Trial Court Briefs

Full Text of Brief

STATE COURT of DEKALB COUNTY

STATE of GEORGIA

John Como,

Plaintiff

— versus —

The Emory Clinic, Inc.

Emory University

Sameh A. Labib, MD

Rohan A. Bhimani, MD

John/Jane Doe 1-10,

Defendants

Civil Action

File No. 24A06380

Hon. Kimberly A. Alexander

PLAINTIFFS’ RESPONSE TO

DEFENDANTS’ MOTION TO QUASH OR IN THE ALTERNATIVE MOTION FOR PROTECTIVE ORDER

TABLE OF CONTENTS

SUMMARY OF ARGUMENT 4

FACTUAL BACKGROUND & ISSUES FOR DR. BARITEAU 7

Facts of the Case 7

Issues for Dr. Bariteau 9

Administrative Issues 9

Patient-Care Policy Issues 10

Plaintiff’s Efforts to Identify Witnesses 10

Seeking Dr. Bariteau’s Deposition 11

LEGAL PRINCIPLES 11

1. Georgia law favors broad discovery — extending even to inadmissible evidence so long as it is reasonably likely to lead to other evidence that is admissible. 11

2. Discovery may be limited only as provided by statute. 12

3. The limited “apex” rule of OCGA 9-11-26.1 applies only to high-ranking “officers” of organizations. It does not apply to non-officers. And in Georgia, unambiguous statutes are applied according to their plain meaning. 12

4. On a motion for a protective order, the party seeking the discovery must show its relevance. After that, the burden is on the party seeking a protective order. 13

5. The threshold for relevance at the discovery stage is very low. 13

6. Protective orders require evidence. 13

7. Unsworn statements by a lawyer without personal knowledge are not evidence. 14

8. A protective order requires specific facts, not conclusory assertions. 14

9. All discovery is burdensome and annoying. “Undue burden” or “oppression” consists of an unusual burden that substantially outweighs a party’s interest in the discovery. 15

10. A witness’s claim of ignorance does not by itself shield the witness from a deposition. 15

11. Protective orders should not be entered when the effect is to frustrate and prevent legitimate discovery. 16

12. Outright denial of a deposition is rare and likely to constitute an abuse of discretion. 16

13. The availability of one form of discovery does not prohibit the use of another form of discovery. One party does not get to dictate another party’s discovery strategy. 17

ARGUMENT 17

1. A deposition of Dr. Bariteau is relevant and presumptively allowed. 18

2. The Defense’s preference for a 30(b)(6) deposition is not a basis for a protective order or for quashing the subpoena. 19

3. The “apex doctrine” and OCGA 9-11-26.1 do not apply here. They provide no authority to limit or prohibit this deposition. 20

4. The Defense has not met their burden of proving undue burden, unreasonableness, or oppression. 22

CONCLUSION 23

“[I]t is only in rare cases … that the trial court may refuse a deposition altogether.”

— General Motors v. Buchanan, 359 Ga. App. 412 (2021)

SUMMARY OF ARGUMENT

Prohibiting a deposition is a big deal. Our Supreme Court recently quoted the Fifth Circuit’s statement that, “It is very unusual for a court to prohibit the taking of a deposition altogether, and absent extraordinary circumstances such an order would likely be in error.” The Civil Practice Act provides broad civil discovery and authorizes courts to limit it only when given evidence — evidence — that it is being abused. Here, the Defense gives the Court zero evidence. The witness at issue, Dr. Bariteau, provides no affidavit. It’s not even Dr. Bariteau’s motion. The Defense lawyers do not claim to represent him. They don’t say they spoke to him. For all the Court knows, Dr. Bariteau does not personally object to a deposition. Prohibition of a deposition on this record is a non-starter.

As for what the Defense does say: They offer unsworn assertions by lawyers with no personal knowledge of the purported facts. Those assertions mislead the Court — or would if the assertions were not so obviously false. The Defense says the witness has no relevant knowledge. That is surely untrue. This case involves a claim of negligent healthcare administration. The witness holds an administrative position. He surely has significant knowledge of administrative issues. And if he doesn’t, that, too, is relevant because it underscores the negligence of the administrators. As for the “oppression” and undue burden that a deposition would impose, the Defense says only two things: First, they say deposing an individual would “circumvent the procedural safeguards of Rule 30(b)(6).” That’s not an objection. Second, they say a deposition “would be disruptive to patient care and continuity of treatment.” That is easily solved. We’ll schedule the deposition for a day when he’s not seeing patients. That has never been hard. There is no lawful basis to prohibit this deposition.

