doctrine is the application of the
rebuttable presumption that the deposition of a high-ranking
corporate executive either violates Rule 26 (b) (2) (C)’s
proportionality standard or, on a party’s motion for a protective
order, constitutes ‘good cause’ for such an order as an ‘annoyance’ or
‘undue burden’ within the meaning of Rule 26 (c) (1).”).
In other federal courts, however, the party seeking relief from
discovery bears the burden of establishing that good cause exists for
a protective order through application of the apex factors. See, e.g.,
Dyson, Inc. v. Sharkninja Operating LLC, No. 1:14-cv-0779, 2016
WL 1613489, *1 (II) (A) (N.D. Ill. Apr. 22, 2016) (“Plaintiffs[’]
contention that Defendants bear the burden of proving that their
discovery is appropriate misstates and inverts the burden of proof in
this case. The burden under the apex principle is supplied by the
general rule [that] a party that seeks to avoid discovery in general
bears the burden of showing that good cause exists to prevent the
discovery.” (citation and punctuation omitted)); Scott v. Chipotle
21
Mexican Grill, Inc., 306 FRD 120, 122 (I) (S.D.N.Y. 2015) (stating
that even in apex doctrine scenarios, the plaintiff bears no burden
to show that the deponent has special knowledge).
Finally, other federal courts have developed a hybrid, burden-
shifting version of the doctrine. See, e.g., Naylor Farms, Inc. v.
Anadarko OGC Co., No. 11-cv-01528-REB-KLM, 2011 WL 2535067,
at *2 (D. Colo. June 27, 2011) (party seeking to depose an executive
“bears an initial burden of making some showing that the executive
has ‘unique personal knowledge’ of some relevant issues,” and then
“the burden shifts to the executive to demonstrate by evidence that
he in fact has no personal knowledge or that there exists one of the
other three circumstances under which requiring him to sit for a
deposition is inappropriate,” though “the ultimate burden of
persuasion lies with the executive invoking the apex doctrine”);
Alliance Indus., Inc. v. Longyear Holding, Inc., No. 08CV490S, 2010
WL 4323071, at *4 (III) (W.D.N.Y. Mar. 19, 2010) (noting that the
party seeking discovery must first establish the relevance of the
material sought from the executive, and once that burden has been
22
met, it then shifts to the party opposing disclosure to show good
cause for not producing its executive); Tierra Blanca Ranch High
Country Youth Program v. Gonzales, 329 FRD 694, 697-698 (II)
(D.N.M. 2019) (applying this same burden-shifting test). Thus,
federal courts that recognize some version of the apex doctrine are
split on which party bears the ultimate burden.
(c) Consideration of apex doctrine factors under Georgia law
and the associated burden as to those factors
GM argues that federal cases interpreting Federal Rule 26 and
applying apex doctrine factors should be considered by Georgia
courts as persuasive authority in evaluating whether good cause for
a protective order exists. However, the text of Federal Rule 26 shows
that the scope of discovery is narrower than that contemplated by
OCGA § 9-11-26 (b). Compare Fed. R. Civ. P. 26 (b) (1) (providing
that parties may obtain discovery on matters that are “relevant to
any party’s claim . . . and proportional to the needs of the case,
considering [a number of factors, including] whether the burden or
expense of the proposed discovery outweighs its likely benefit”) with
23
OCGA § 9-11-26 (b) (providing that “[p]arties may obtain discovery
regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action”); see also City of Huntington
v. AmerisourceBergen Drug Corp., No. 3:17-01362, 3:17-01665, 2020
WL 3520314, at *2 (III) (S.D.W.V. June 29, 2020) (noting the
proportionality standard in the federal rule, which considers “the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of discovery outweighs
its likely benefit”); Bowden, 297 Ga. at 291 n.5 (noting that, unlike
OCGA § 9-11-26, Federal Rule 26 has had “several amendments to
narrow the scope of discovery”). Moreover, the text of OCGA § 9-11-
26 (c) makes it clear that the movant bears the burden of
establishing that a protective order is necessary. See OCGA § 9-11-
26 (c); Moody, 308 Ga. at 80 (2). Thus, to the extent federal courts
have interpreted Federal Rule 26, those interpretations are relevant
to Georgia only insofar as they comport with the text of our
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analogous rule. More specifically, to the extent that federal courts
interpret the apex doctrine as establishing a burden-shifting scheme
or a rebuttable presumption that the deposition of a high-ranking
corporate executive violates Federal Rule 26 (b) (2) (C)’s
proportionality standard, no such equivalent consideration exists
under Georgia’s Rule 26 (c). And although we acknowledge as a
general principle that we look to federal case law interpreting the
Federal Rules of Civil Procedure as persuasive authority, see
Bowden, 297 Ga. at 291 n.5, where the language of a Georgia statute
deviates from the federal rules, the persuasive value of the authority
interpreting and applying the federal rules is diminished. See, e.g.,
Blanton v. Blanton, 259 Ga. 622, 622 (1) (385 SE2d 672) (1989)
(noting textual differences between Federal Rule 45 and OCGA § 9-
11-45 pertaining to subpoenas and declining to follow the federal
approach). Accordingly, we decline to adopt any version of the apex
doctrine that shifts the burden to the party seeking discovery.
