The NAM filed an amicus brief urging the Georgia Supreme Court to review a decision permitting tort plaintiffs to depose GM's CEO, Mary Barra, despite the existence of less senior executives with far greater direct knowledge of the facts at issue in the case. The plaintiffs in this wrongful death suit allege that a product defect caused the decedent's crash. The trial court granted the plaintiff's demand to depose Barra based on general statements she made publicly and in congressional testimony about her efforts to advance GM's culture of safety, and the appellate court affirmed.
The NAM filed an amicus brief in support of GM’s petition for review by the Georgia Supreme Court. Our brief explains that subpoenaing a corporate executive who has no unique knowledge of a matter is often intended to generate an unwarranted litigation advantage, unconnected to the substantive merits of a case. The brief further argues that review of the trial court's order is critical for promoting responsible discovery and limiting discovery abuse. Many manufacturers, particularly those that have famous executives, have experienced this type of pressure tactic during litigation. Unless the Georgia Supreme Court adopts an “apex” doctrine or interprets the state’s discovery rules appropriately, manufacturers will remain unusually vulnerable to shady tactics in that state.
Unfortunately, on June 1, 2022, the Georgia Supreme Court did not adopt the apex doctrine. The Court did, however, hold that a trial court should consider the apex factors, if asserted, in determining whether good cause exists to issue a protective order and ordered the Court of Appeals to remand the case to the trial court for further consideration.