———

This case involves two causes of action: (a) negligent administration and (b) medical malpractice. Plaintiff’s interrogatories asked the Defense to identify the individuals with knowledge relevant to the negligent administration claim. The Defense answer was to look at the documents they produced. But the documents identify no such individuals. In response to a different interrogatory, about the chain of command, they identified only one person — Dr. Jason Bariteau, Chief of Foot and Ankle surgery. Taken at face value, the Defense’s discovery responses mean that apart from the individual Defendants themselves, Dr. Bariteau is the only person in Emory University or The Emory Clinic with knowledge of administrative issues relevant to Plaintiff’s negligent administration claim. That cannot be true, but that’s the implication of what they said, under oath.

By virtue of his administrative position, Dr. Bariteau would likely have knowledge of how policies and protocols are disseminated and enforced; how medical errors are identified and responded to; and the extent to which the corporate Defendants create either a culture of safety or an inappropriately permissive environment that promotes medical error.

Plaintiff sought Dr. Bariteau’s deposition. A deposition of such a witness is routine. But the Defense said Plaintiff could only take a 30(b)(6) deposition. It’s obvious why the Defense would prefer a 30(b)(6) deposition. It would allow the Defense to pick the testifying witness. It would require Plaintiff to give the Defense something like an outline of the questions. It would also create delay through motion practice. (In 20 years of practice, Plaintiff’s counsel has never encountered a 30(b)(6) notice that did not lead to a motion for a protective order. If the Court were to prohibit a deposition of Dr. Bariteau, the next item up would be another motion for protective order over the 30(b)(6) notice.) In any event, the Defense does not get to choose Plaintiff’s deposition strategy.

“The extent of discovery and use of protective orders is generally within the discretion of the trial judge. However, this must be a sound and legal discretion based on evidence and a showing of good cause.” Clayton County v. Lake Spivey, 207 Ga. App. 693 (1993).

The Defense motion fails immediately, because the Defense submits no evidence. Furthermore, the Defense bears the burden of showing that a deposition of Dr. Bariteau would be unreasonable, oppressive, and unduly burdensome. Even if their assertions were supported by evidence (which they are not), the assertions would not come close to that standard.

The Defense therefore relies heavily on the “apex doctrine” embodied in the recently-adopted OCGA 9-11-26.1. This argument, too, fails at every step. First, the statute applies only to a “high-ranking officer of an organization.” The Defense admits that “Dr. Bariteau is not a corporate executive.” (Motion, pg. 4.) He is not an “officer” at all, much less a high-ranking one. That admission renders the statute inapplicable. Second, even if the statute did apply, it would not shield Dr. Bariteau from a deposition. The statute permits depositions even of high-ranking officers if they have unique personal knowledge relevant to the case. Here, Dr. Bariteau is the sole witness the Defense has identified who has knowledge of the administrative issues in this case. According to the Defendants’ sworn interrogatory responses, Dr. Bariteau is the only person in the organization who has this knowledge.

The Defense seeks to prevent an ordinary deposition of a fact witness. The Defense does not cite a single case in which any court, anywhere in the country has prohibited a deposition in circumstances like this. The Defense seems to rely on a notion that the Court has unlimited discretion to prohibit depositions (and a hope that the Court wants to prohibit this one). But judicial discretion is always a legal discretion: It must be based on, and is constrained by, (i) actual legal authority and (ii) the facts as shown by evidence. The Defense offers the Court no evidence to establish even the inadequate facts they assert, and the Defense points the Court no law that would authorize a prohibition of this deposition. The Defense invites the Court to abuse its discretion. Defendants are rarely shy about leading courts into reversible error that will create extra work and further delay the case. The Court should decline the invitation.