Instead, courts applying Georgia law should rely on the
overarching dictates of OCGA § 9-11-26 (c) in determining whether
25
to grant a protective order. Under that statutory provision, to justify
a protective order, 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.
See Caldwell v. Church, 341 Ga. App. 852, 861 (4) (802 SE2d 835)
(2017) (“[M]ere conclusory statements, bereft of facts[,] will not
support the imposition of limitations on civil discovery.” (citation
and punctuation omitted)); Young v. Jones, 149 Ga. App. 819, 824
(256 SE2d 58) (1979) (“Good cause for the issuance of a protective
order designed to frustrate discovery . . . necessarily is not
established by stereotyped or conclusional statements, bereft of
facts.”). And as the Court of Appeals rightly noted, “‘[w]hat
constitutes ‘good cause’ must be left largely to the trial judge who
has a latitude of discretion in determining whether the showing has
been made.’” Buchanan, 359 Ga. App. at 417 (1) (quoting Harris v.
Tenet Healthsystem Spalding, Inc., 322 Ga. App. 894, 901 (3) (746
26
SE2d 618) (2013)). Adopting the apex doctrine would necessarily
restrict the trial court’s discretion by placing a thumb on the scale
so as to suggest a special rule for high-ranking executives of large
companies that exists nowhere in the Civil Practice Act, and would
contravene the principle of broadly available discovery under
Georgia law. See Tenet Healthcare Corp., 273 Ga. at 210; OCGA § 9-
11-26 (b) (1). 3
Moreover, we reject GM’s assertion that leaving the
determination of good cause to a trial court’s discretion will result in
inconsistent outcomes that will make meaningful appellate review
difficult, if not impossible. Trial courts are regularly called upon to
exercise their discretion in considering whether good cause exists in
3 The holding of the United States Court of Appeals for the Fifth Circuit
in Salter v. Upjohn Co., 593 F2d 649 (5th Cir. 1979) does not support a different
result. In Salter, the Fifth Circuit recognized the trial court’s “broad discretion”
in controlling the timing of discovery when it affirmed the trial court’s issuance
of a protective order requiring the discovering party to depose employees with
the most direct knowledge of relevant facts. See id. at 651. However, the court
did not formalize the application of the underlying principles of the apex
doctrine into a generally applicable doctrine or rule, and indeed noted that “[i]t
is very unusual for a court to prohibit the taking of a deposition altogether and
absent extraordinary circumstances, such an order would likely be in error.”
Id.
27
other circumstances, and appellate courts are able to review the
reasonableness of those decisions under the specific circumstances
of the case based upon the evidence and arguments presented to the
trial court. 4 There is no reason that the same cannot be true here.
