General Motors, LLC v. Buchanan

359 Ga.App. 412

858 S.E.2d 102

GENERAL MOTORS, LLC

v.BUCHANAN et al.

A21A0043

Court of Appeals of Georgia.

May 6, 2021

Certiorari Granted October 19, 2021

Holland & Knight, Laurie W. Daniel, Jonathan Spital ; Swift Currie McGhee & Hiers, C. Bradford Marsh, Myrece R. Johnson ; Lightfoot Franklin & White, Brian P. Kappel, for appellant.

The Cooper Firm, Lance A. Cooper, Patrick A. Dawson ; The Summerville Firm, J. Darren Summerville, Anna G. Cross, for appellees.

Smith Gambrell & Russell, Leah Ward Sears, Edward H. Wasmuth, Jr. ; Bryan Cave Leighton Paisner, William V. Custer IV, Christian J. Bromley ; Gilbert Harrell Summerford & Martin, Judson H. Turner ; Nelson Mullins Riley & Scarborough, Richard B North, Jr., Christopher S Polston, Steven H. Campbell ; Shook Hardy & Bacon, Anna S. Pieschel ; Beasley Allen Law Firm, Christopher D Glover ; Conley Griggs Partin, Cale Conley ; Warshauer Law Group, Lyle G. Warshauer ; Pen Law, Darren W. Penn, Kevin M. Ketner, amici curiae.

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.¹ For the following reasons, we affirm the trial's ruling and decline to apply the apex doctrine.

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.² She died from injuries sustained in the wreck. In May 2016, Marie's husband Robert Buchanan, individually and as administrator of her estate, filed suit against GM alleging that it was liable for Marie's death because of a defect in the Trailblazer and GM's failure to warn of the defect.³ Specifically, he alleged that the electronic stability control⁴ or StabiliTrak system did not engage to "prevent the vehicle from losing control and leaving the road." Buchanan alleged that a component of the StabiliTrak system, the steering wheel angle sensor ("SWAS"), failed, disabling StabiliTrak. Buchanan also sought punitive damages for GM's "fail[ure] to warn of a known defect" in its Trailblazers.

During discovery, Buchanan's counsel sent GM a request to depose its CEO, Mary Barra.⁵ The request noted that Barra " ‘led GM through a reckoning of its culture and safety practices’ " as a result of litigation involving a different GM vehicle defect; had "worked in Global Product Development and Global Manufacturing Engineering, both of which doubtless dealt with vehicle engineering development and safety"; and created the Speak Up for Safety ("Speak Up") program to "engender a ‘safety first’ culture," fix problems rather than merely identify them, and encourage follow-up so that GM's safety group would be held accountable. Buchanan's counsel asserted that Barra was "the only person who can speak to the issue of why GM has not acted and why the [Speak Up] Program has failed to remedy the defects in the SWAS, a part known to be present in some 770,000 GM vehicles." Counsel cited to the deposition of a GM product investigator who testified that the "warranty [claim] rate" of the SWAS was about 10 percent and that GM had over 73,711 warranty claims through July 2018, but GM's internal investigation left the matter "to be determined" and it was recommended that the investigation be closed "with no field action."

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.

After hearing argument from both counsel, the trial court concluded that Buchanan's attempt to depose Barra was a reasonably calculated attempt to discover evidence that might be admissible at trial. The court pointed to Barra's public statements during recent litigation regarding a different alleged vehicle defect, and other statements Barra made concerning "GM's safety culture and efforts to investigate and eliminate safety issues." The court found further that "there is no express or implied law in Georgia for the ‘apex doctrine’ or other framework that imposes presumptive hurdles to seeking discovery (or deposition testimony) from certain corporate individuals." The court concluded that GM did not show good cause for the issuance of the protective order and directed that the deposition of Barra "go forward at a mutually convenient date and time within forty-five (45) days of the date of this [o]rder, and the deposition shall be held in Detroit, Michigan. Excluding time spent on objections, the deposition is limited to 3 hours." We granted GM's application for interlocutory review, and this appeal followed.

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:

Upon motion by a party or by the person from whom discovery is sought and for good cause shown, the court in which the action is pending or, alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ...

(1) That the discovery not be had; [or]

(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place[.]

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.⁶ Smith v. Northside Hosp. , 347 Ga. App. 700, 703, 820 S.E.2d 758 (2018). "This is because a trial court has broad discretion to control all discovery matters. And as to protective orders, a trial court will only abuse its discretion when its ruling is unsupported by any evidence of record or when that ruling misstates or misapplies the relevant law." Id. (citations and punctuation omitted).

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 intrusive means.⁷ Certainly the court may consider a myriad of factors to determine whether GM showed good cause to protect Barra from annoyance, embarrassment, oppression, or undue burden or expense. However, neither Tankersley nor Wheeling-Culligan stand for the proposition that the trial court must consider these factors when resolving a motion for a protective order.⁸

Buchanan asserts that Barra's deposition testimony is reasonably calculated to lead to the discovery of admissible evidence to support his failure to warn and punitive damages claims.⁹ In particular, he claims that the testimony will help explain why the SWAS remained a problem "To Be Determined" following twelve years after the first sale of the 2007 Trailblazers and tens of thousands of warranty claims. And the trial court ruled that Barra's public statements during recent litigation involving a different alleged vehicle defect, and her statements about GM's safety culture and efforts to investigate and eliminate safety issues, justify her deposition to discover evidence that might be admissible at trial.

The parties do not dispute that Barra made the following statements in April and July 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...