FACTUAL BACKGROUND & ISSUES FOR DR. BARITEAU

Facts of the Case

This case involves two causes of action: (i) ordinary negligence (negligent administration) and (ii) professional malpractice.

In 2018, John Como underwent a left total ankle replacement. Defendant Dr. Sameh Labib implanted the device. On April 7, 2022, the manufacturer issued an “Urgent Medical Device Correction” letter concerning the implant. The letter warned surgeons to “closely monitor” patients for bone loss caused by the implant. Emory sent John a letter about this recall in April.

In November 2022, John was having pain in his ankle. He saw Dr. Labib to see if his ankle replacement was causing problems. Dr. Labib took an X-ray of John’s left foot. It showed a large bone-destroying lesion right below the implant. Despite this, Dr. Labib said nothing and did nothing about the lesion. He did, however, propose surgery for a bone spur — an unrelated issue.

During surgery for the bone spur on November 14, 2022, Dr. Labib took additional X-rays, which again showed the large bone-destroying lesion. But again Dr. Labib said nothing and did nothing about it. On January 19, 2023, Dr. Labib obtained another X-ray during an office visit, yet again it showed the lesion, and yet again he said nothing and did nothing.

On April 18, 2023, Dr. Rohan Bhimani reviewed and reported on the November 8, 2022, X-ray. He did not mention the lesion or follow up on it with Dr. Labib. A couple weeks later, on May 2, 2023, Dr. Bhimani reviewed and reported on the January 19, 2023, X-ray, and again did not mention the lesion or follow up.

In May 2024, approximately a year and a half after the initial X-ray in November 2022, John contacted Dr. Labib’s office due to pain in his foot. A new X-ray on May 13, 2024, showed the lesion again — much bigger now. Dr. Labib finally identified the lesion, which now posed a difficult surgical problem.

John sought opinions from other orthopedic surgeons, Dr. Fred Finney and Dr. James Ficke. A CT scan in July 2024, revealed the lesion had approximately doubled in size from 2022 to 2024. Ultimately, in October 2024, Dr. Ficke performed surgery on John — a surgery larger and more complicated because of the size of the lesion.

———

The failures by Drs. Labib and Bhimani might have seemed like a series of inexplicable misses, but in their interrogatory answers, they testify under oath that they saw the lesion and intentionally said nothing and did nothing about it. (Ex. 5, Responses 22, 24; Ex. 6, Responses 22, 23, 24.)

Under the circumstances, simply failing to see the lesion beneath the implant was negligent. Intentionally ignoring it is all the worse. Yet all four Defendants — including the two Emory companies — say everything was fine. They’re aware of no errors; they took no corrective actions. As far as Emory is concerned, Drs. Labib and Bhimani provided good care. (Ex. 3 & 4, Responses 1-3.) This indicates that these Emory companies fostered a culture of neglect in which poor care — even intentionally poor care — is tolerated.

Issues for Dr. Bariteau

As Chief of Foot and Ankle Orthopedic Surgery, Dr. Bariteau is well-positioned to address multiple aspects of the core administrative failure — the creation of an inappropriately permissive environment in which grossly negligent care is tolerated. Additionally, Dr. Bariteau will be able to discuss the policies, protocols, and general practices related to various medical issues. And if Dr. Bariteau — as the Chief of Foot and Ankle Orthopedic Surgery — is not knowledgeable on any of these issues, then that is equally relevant because it would be further evidence of administrative negligence. These are some of the relevant issues Dr. Bariteau can likely address:

Administrative Issues

Patient-Safety Culture & Systems

• Organizational commitment to patient safety and leadership oversight

• Systems and processes for error prevention, detection, and correction

o Culture of reporting errors

o Investigation and analysis of errors

• Transparency and disclosure of errors

• Tolerance or intolerance for poor care

General Clinical Policies & Protocols

• Workload management to prevent overwork or burnout

• Clinician communication protocols

• Patient communication protocols

• Policies and protocols related to medical devices and recalls

Patient-Care Policy Issues

• Policies and protocols concerning monitoring asymptomatic lesions

• Policies and protocols concerning disclosure to patients of potential risks

• Policies and protocols concerning reporting asymptomatic lesions on X-ray reports.

These do not exhaust the issues on which Dr. Bariteau likely has relevant knowledge.