For these reasons, we see no need to employ a special test or
framework different than that which generally applies to any claim
of good cause made in support of a motion for protective order under
4 See, e.g., Moody, 308 Ga. at 80 (2) (upholding trial court’s finding that
plaintiffs did not establish good cause entitling it to a protective order because,
among other things, the finding was supported by discovery responses);
DeVaughn v. State, 296 Ga. 475, 478 (3) (769 SE2d 70) (2015) (trial court “did
not abuse its discretion in ruling that the State had established good cause for
allowing an exception to the ten-day rule” in OCGA § 17-16-8 (a) that requires
disclosure of a witness at least ten days before trial where, after substantial
efforts to find the witness, the State “was able to identify and speak with [him]
for the first time as the jury was being selected”); Harris v. State, 278 Ga. 596,
597 (1) (604 SE2d 788) (2004) (based on facts in the record, trial court did not
abuse its discretion in determining that good cause existed to seat alternate
juror under OCGA § 15-12-172); Yates v. State, 274 Ga. 312, 315 (2) (553 SE2d
563) (2001) (reversing and noting, among other things, that while a trial court
has “broad discretion” in determining whether good cause exists to excuse a
juror for service, “that discretion is abused when the trial court fails to make
any inquiry into whether the proffered excuse constitutes ‘good cause’” under
OCGA § 51-12-1 (a)); Crider v. Sneider, 243 Ga. 642, 645-646 (1) (256 SE2d
335) (1979) (no abuse of discretion where the trial court, in determining
whether good cause had been shown for a mental and physical examination of
the defendant under predecessor to OCGA § 9-11-35, considered whether the
facts and circumstances of the collision could be established by other sources
of evidence).
28
OCGA § 9-11-26 (c).
Despite many federal cases it cites holding otherwise, GM
concedes that, as the party seeking a protective order in this case, it
has the initial burden of establishing good cause for such relief.
However, it argues that this burden is met when it shows that the
deponent is a high-ranking executive, that she has no unique
personal knowledge that is properly discoverable, and that the
discoverable information is available through other means –
essentially, when it demonstrates that it has satisfied apex doctrine
factors. But GM’s view effectively builds in a presumption of good
cause in favor of protection from discovery once apex doctrine factors
are established. And, as noted above, the text of OCGA § 9-11-26 (c)
places the burden on the party seeking protection from discovery to
establish good cause. GM’s formulation would impermissibly shift
that burden to the party seeking discovery.
Accordingly, when factors commonly associated with the apex
doctrine are raised and adequately shown by a party seeking a
protective order, a court should consider those factors – as well as
29
any other factors raised – and decisions applying those factors in
determining whether the party seeking relief has shown good cause
for a protective order under OCGA § 9-11-26 (c). That is, a court
must consider whether the deposition of a particular individual
would cause “annoyance, embarrassment, oppression, or undue
burden or expense” based on, for example, that person’s scheduling
demands or responsibilities and lack of relevant or unique personal
knowledge that is not available from other sources. OCGA § 9-11-26
(c).
Such consideration is not solely a product of the relative
organizational “importance” of a prospective deponent. Rather,
courts should consider on a case-by-case basis whether the evidence
demonstrates good cause such as an undue burden or expense. High-
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
30
of the organizations they lead.5 And large multinational companies
are subject to the same Georgia discovery rules as smaller ones.
With respect to the discovery rules, we have said that “[t]he
availability of one form of proof does not make other forms of proof
irrelevant[.]” Bowden, 297 Ga. at 296 (2) (b). Thus, discovery is not
usually limited to “unique” knowledge. Very often, discovery is
sought to uncover what witnesses do or do not know and to reveal
inconsistencies between witnesses. See, e.g., Flower v. T.B.A. Indus.,
5 It is not high rank alone that warrants consideration for good cause,
but rather the significant responsibilities – and thus the burden on the
executive imposed by the distraction of a deposition – that generally
accompany that rank. Of course, significant responsibilities and the
accompanying burden of disruption are not limited to high-ranking corporate
executives. For example, a single parent who works full-time outside the home,
an individual who runs the whole “back office” or who serves as the sole outside
sales presence of a small business, or an administrator who supervises the
person who actually handled the records at issue in a case also might be able
to claim that their situation warrants a finding that they would be
unnecessarily burdened by being compelled to participate in a deposition,
especially if they lack unique personal knowledge of relevant information
readily available from another source. But they, like the CEO, would need to
demonstrate the actual facts of their circumstances to support a finding of good
cause for a protective order. Moreover, it is not mere “busyness” that warrants
a protective order. We live in a busy world. Rather, as required by the text of
the rule, a protective order under OCGA § 9-11-26 (c) is warranted only where
the movant demonstrates to the trial court that the sitting for a deposition
would result in “annoyance, embarrassment, oppression, or undue burden or
expense.”
