In a recent opinion, the Georgia Court of Appeals upheld a trial court’s refusal to shield General Motor’s (“GM”) chief executive from a deposition in a wrongful death case. 

In November 2014 a woman died when her Chevy Trailblazer veered off the roadway and landed in a ditch. Her husband filed suit against GM alleging it was liable for his wife’s death because of a defect in the vehicle and GM’s failure to warn. Specifically, he alleged that the vehicle’s steering wheel angle sensor (“SWAS”) failed, which prevented the vehicle’s Stabilitrack system from preventing the vehicle from losing control and leaving the road.

During discovery, the plaintiff sought to depose GM’s CEO, Mary Barra, arguing that her involvement in GM’s efforts to improve safety practices meant she had knowledge relevant to the lawsuit. GM moved for a protective order, arguing that the request to depose GM’s highest-ranking officer “is the very type of harassment, oppression, embarrassment, and undue burden and expense” that Georgia’s discovery rules were designed to prevent. In support of the motion for protective order, Barra provided an affidavit stating she lacked knowledge of the specific SWAS defect at issue in the complaint and her involvement in other safety investigations were unrelated to SWAS. GM also argued that the apex doctrine precluded the taking of Barra’s deposition. 

Under the apex doctrine, a high ranking corporate official can be shielded from having to be deposed unless there are extraordinary circumstances that justify deposing the official such as “(1) the deponent  has unique, first-hand knowledge of the facts at issues in the case; and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods.”  

The trial court refused to enter a protective order or apply the apex doctrine and GM appealed. The Court of Appeals found that the trial court did not abuse its discretion in denying the protective order because there was some evidence that Barra had information that was reasonably calculated to lead to the discovery of admissible evidence. 

Perhaps more importantly, however, the Court of Appeals refused to adopt the apex doctrine. Recognizing that other states and event federal district courts in the Eleventh Circuit have adopted the doctrine, the court found the apex doctrine to be “inconsistent with Georgia’s discovery provisions that require a liberal construction in favor of supplying a party with facts.”

Although the Court refused to adopt the doctrine, it did note that the exception to the discovery rules was best left to the legislature. In a concurring opinion, Judge Dillard “sympathize[d] with the concerns expressed by General Motors about the potential for litigants to use Georgia’s forgiving discovery standards to unduly burden high ranking executives and negatively impact business in [the] state,” but concluded that the apex doctrine is one that will have to be adopted by the General Assembly or the Supreme Court. 

The attorneys at Chilivis Grubman handle litigation on a variety of issues in courts throughout Georgia.  Please contact us today regarding your litigation needs.