Even a meritless lawsuit can impose an enormous burden on a company. There is the ridiculous expense, of course. Legal fees and other costs of defending a lawsuit can easily add up to more money than most juries award to plaintiffs. Some of those costs can be indirect but profound. Employees who would prefer to be busy working on product improvements end up being distracted by deposition preparation, document collection, etc.
That distraction is particularly annoying when plaintiff lawyers insist on deposing C-suite executives. Such executives seldom know details as much as employees working closer to the ground. C-suite executives have their hands and calendars full orchestrating larger corporate strategies. Getting time to prepare such witnesses for depositions is not easy. Stakes are high. So is the pressure. Time is shorter than we’d like. Most of us have probably heard of awful soundbites from depositions of CEO’s and COO’s. We once had the, er, pleasure, of seeing snippets from our client’s CEO deposition on 60 Minutes.
Moreover, because companies are sued so often, and because plaintiff lawyers take sadistic joy in sitting across a conference room table (real or virtual) from high-ranking executives, corporate executives could conceivably spend most of their time working on litigation than on their actual jobs.
Enter the Apex Doctrine. Courts in most jurisdictions entertain motions for a protective order seeking to prevent or limit depositions of high level corporate executives, The motion is typically supported by an affidavit demonstrating that the executive is a very high ranking, Apex employee who lacks unique personal knowledge about the issues in the case. Then the party seeking the deposition bears the burden of showing that the relevant information sought cannot be obtained without the Apex deposition. The court then then weighs the interests. More often than not, there is no reason for the Apex deposition. Plenty of alternative, less burdensome avenues of discovery exist. Sometimes the court will permit the deposition but limit the topics or time.
Note that we earlier said that the Apex doctrine applies “in most jurisdictions.” That is certainly true of federal courts. In the recent case of General Motors, LLC v. Buchanan, 2022 WL 1750716 (Georgia June 1, 2022), the Georgia Supreme Court decided whether Georgia would be among those “most jurisdictions.” The answer? Not really, but almost.
In Buchanan, the plaintiff brought a wrongful death action against GM, alleging that his wife was killed in a car accident due to a defect in her car’s electronic stability control system. The plaintiff sought to depose the GM CEO. That is about as Apex as one can get. GM moved for a protective order preventing the deposition, arguing that the CEO lacked pertinent personal knowledge. The trial court denied the protective order, holding that Georgia’s liberal discovery regime (Georgia does not employ the proportionality language, so the next time somebody asks whether such language makes any difference, now you have an answer) was inconsistent with the Apex doctrine, and that there was insufficient evidence that the plaintiff’s effort to depose the CEO was animated by bad faith. The Court of Appeals affirmed, and then the Georgia Supreme Court granted certiorari.
The Georgia Supreme Court took a tour through Apex doctrine case law. The bad news is that the court “decline[d] to adopt any version of the apex doctrine that shifts the burden to the party seeking discovery.” But general principles of Georgia discovery law can get pretty close to the Apex doctrine. The rule is that “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.” At the same time, high-ranking executives are not immune from depositions solely “by virtue of the positions they hold or the size of the organizations they lead.” Thus, the Georgia Supreme Court rejected any sort of bright line rule. If you think a bright line rule is necessary, and that a messy case-by-case analysis will be inefficient and inconsistently executed, the Georgia Supreme Court’s message to aggrieved parties is petition the Georgia General Assembly for a change in the law.
Turning to the particulars of the wrongful death case, the Georgia Supreme Court held that the trial court was correct in rejecting the Apex Doctrine. But the Supreme Court also held that the trial court was incorrect in conditioning a protective order upon a showing that bad faith or harassment motivates the request for the deposition. The Georgia discovery statute makes clear that issuance of a protective order depends “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.” Thus, the Supreme Court overturned the trial court’s denial of the protective order and remanded for proper weighing of the factors supporting and countering the deposition. The Supreme Court also disagreed with the suggestion by the Court of Appeals that relevance was the only relevant consideration and that GM’s Apex arguments could be ignored. Rather, the Supreme Court instructed that the trial court must determine whether the movant demonstrated annoyance, embarrassment, oppression, or undue burden or expense. Under that standard, most Apex depositions should be seen as the unnecessary, burdensome exercises that they almost always are.
The Georgia Supreme Court did not go as far as we’d like. It did not embrace the Apex Doctrine, but it at least made a polite bow in its direction.