31
Inc., 111 P3d 1192, 1206 (Wisc. App. 2005) (“[C]laimed lack of
knowledge does not provide sufficient grounds for a protective order
[as] the other side is allowed to test this claim by deposing the
witness.”); Kuwait Airways Corp. v. Am. Sec. Bank, N. A., No. 86-
CV-2542, 1987 WL 11994, at *2 (D.D.C. May 26, 1987) (“The reason
why [the Chairman’s] alleged lack of knowledge is not a sufficient
ground to prevent a deposition is obvious. The very purpose of the
deposition discovery is to test the extent of the deponent’s knowledge
and claims of ignorance.”); Travelers Rental Co. v. Ford Motor Co.,
116 FRD 140, 143 (D. Mass. 1987) (“The plaintiff is entitled to ‘test’
the claim of lack of knowledge or lack of recollection by deposing the
witness.”).
Thus, a court considering whether factors commonly associated
with the apex doctrine should limit or bar a plaintiff from deposing
a high-ranking executive need not interpret the factors as a firmly
established basis for an order prohibiting an executive’s deposition.
It 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
32
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.
Likewise, the absence of factors commonly associated with the apex
doctrine does not mean that a protective order for a high-ranking
official’s deposition cannot be granted if other factors presented
show good cause for such a conclusion. In making these
determinations, courts must balance the interests of the parties in
securing permissible discovery with the clear directive of OCGA § 9-
11-26 (c) to protect against “annoyance, embarrassment, oppression,
or undue burden or expense,” as this determination is directed to be
made in the interest of “justice,” which must include consideration
of all concerned parties. Further, when a protective order is denied
“in whole or in part, the court may, on such terms and conditions as
are just,” regulate the terms and conditions for discovery and can
otherwise control the sequence and timing of discovery. OCGA § 9-
11-26 (c) & (d).
Finally, GM and several amici raise policy concerns about
33
inefficiencies in discovery involving corporate defendants absent
mandatory application of the apex doctrine, like the collective
impact of discovery on corporate executives (such as an
overwhelming influx of deposition requests that will expose them to
harassment and abusive, unduly burdensome discovery practices
that will prevent them from fulfilling their professional duties), the
potential for abuse by plaintiff’s counsel, and the creation of a
double-standard between Georgia’s state and federal courts. But
these policy concerns are properly addressed not by this Court but
by petitioning the General Assembly and advocating for a change in
the law. See McEntyre v. Sam’s East, Inc., No. S21Q0909, 2022 WL
677417, at *3 (2) (a) (Ga. Mar. 8, 2022) (“[I]t is not for this Court to
expand or contract the scope of the General Assembly’s legislative
enactments, unless the policy choices it makes by enacting statutes
exceed its constitutional authority.”).
(d) The trial court’s order
Turning to the application of these principles to this case, GM
asked the trial court to consider Barra’s alleged lack of “unique or
34
superior knowledge of issues relevant to the case” and the allegation
that Buchanan could obtain relevant information by other, less
intrusive means (such as through the testimony of lower-level
corporate agents or employees with personal knowledge about the
alleged defects). GM also argued that the deposition was intended to
harass Barra and GM.
The trial court’s order reflects that it generally concluded that
“there is no express or implied law in Georgia for the ‘apex doctrine’
or other framework that imposes presumptive hurdles to seeking
discovery (or deposition testimony) from certain corporate
individuals.” This conclusion about the apex doctrine as
presumptive or burden-shifting was correct, as we explained above.
However, the court’s order does not otherwise indicate that the court
considered whether the substantive merits of GM’s arguments
constituted good cause for granting GM’s motion for a protective
order. As noted above, independent of the apex doctrine, the
asserted factors are entitled to consideration as to whether they
constitute “good cause” if established, whether in isolation or in
35
concert.