Plaintiff’s Efforts to Identify Witnesses

Through interrogatories, Plaintiff asked the corporate Defendants to identify witnesses directly involved in their patient-safety functions. (Ex. 2, Rog 10.) Those individuals would likely have information important to the negligent-administration claim. In their sworn, verified responses, the corporate Defendants provided no names. Instead, they referred to their document productions. (Ex. 3 & 4, Response 10.) The documents provided no names, either. (Holloway Affidavit, ¶ 8.)

Plaintiff also asked for the name of each person in the chain of command of the individual defendants. (Ex. 2, Rog 14.) It took three tries, but eventually the individual defendants gave meaningful but still incomplete answers. They each gave only a single name. Defendant Dr. Bhimani named Defendant Dr. Labib. Defendant Dr. Labib named Dr. Jason Bariteau. (Exs. 5 & 6, Response 14.)

According to the Defendants’ interrogatory answers, apart from the Defendants themselves, there is only a single person with knowledge of the administrative issues in the case — Dr. Jason Bariteau.

Seeking Dr. Bariteau’s Deposition

After the Defendants identified Dr. Bariteau, Plaintiff sought his deposition. The Defense said No. They would agree to a 30(b)(6) deposition on administrative topics. After multiple attempts to resolve the dispute, Plaintiff served a notice of deposition and subpoena for Dr. Bariteau’s deposition. Since the Defense would not cooperate in scheduling, Plaintiff chose the deposition date but offered to reschedule it at the convenience of Dr. Bariteau and Defense counsel.

LEGAL PRINCIPLES

The Defense motion betrays either a lack of awareness or a disregard of basic legal principles. So we lay out the basic principles here. Most are simple, and most should be obvious, so we provide citations but avoid unnecessary discussion.

1. Georgia law favors broad discovery — extending even to inadmissible evidence so long as it is reasonably likely to lead to other evidence that is admissible.

• OCGA 9-11-26(b)

• General Motors v. Buchanan, 313 Ga. 811, 814-15 (2022).

2. Discovery may be limited only as provided by statute.

The Civil Practice Act fully occupies the field of discovery law. The CPA leaves no room for an unbounded, free-ranging discretion by courts. OCGA 9-11-26(b) creates a broad entitlement to discovery. Then § 26(c) and other statutes provide the grounds on which courts can limit discovery. The Supreme Court in Buchanan recognized this principle by rejecting the notion of a judicially-created “apex doctrine,” holding that in considering protective orders, “courts applying Georgia law should rely on the overarching dictates of OCGA § 9-11-26(c),” and deferring to the legislature for any additional authority. See 313 Ga. at 821, 824-25.

3. The limited “apex” rule of OCGA 9-11-26.1 applies only to high-ranking “officers” of organizations. It does not apply to non-officers. And in Georgia, unambiguous statutes are applied according to their plain meaning.

• OCGA 9-11-26.1 (“As used in this Code section, the term [] “Officer” means a current or former high-ranking officer of an organization with unique and extensive scheduling demands or responsibilities. … Good cause for a protective order to prohibit the deposition of an officer may be shown by proof that such person is an officer and lacks unique personal knowledge of any matter that is relevant to the subject matter involved in the pending action.”)

• Turner v. Ga. River Network, 297 Ga. 306 (2015) (“The golden rule of statutory construction requires us to follow the literal language of the statute unless it produces contradiction, absurdity, or such an inconvenience as to [e]nsure that the legislature meant something else.”)

4. On a motion for a protective order, the party seeking the discovery must show its relevance. After that, the burden is on the party seeking a protective order.

• Bazemore v. State, 233 Ga. App. 892 (1998) (“When a motion to quash is filed, the party serving the subpoena has the initial burden of showing the documents sought are relevant. If that is done, the party moving to quash has the burden of showing that the subpoena is unreasonable and oppressive.”)

• General Motors v. Buchanan, 313 Ga. 811 (2022) (“The movant bears the burden of showing her entitlement to a protective order under [OCGA 9-11-26(c)].”

5. The threshold for relevance at the discovery stage is very low.

• General Motors v. Buchanan, 313 Ga. 811 (2022) (“Trial courts should and ordinarily do interpret ‘relevant’ very broadly so as to remove the potential for secrecy and to reduce the element of surprise at trial.”)

