Bicknell v. CBT Factors Corp.

Carley, Judge,

concurring specially.

Based solely upon the facts and circumstances of this case, I concur in the judgment of the majority affirming the trial court’s grant of the protective order at issue. However, I would like to point out that the issue is not one on which all courts agree. There is authority for applying almost without exception the rule that one who chooses a forum must make himself available for examination in that forum. The Supreme Court of New Mexico was faced with a case in which the amount involved was even less than that at issue in the case at bar. Salitan v. Carrillo, 69 N.M. 476 (368 P2d 149) (1961). In Salitan, the court was called upon to construe its Rules of Civil Procedure which, as is true with our CPA, are patterned upon the Federal Rules of Civil Procedure. In Salitan, the court reversed the trial court’s grant of a protective order similar to the one involved in the case at bar and held that the fact that the amount in controversy was relatively small, in proportion to expense of travel from New York to New Mexico, was not sufficient to deprive the defendant of the right to depose the plaintiff in the forum which the plaintiff chose.

However, after thoroughly considering the balance that must be achieved in deciding an issue of this type, I am constrained to concur with the majority because to do otherwise would leave the door open to undue appellate restriction of the trial court’s discretion in matters of discovery. Accordingly, I agree with Dr. Agnor that “[i]t would appear to be a better rule to consider each case on its specific facts rather than to follow the choice of the forum rule.” Agnor, Use of Discovery Under the Ga. Civil Practice Act (3rd ed.), § 3-15, p. 86. Therefore, while I concur in the majority opinion, I especially wish to emphasize the last sentence of that opinion wherein it is held that “nothing stated herein should be construed to abrogate the general rule that a party who chooses a forum should be required to make himself available for examination in that forum.”