Good News for Corporate Defendants: Georgia Has Codified the Apex Doctrine.
Effective May 1, 2023, Georgia has codified the apex doctrine with passage of O.C.G.A. § 9-11-26.1 (the “Act”), titled “Protective order to prohibit deposition of an officer.”
The apex doctrine, as it is commonly known, is a framework of factors widely applied by federal and state courts across the nation to determine whether and when good cause exists to quash or protect high-ranking corporate executives from certain discovery, including depositions.
It has long been the law that Georgia courts had wide discretion to quash or protect a corporate officer from written discovery and deposition upon a showing of good cause, which typically involved a showing of annoyance, oppression, or undue burden or expense. See O.C.G.A. § 9-11-26(c). Last year, before the enactment of the Act, the Supreme Court of Georgia examined the issue but declined to formally adopt the apex factors. See General Motors, LLC v. Buchanan, 313 Ga. 811, 821, 823 (2022). Instead, the Court in Buchanan, without adopting the doctrine, held that Georgia courts “should” consider, among other factors, “whether the executive’s high rank, the executive’s lack of unique knowledge of relevant facts, and the availability of information from other sources demonstrate good cause for a protective order.” Id. at 811. The Act overrides Buchannan. Now, Georgia courts must apply these factors.
On May 1, 2023, Georgia’s Governor Kemp signed the Act into law as part of Senate Bill 74. Under the Act, a party may demonstrate “good cause to prohibit the deposition of an officer” with evidence that he or she (1) is or was a current or former high-ranking officer and (2) “lacks unique personal knowledge of any matter that is relevant to the subject matter” at issue. Id., § 9-11-26.1(a)(1) and (b).
This is an important step in Georgia’s continuing effort to advance tort reform. Although the General Assembly left room for courts to make certain discretionary and fact-specific determinations, the message from the legislature is clear: courts should routinely quash discovery from, and efforts to depose, high-ranking officers who do not have direct, unique, or superior personal knowledge of relevant facts.
This alert provides a general overview of recent legal developments. It is not intended and should not be relied upon as legal advice.