6. Protective orders require evidence.

• General Motors v. Buchanan, 313 Ga. 811 (2022) (“…a trial court must consider whether the movant’s arguments (and evidence presented in support of such arguments) constitute good cause…”)

• Revels v. Hair, 260 Ga. 889 (1991) (“Appellee presented no evidence in support of his motion for a protective order. The order granting that motion, and precluding appellants from taking appellees’ oral deposition, has no support in law or fact and is vacated.”)

• Moses v. Jordan, 310 Ga. App. 637 (2011) (“However, this must be a sound and legal discretion based on evidence and a showing of good cause.”)

• Smith v. Northside Hospital, 347 Ga. App. 700 (2018) (“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.”).

7. Unsworn statements by a lawyer without personal knowledge are not evidence.

• OCGA 24-1-2 (“The rules of evidence shall apply generally to all nonjury trials and other fact-finding proceedings of any court in this state subject to the limitations set forth in subsections (c) and (d) of this Code section.”)

• OCGA 24-6-602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of such matter.”)

• Bhandari v. Altisource, 2024 Ga. Super. LEXIS 5072 (Fulton County Superior Court) (“In support of their motion, Defendants argue, ‘Ms. Esterman has no unique or superior knowledge that cannot be obtained through less intrusive means...’ However, Defendants do not provide evidentiary support demonstrating that Ms. Esterman lacks unique personal knowledge. Defendants have accordingly failed to meet their burden under the statute to show cause for issuance of a protective order to prevent the deposition.”)

• SmartPath v. Mahbod, 2021 Ga. Super. LEXIS 3403 (DeKalb County Superior Court) (“because the documentation provided by Defendant is not conclusive as to whether there were means upon which Defendant could have engaged in the misconduct using Truist devices, and Defendant did not submit any affidavit from Truist or an expert in support of Defendant’s position.”)

8. A protective order requires specific facts, not conclusory assertions.

• General Motors v. Buchanan, 313 Ga. 811 (2022) (“to justify a protective order, one or more of the statutorily enumerated harms must be established through a specific demonstration of fact, as opposed to stereotyped and conclusory statements about, for example, the position in the corporate hierarchy held by the prospective deponent or the size and complexity of the organization.”)

• Caldwell v. Church, 341 Ga. App. 852 (2017) (“mere conclusory statements, bereft of facts will not support the imposition of limitations on civil discovery.”)

• Young v. Jones, 149 Ga. App. 819 (1979) (“Good cause for the issuance of a protective order designed to frustrate discovery must be clearly demonstrated. Such cause necessarily is not established by stereotyped or conclusional statements, bereft of facts.”).

9. All discovery is burdensome and annoying. “Undue burden” or “oppression” consists of an unusual burden that substantially outweighs a party’s interest in the discovery.

• General Motors v. Buchanan, 313 Ga. 811 (2022) (“[I]t is not mere ‘busyness’ that warrants a protective order. We live in a busy world.”)

• Sorrells v. Cole, 111 Ga. App. 136 (1965) (“The single fact that the answering of the interrogatories will entail expense and trouble to the witness or his employer is not sufficient to escape the requirement of making answer.”)

• Sams v. GA West Gate, 316 FRD 693 (ND Ga. 2016) (“A mere showing of burden and expense is not enough.”)

• Medernix v. Snowden, 372 Ga. App. 48 (2024) (“the trial court must balance the requesting party’s specific need for the material against the harm that would result by its disclosure.”)

• In re Callaway, 212 Ga. App. 500 (1994) (“The trial court in its discretion balances the right of a party to obtain discovery and the right of individuals to be protected from unduly burdensome or oppressive inquiries.”)

• Winkler v. Wells Fargo, 2025 U.S. Dist. LEXIS 44665 (D. Nev. Mar. 11, 2025) (“Protection from discovery does not flow from a finding of cost or inconvenience, which is inherent in all discovery, but from a finding that the cost or inconvenience is undue when weighed against the likely benefit of the discovery.”).

