Atlanta, Ga. (May 22, 2024)- On May 1, 2023, Governor Brian Kemp signed Senate Bill 74 into law, amending O.C.G.A. 9-11-26 and adding a new section: 9-11-26.1. Read together, these new code sections amend the Georgia Civil Practice Act to codify and expand upon discovery protections available under common law to high-ranking corporate officers. O.C.G.A. 9-11-26.1(a) defines an "officer" as "a current or former high-ranking officer of an organization with unique and extensive scheduling demands or responsibilities." The same subsection defines an "organization" to include "any governmental entity and any other organization, public or private, that is large and complex."
These provisionsfunctionas Georgia's version of the "Apex Doctrine," which generally shields high-ranking corporate officers from having to sit for a deposition unless the opposing party demonstrates that it has pursued other less-intrusive means of discovery and can show that the officers possess unique information that cannot be gleaned from other sources.
Georgia law is now clear that good cause exists to prohibit a high-ranking corporate officer's deposition when the officer lacks unique personal knowledge of matters relevant to the subject matter involved in the pending action. See O.C.G.A. 9-11-26.1(b). Furthermore, if the "officer lacks unique personal knowledge of some, but fewer than all, matters relevant to the subject matter involving in the pending action, the court may limit the scope of the deposition accordingly, rather than prohibiting all together the deposition of the officer." See O.C.G.A. 9-11-26(e).
Accordingly, and based on the above, a party seeking a protective order under the Apex Doctrine has the burden of establishing the high-ranking corporate officer(s) lack unique personal knowledge; and the requested deposition should be prohibited or alternatively limited in scope. See O.C.G.A. 9-11-26.1(c). The party seeking the deposition can oppose a motion for protective order by showing they have "exhausted other reasonable means of discovery and such discovery is inadequate," and the deponent has "unique personal knowledge" relevant to the litigation. See O.C.G.A. 9-11-26.1(d).
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