The trial court further concluded, relying on identical language
in Bullard v. Ewing, 158 Ga. App. 287, 291 (279 SE2d 737) (1981),
that “until such time as the court is satisfied by substantial evidence
that bad faith or harassment motivates the discoveror’s action, the
court should not intervene to limit or prohibit the scope of pretrial
discovery” and ruled that GM had not shown good cause for the
protective order. (Emphasis in original.) However, OCGA § 9-11-26
(c) makes clear that a court’s decision whether to issue a protective
order is to be based on the effect the proposed discovery would have
on the party from whom the discovery is sought, not the intent or
motivations of the requesting party. See OCGA § 9-11-26 (c)
(providing that a court may issue a protective order “to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense”). The trial court’s apparent construction
of this rule based on the language found in Bullard would require
substantial evidence of bad faith or a purpose of harassment on the
part of the party seeking discovery as a predicate to the issuance of
36
a protective order. That interpretation is incorrect and has no basis
in the text of OCGA § 9-11-26 (c). For this reason, we overrule
Bullard to the extent it held otherwise. 6
Finally, we note that the Court of Appeals’ opinion suggests
that the trial court needed only to determine that the requested
discovery was relevant and was not required to consider GM’s
arguments that apex doctrine factors constituted good cause for a
6 Bullard, in turn, relied on Bridges v. 20th Century Travel, 149 Ga. App.
837, 838-839 (256 SE2d 102) (1970), and Intl. Ser. Ins. Co. v. Bowen, 130 Ga.
App. 140, 144 (202 SE2d 540) (1973). These cases both quote language from
Travis Meat & Seafood Co., Inc. v. Ashworth, 127 Ga. App. 284, 288 (193 SE2d
166) (1972), which cited Stonybrook Tenants Assn., Inc. v. Alpert, 29 FRD 165,
167 (D. Conn. 1961). In Stonybrook, the federal District Court for Connecticut,
citing no authority, stated that “[u]ntil such time as the court is satisfied that
bad faith or harassment motivates the movers’ action, the court will not
intervene to limit the scope of pre-trial discovery.” Id. at 167. Similar language
has appeared in other opinions from Georgia’s Court of Appeals. See, e.g.,
Caldwell v. Church, 341 Ga. App. 852, 861 (4) (802 SE2d 835) (2017); Ewing v.
Ewing, 333 Ga. App. 766, 768 (1) (777 SE2d 56) (2015); Galbreath v. Braley,
318 Ga. App. 111, 113 (733 SE2d 412) (2012); McKesson HBOC, Inc. v. Adler,
254 Ga. App. 500, 505 (3) (562 SE2d 809) (2002); Parks v. Multimedia
Technologies, Inc., 239 Ga. App. 282, 296 (6) (520 SE2d 517) (1999); Clayton
Cnty. Bd. of Tax Assessors v. Lake Spivey Golf Club, Inc., 207 Ga. App. 693,
695 (2) (428 SE2d 687) (1993); Deloitte Haskins & Sells v. Green, 187 Ga. App.
376, 379 (2) (370 SE2d 194) (1988); Osborne v. Bank of Delight, 173 Ga. App.
322, 324 (2) (326 SE2d 523) (1985); Armstrong v. Strand, 167 Ga. App. 723,
724 (307 SE2d 528) (1983). These cases from Georgia’s Court of Appeals are
also disapproved to the extent they rely on such language, which has no basis
in the text of OCGA § 9-11-26 (c).
37
protective order under OCGA § 9-11-26 (c). See Buchanan, 359 Ga.
App. at 415 (1) (noting that “the court may consider a myriad of
factors to determine whether GM showed good cause to protect
Barra from annoyance, embarrassment, oppression, or undue
burden or expense,” but that it was not required to). But, as noted
above, to the extent a party seeking a protective order argues that a
proposed deponent should be protected “from annoyance,
embarrassment, oppression, or undue burden or expense” based on
apex doctrine (or any other) factors, a trial court must consider
whether the movant’s arguments (and evidence presented in
support of such arguments) constitute good cause for protection from
discovery under OCGA § 9-11-26 (c). The discretion conferred upon
the trial court, while broad, requires the trial court to actually
consider the evidence and arguments presented and exercise that
discretion.
For these reasons, we vacate the judgment of the Court of
Appeals and remand the case with direction to vacate the trial
court’s order and remand the case for reconsideration consistent
38
with this opinion.
Judgment vacated and case remanded with direction. All the
Justices concur, except Colvin, J., disqualified.
39