10. A witness’s claim of ignorance does not by itself shield the witness from a deposition.

• General Motors v. Buchanan, 313 Ga. 811 (2022) (“Very often, discovery is sought to uncover what witnesses do or do not know and to reveal inconsistencies between witnesses. See, e.g., Flower v. T.R.A. Indus., Inc., 111 P3d 1192, 1206 (Wash. App. 2005) (“[C]laimed lack of knowledge does not provide sufficient grounds for a protective order [as] the other side is allowed to test this claim by deposing the witness.”); Kuwait Airways Corp. v. American Security Bank, N.A., No. 86-2542, 1987 WL 11994, at *2 (D. D.C. May 26, 1987) (“The reason why [the Chairman’s] alleged lack of knowledge is not a sufficient ground to prevent a deposition is obvious. The very purpose of the deposition discovery is to test the extent of the deponent’s knowledge and claims of ignorance.”); Travelers Rental Co. v. Ford Motor Co., 116 FRD 140, 143 (D. Mass. 1987) (“The plaintiff is entitled to ‘test’ the claim of lack of knowledge or lack of recollection by deposing the witness.”).”)

11. Protective orders should not be entered when the effect is to frustrate and prevent legitimate discovery.

• Ewing v. Ewing, 333 Ga. App. 766 (2015) (“Protective orders, however, should not be awarded when the effect is to frustrate and prevent legitimate discovery.”)

• Moses v. Jordan, 310 Ga. App. 637 (2011) (“While it is true that a trial court has broad discretion with regard to entering discovery orders, this discretion must be based on sound legal analysis with an eye to promoting the purpose of discovery and limiting its abuse. Discovery should not be prohibited where the effect is to frustrate that purpose and prevent legitimate discovery.”)

12. Outright denial of a deposition is rare and likely to constitute an abuse of discretion.

• General Motors v. Buchanan, 313 Ga. 811 (2022) (“[I]t is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error.”) (quoting Salter v. Upjohn, 593 F2d 649 (5th Cir. 1979))

• General Motors v. Buchanan, 359 Ga. App. 412 (2021) (“[T]he discovery procedure is to be construed liberally in favor of supplying a party with the facts, and it is only in rare cases, based on good cause shown, that the trial court may refuse a deposition altogether.”)

• Osborne v. Bank of Delight, 173 Ga. App. 322 (1985) (“The trial court is authorized pursuant to O.C.G.A. §§ 9-11-26 (c) and 30 (d) to control the details of time, place, scope and financing for the protection of the deponents and parties, and it is only in rare cases, based on good cause shown, that the trial court may refuse a deposition altogether.”)

• Wooten v. LaSalle, 2024 US Dist LEXIS 224457 (MD Ga. Dec. 11, 2024) (“However, it is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error.”).

13. The availability of one form of discovery does not prohibit the use of another form of discovery. One party does not get to dictate another party’s discovery strategy.

• OCGA 9-11-26(a) (“Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under subsection (c) of this Code section, the frequency of use of these methods is not limited.”)

• OCGA 9-11-26(c) (basis for protective order does not include the availability of other forms of discovery)

• General Motors v. Buchanan, 313 Ga. 811 (2022) (“With respect to the discovery rules, we have said that the availability of one form of proof does not make other forms of proof irrelevant.”)

• Galbreath v. Braley, 318 Ga. App. 111 (2012) (“the courts of this State have long recognized the overriding policy of liberally construing the application of the discovery law. To hold otherwise would be to give every litigant an effective veto of his adversaries’ attempts at discovery.”)

• Irvington-Moore v. Superior Court, 14 Cal. App. 4th 733 (1993) (“the selection of the method of discovery to be utilized is to be made by the party seeking discovery. It cannot be dictated by the opposing party.”)

ARGUMENT

With the basic facts and legal principles in place, the Defense motion practically denies itself.

1. A deposition of Dr. Bariteau is relevant and presumptively allowed.

Given the issues in the case, it is highly likely that Dr. Bariteau has knowledge of multiple administrative issues relevant here — concerning patient-safety efforts and clinical policies & protocols. The deposition is therefore presumptively allowed. See OCGA 9-11-26(b).

