A frequent and vexing issue for corporate defendants, in products liability and other cases, is the demand for a deposition of the company’s CEO or depositions of other senior executives. Even when these executives were not involved in the relevant events and have no relevant personal knowledge, plaintiffs push for their depositions to gain leverage for settlement or for other illegitimate reasons.
Many federal courts provide protection from these demands by applying the “apex doctrine,” a rule that usually shields high level officers if they have no unique personal knowledge or involvement and the relevant information is available from other sources. These courts have recognized that corporations may be involved in many lawsuits and forcing busy executives to testify when they have no significant personal knowledge or involvement would impair their ability to manage the corporation’s business.
Application of this doctrine in state courts is less consistent. Some states recognize it but in others there is no case law endorsing it (although trial judges sometimes apply its principles). On October 19, the Georgia Supreme Court agreed to address the application of the doctrine, and the relevant burden of proof, in General Motors LLC v. Buchanan. The case is a paradigm example of why the doctrine is needed – no doubt one reason GM is supported by amicus filings from the U.S. Chamber of Commerce, UPS, Coca-Cola, Delta Air Lines and others.
The case arose from a 2014 accident involving a Chevrolet Trailblazer. Plaintiff alleged his spouse was killed because a sensor in its electronic stability control system was defective. He demanded a deposition of GM’s CEO, Mary Barra, citing her testimony to Congress about an unrelated safety issue involving ignition switches in different vehicles, and her creation of a safety investigation process that was used to probe the accident involved in the case. GM responded that Ms. Barra had no involvement in the Trailblazer sensor investigation and no personal knowledge about the accident or the alleged defect, while others at GM with personal knowledge and involvement had been deposed. Plaintiff did not dispute the facts presented by GM but insisted that Ms. Barra’s general knowledge of safety issues and corporate culture justified the deposition.
The trial judge denied GM’s request for a protective order, concluding that no Georgia decision had adopted the apex doctrine, and finding that good cause had not been shown. An appellate court affirmed, holding that the grant of a protective order is a matter of judicial discretion and that the trial judge was permitted but not required to consider the CEO’s responsibilities and lack of unique personal knowledge in assessing good cause. The appellate court added that no Georgia decision endorsed the apex doctrine and concluded it is “inconsistent with Georgia’s discovery provisions that require a liberal construction in favor of supplying a party with facts.” At the same time, the presiding judge expressed sympathy with GM’s concerns and suggested the Georgia Supreme Court or the General Assembly should address the issue.
Seeking cert from the state’s highest court, GM argued that the apex doctrine is the proper framework to assess good cause for a protective order when a plaintiff demands a senior executive’s deposition. Noting that such individuals are uniquely susceptible to the harm protective orders are designed to prevent, GM cited federal and state cases that recognize the “tremendous potential for abuse or harassment” through unwarranted depositions of senior executives. GM acknowledged that an executive with significant personal involvement or unique knowledge should be required to testify but argued that “if an officer were compelled to appear for a deposition in every lawsuit to which her organization was a party and in which she had some limited knowledge of properly discoverable information, the danger that she would be rendered a perpetual witness with no time left to actually manage the affairs of her company is quite real.”
Plaintiff responded that nothing in Georgia law makes any particular individuals, including senior executives, “presumptively immune” from discovery. He also contended the doctrine effectively reverses the burden of proof on protective orders and is a “judicially made” rule contrary to the “plain language” of the Georgia statute, arguing that any “exception to the discovery rules for high-ranking executives is best left for the legislature.”
A key issue in the case is whether federal decisions applying the apex doctrine should be disregarded on the basis that federal discovery rules are meaningfully different from Georgia law. GM argued the good cause standard for protective orders in the federal rules is substantively the same as the standard in Georgia law.
Corporate defendants obviously hope the state’s highest court will recognize that the “good cause” standard should be applied to prevent this kind of “apex extortion.” In state courts where the doctrine has not yet been adopted, corporate defendants can litigate this issue in much the same way GM did here: (a) making a record of the executive’s broad responsibilities and the extraordinary demands of her position; (b) showing she lacks personal involvement or unique personal knowledge of relevant facts; (c) documenting the volume of litigation in which the company is involved in which the executive has some general knowledge or involvement not specific to the case, such as safety; (d) identifying other available deponents with actual involvement and knowledge; and (e) briefing the legal issues in a way that highlights the similarities between the federal rules under which the apex doctrine routinely is applied and the relevant state rules.