Mercier, Judge.
In this wrongful death/product liability action, General Motors LLC ("GM") filed a motion for a protective order seeking to prevent the deposition of its CEO. The trial court denied the motion, and GM now appeals, asserting that the court's order violates OCGA § 9-11-26's prohibitions against abusive discovery practices. GM also urges this Court to apply the apex doctrine — a framework used by some courts to determine whether to permit the deposition of a high-ranking corporate executive.
The underlying facts are undisputed. In November 2014, Glenda Marie Buchanan ("Marie") was driving her 2007 Chevy Trailblazer when it veered off the roadway and landed in a ditch.
During discovery, Buchanan's counsel sent GM a request to depose its CEO, Mary Barra.
GM moved for a protective order to prevent Barra from being deposed, asserting that Buchanan could obtain the information sought by deposing lower-level GM employees with personal knowledge of the alleged SWAS defect, and that his request to depose GM's highest ranking officer "is the very type of harassment, oppression, embarrassment, and undue burden and expense that OCGA § 9-11-26(c) is designed to protect against." It also argued that both the apex doctrine and the application of OCGA § 9-11-26 (c) in Georgia's state and federal courts precluded the taking of Barra's deposition. Attached to the motion for a protective order was Barra's affidavit in which she averred that she was not involved in the design, development, or manufacture of the SWAS at issue, and has no direct, unique, specialized or superior knowledge about the SWAS in the 2006-2009 Trailblazers. Barra stated further that although the Speak Up program was implemented during her tenure as CEO, she did not conduct any Speak Up investigations and did not receive individual reports about each investigation.
Pursuant to OCGA § 9-11-26(b)(1), parties to a lawsuit 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[.]" However, OCGA § 9-11-26(c) provides in relevant part that
The ruling on a motion for a protective order lies within the sound discretion of the trial court, and we will only reverse the court's decision when it has abused its discretion.
1. GM argues that the trial court, in denying its motion for a protective order, violated OCGA § 9-11-26's prohibitions against abusive discovery practices. Citing Tankersley v. Security Nat. Corp., 122 Ga.App. 129, 176 S.E.2d 274 (1970) and Wheeling-Culligan v. Allen, 243 Ga.App. 776, 533 S.E.2d 797 (2000), GM asserts that the trial court erred as a matter of law by failing to acknowledge factors such as whether Barra has unique knowledge of the issues in the case and whether that information could be obtained by other less-instrusive means.
The parties do not dispute that Barra made the following statements in April and July of 2014, months before Marie's accident. During a congressional investigation into a different alleged vehicle defect, Barra stated that she would stand with her new vice president of global vehicle safety to quickly identify and resolve any product safety issues, and that she would review all future death inquires in GM vehicle crashes. In April 2014, Barra instituted the Speak Up program to encourage and recognize employees for contributing ideas to make GM vehicles safer, and for speaking up when they see something that could impact customer safety. GM asserts that these statements are irrelevant to Buchanan's claims because Barra was not involved in the Speak Up program at an operational or technical level and thus could not testify on how it functions on a day-to-day basis, and stated in her affidavit that she was not involved in the investigation of the SWAS in Marie's Trailblazer and had no knowledge of any issues relevant to this case.
"In the discovery context, courts should and ordinarily do interpret `relevant' very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation." Ewing v. Ewing, 333 Ga.App. 766, 768(1), 777 S.E.2d 56 (2015) (citation and punctuation omitted). Buchanan sought information concerning why GM had not remedied the alleged defect in the SWAS, which is relevant to its failure to warm and punitive damages claims. See, e.g., id. (evidence of alleged adultery relevant in divorce action). Further, the fact that Barra in her affidavit denied having knowledge of any issues relevant to this case does not demand that the protective order be granted, especially in light of her other statements. See Bridges v. 20th Century Travel, 149 Ga.App. 837, 838, 256 S.E.2d 102 (1979) (contention that individual at issue for motion for protective order had no knowledge of subject matter of suit "must obviously yield to the overriding policy of liberally construing the application of the discovery law"). There was evidence here to support the trial court's conclusion that the information Buchanan seeks is relevant and appears reasonably calculated to lead to the discovery of admissible evidence. See OCGA § 9-11-26(b)(1).
There was also evidence to support the trial court's conclusion that GM did not meet its burden of showing good cause for a protective order under OCGA § 9-11-26(c). "What 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." Harris v. Tenet Healthsystem Spalding, 322 Ga.App. 894, 901(3), 746 S.E.2d 618 (2013) (citations and punctuation omitted). GM argues only that the deposition would serve no other purpose than to harass Barra and subject GM to undue burden and expense because high-ranking executives should not be compelled to testify unless they have unique knowledge of the issues and the information cannot be obtained by other means. As we have explained however, there is no authority requiring that these factors be satisfied in order
"[T]he discovery procedure is to be construed liberally in favor of supplying a party with the facts," Bowden v. Medical Center, 297 Ga. 285, 291(2)(a), 773 S.E.2d 692 (2015) (citations, punctuation, and emphasis omitted), and "it is only in rare cases, based on good cause shown, that the trial court may refuse a deposition altogether." Osborne, supra. "Protective orders ... are intended to be protective — not prohibitive[.]" Id. (citations and punctuation omitted). Under the circumstances presented here, as there was evidence to support the trial court's ruling, we find no abuse of the court's discretion in denying GM's request for a protective order to prevent Barra's deposition.
2. GM and several amici urge this Court to apply the apex doctrine to prevent Barra's deposition.
Givens v. Newsom, 2021 U.S. Dist. LEXIS 3135, *12(B), 2021 WL 65878 (E.D. Cal. 2021) (citations and punctuation omitted); see In re Tylenol, 2014 U.S. Dist. LEXIS 89981, *7-8(III)(b), 2014 WL 3035791 (E.D. Pa. 2014). Some state courts and federal district courts, including district courts within the Eleventh Circuit, have applied the apex doctrine.
Judgment affirmed.
Colvin, J., concurs. Dillard, P. J., concurs fully and specially.
Dillard, Presiding Judge, concurring fully and specially.
Although I fully concur in the majority's thoughtful and well-reasoned opinion, I do sympathize 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 our state. Even so, I agree with the majority that our hands are tied. The Apex Doctrine may very well be a policy that Georgia should adopt, but it will have to be the General Assembly or our Supreme Court that does it. I am not in favor of fashioning such a doctrine out of wholecloth, no matter how desirable the underlying policy may be for Georgia's business environment. This issue is, to put it plainly, above our pay grade.
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