The Defense repeatedly says Dr. Bariteau has no information, but this assertion is empty and unavailing. First, even if Dr. Bariteau really were ignorant of the administrative issues in the case, that ignorance itself would be relevant because it would tend to show negligent administration. As our Supreme Court noted in Buchanan, “Claimed lack of knowledge does not provide sufficient grounds for a protective order ….” 313 Ga. at 824.

Second, there is no evidence before the Court to show that Dr. Bariteau is ignorant on all relevant matters. The Court has only the unsworn representations of the Defense lawyers — who do not claim to have any personal knowledge of what Dr. Bariteau does and does not know. Furthermore, in discussing the issue, the Defense lawyers betray no understanding of the administrative issues in the case. Instead, they say “Dr. Bariteau did not treat or evaluate Mr. Como, was not consulted during his care, and has no personal knowledge of the events underlying the Complaint.” (Motion, pg. 2.) Whether they forgot about the administrative claim, don’t understand it, or seek to mislead the Court, this omission renders the lawyer’s representations meaningless. The lawyers’ statements are not evidence. A protective order based on them would be an abuse of discretion. See Legal Principles 6-7 above.

Third, even if Dr. Bariteau had submitted an affidavit (which he did not), a broad, conclusory statement that he doesn’t know anything would be meaningless, because it would assume that Dr. Bariteau understands Plaintiff’s theory of the case and can identify every relevant issue. See Legal Principle 8 above. To mean anything at all, Dr. Bariteau would have to file an affidavit addressing each potentially relevant issue and claim ignorance as to every one of them. (But again, even that total ignorance would be relevant, so it still would not support a protective order.)

One way or the other, however much or little ignorance Dr. Bariteau may claim, his testimony is relevant and his deposition is presumptively allowed.

2. The Defense’s preference for a 30(b)(6) deposition is not a basis for a protective order or for quashing the subpoena.

The Defense’s first asserted basis for a protective order is legally irrelevant. They want Plaintiff to take a 30(b)(6) deposition instead of an individual deposition:

(Motion, pg. 1.) The Defense’s preference for Plaintiff’s discovery strategy has no relevance to the standard for a protective order under OCGA 9-11-26(c). That standard is “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” As discussed above (see legal point 9), all discovery is burdensome and annoying. “Undue burden” or “oppression” consists of an unusual burden that substantially outweighs a party’s interest in the discovery. See Legal Principle 9. The Defense’s preferences for Plaintiff’s discovery strategy do not figure into that standard. The relevant factors do not include the availability of another form of discovery. They do not include the Defendants’ wishes about who Plaintiff deposes.

The same is true of the standards for quashing a subpoena pursuant to OCGA 9-11-45(a)(1(C) or OCGA 24-13-23. Under both statutes, the Defense must show that the subpoena is “unreasonable and oppressive.” Again, the Defense’s preference are irrelevant to that standard.

The Defense cites no law supporting the notion that a court can prohibit a deposition of an individual on the ground that the opposing party would prefer a different type of deposition. There is no such law.

The Defense says they’re worried about a deposition veering into irrelevant matter. (Motion, pg. 1.) But that concern exists in every deposition. And if it happens and becomes abusive, OCGA 9-11-30(d) allows for a motion to terminate the deposition. The Defense’s professed fear of irrelevant questions does not support a protective order. The Defense’s first basis does not support a protective order. It invites to reversible error.

3. The “apex doctrine” and OCGA 9-11-26.1 do not apply here. They provide no authority to limit or prohibit this deposition.

The Defense relies mostly on the “apex doctrine.” The Defense invites the Court to abuse its discretion by relying on a misstatement of the law.

First, by its plain terms, OCGA 9-11-26.1 does not apply here. It applies only to a “high-ranking officer of an organization.” Georgia’s is a textualist judicial system. We take the words of statutes seriously and apply them literally, unless doing so would plainly contravene the intent of the legislature. See Turner v. Ga. River Network, 297 Ga. 306 (2015) (“The golden rule of statutory construction requires us to follow the literal language of the statute unless it produces contradiction, absurdity, or such an inconvenience as to [e]nsure that the legislature meant something else.”).

There is no evidence before the Court that Dr. Bariteau is any officer at all, much less a high-ranking one. To the contrary, the Defense seems to concede he is not:

(Motion, pg. 4.) So the statute does not apply. A protective order under authority of this statute would be reversible error.

Second, beyond the statute, there is no “apex doctrine” in Georgia law. Under the ordinary standards for a protective order, trial courts may consider any relevant factors. That may well include the demands on a witness’s time and any other factor that might make a deposition a burden. See General Motors v. Buchanan, 313 Ga. 811 (2022):

We conclude that, to the extent these factors are asserted by a party seeking a protective order, a trial court should consider whether the executive’s high rank, the executive’s lack of unique personal knowledge of relevant facts, and the availability of information from other sources demonstrate good cause for a protective order under OCGA § 9-11-26(c). However, we decline to hold that a trial court must find that good cause is presumptively or conclusively established in each instance that a movant has demonstrated that an executive is “sufficiently high-ranking” and lacks unique personal knowledge of discoverable information not available through other means.

The statute, OCGA 9-11-26.1, does not apply. Besides that, the “apex doctrine” just points back to the ordinary standards for protective orders. So the “apex doctrine” and OCGA 9-11-26.1 provide no authority to limit or prohibit a deposition of Dr. Bariteau. (And as we discuss next, the Defense provides neither evidence nor even specific representations about burden-related factors concerning Dr. Bariteau.) An order prohibiting the deposition under authority of § 26.1 or the “apex doctrine” would be an abuse of discretion.

4. The Defense has not met their burden of proving undue burden, unreasonableness, or oppression.

Finally, the Defense has not met their burden for a protective order under OCGA § 9-11-26(c) or an order quashing a subpoena under § 9-11-45 or § 24-13-23. First, they haven’t met their burden because they haven’t presented any evidence. They present only unsworn statements by lawyers with no personal knowledge. That’s not evidence.

Second, even if the lawyers’ statements counted as evidence (which they don’t), they say nothing to show undue burden or oppression. The Defense offers these asserted grounds:

i. They’d rather put up a 30(b)(6) witness.

ii. Dr. Bariteau supposedly has no relevant information. (This is untrue, as discussed above.)

iii. Dr. Bariteau is the Chief of Foot & Ankle Surgery at “Emory.”

iv. A deposition would be “disruptive to patient care and continuity of treatment.”

None of this, individually or together, establishes undue burden or oppression.

Factor (i) is wholly irrelevant.

So is Factor (ii), since our Supreme Court recognizes that “Claimed lack of knowledge does not provide sufficient grounds for a protective order as the other side is allowed to test this claim by deposing the witness.” 313 Ga. at 824.

Factor (iii) has been specifically disapproved by the Supreme Court. In Buchanan, the Court instructed Georgia courts not to rely on “stereotyped and conclusory statements about, for example, the position in the corporate hierarchy held by the prospective deponent.” 313 Ga. at 821.

And Factor (iv) is both conclusory and frivolous. We’ll schedule Dr. Bariteau’s deposition for a day when he’s not seeing patients. A Saturday, if necessary. After hours, if necessary. How will that be “disruptive to patient care and continuity of treatment”? The Defense gives no answer because there is none to give.

The Defense has not met their burden for a protective order or an order quashing Dr. Bariteau’s deposition. At bottom, the Defense just tells the Court that they would very much like to choose which witnesses Plaintiff deposes, and they’d like the Court to do them the favor of ordering that, without evidence and in disregard of the controlling law. The motion should be denied.

CONCLUSION

The Defense either did not bother to research the relevant law before filing their motion, or they knew the law and disregarded it. Either way, they filed a frivolous motion that has cost Plaintiff’s counsel and the Court considerable effort. The motion should be denied.

July 14, 2025

Respectfully submitted,

/s/ Daniel E. Holloway

Georgia Bar No. 658026

DEH Law

2062 Promise Road, Unit 1305

Rapid City, SD 57701

(404) 670-6227

dan@dehlegal.com

Attorney for Plaintiff

CERTIFICATE OF SERVICE

The undersigned has served the foregoing document on all counsel of record, by filing the document with the Court’s efiling system.

July 14, 2025

Respectfully submitted,

/s/ Daniel E. Holloway

Georgia Bar No. 658026