Opinion
A90A2107.
DECIDED FEBRUARY 26, 1991. REHEARING DENIED MARCH 12, 1991.
Motion for protective order. Laurens Superior Court. Before Judge Towson.
Arnall, Golden Gregory, Jeffery M. Smith, J. Randolph Evans, for appellant.
Westmoreland, Patterson Moseley, Thomas W. Herman, for appellee.
Jim Davenport brought suit in Georgia against his former employer, Warehouse Home Furnishings Distributors, Inc. ("Warehouse"), seeking to recover a bonus he alleged was due him. Warehouse scheduled a discovery deposition of Davenport in Georgia. Davenport, who had been a resident of Dublin, Georgia when he was employed by Warehouse, but was a resident of Texas at the time he filed suit, objected to being deposed in Georgia and filed a motion for a protective order. Davenport's motion was granted by the trial court, which certified its order for immediate review, and we granted Warehouse's application for interlocutory appeal.
The sole question presented by this appeal is whether a nonresident plaintiff may be compelled to give a deposition in Georgia when Georgia is the forum state. "A person who is to give a deposition may be required to attend an examination: (1) In the county wherein he resides or is employed or transacts his business in person; (2) In any county in which he is served with a subpoena while therein; or (3) At any place which is not more than 30 miles from the county seat of the county wherein the witness resides, is employed, or transacts his business in person." OCGA § 9-11-45 (b). Although it is true, as argued by appellant, that in Blanton v. Blanton, 259 Ga. 622 ( 385 S.E.2d 672) (1989), the Supreme Court refused to compel an out of state defendant to attend a deposition, the Supreme Court held there that OCGA § 9-11-45 (b) means exactly what it says, and, unlike the narrower federal rule, is directed and "intended to protect all those who give depositions." Id. at 623.
We agree with appellant and the trial court that this seems to create a rather harsh limit on discovery in this case and others like it. However, we are constrained by the language in the statute and the holding in Blanton to affirm the ruling of the trial court.
Judgment affirmed. McMurray, P. J., concurs. Carley, J., concurs specially.
DECIDED FEBRUARY 26, 1991 — REHEARING DENIED MARCH 12, 1991 — CERT. APPLIED FOR.
I reluctantly concur in the majority's affirmance of the ruling of the trial court. I join the majority in recognizing that this holding creates "a rather harsh limit on discovery in this case and others like it." However, as does the majority, I must bow to the broad language of the Supreme Court's majority opinion in Blanton v. Blanton, 259 Ga. 622, 623 ( 385 S.E.2d 672) (1989), holding that the legislature "intended to protect all those who give depositions... ."
The procedural posture of the case at bar differs from that of Blanton, and in the majority opinion in Blanton, the Supreme Court stated that "[t]he parties concede that there is no Georgia case law which controls this appeal." Accordingly, I believe that, factually, Blanton could be distinguished because there was existing Georgia case law which would apply to the facts in the present case, but not to those in Blanton. See Millholland v. Oglesby, 114 Ga. App. 745 (1) ( 152 S.E.2d 761) (1966) and Bicknell v. CBT Factors Corp., 171 Ga. App. 897 ( 321 S.E.2d 383) (1984). More importantly, in Reams v. Composite State Bd. of Med. Examiners, 233 Ga. 742, 743-744 ( 213 S.E.2d 640) (1975), the Supreme Court stated: "Ordinarily one who chooses a forum should be required to make himself available for examination in that forum. See Millholland v. Oglesby, [supra]. However, [Millholland] involved a plaintiff residing in Ohio who filed a personal injury suit in Fulton County and thereafter failed to appear in response to a notice of deposition. That case is distinguished from this case by its facts." (Emphasis supplied.)
However, the above quoted language from Blanton and the strong dissent of Justice Gregory, conceding that the Blanton majority opinion necessitated the overruling of Millholland and Bicknell, lead me to the reluctant conclusion that the Supreme Court intended that the Blanton holding apply to out-of-state plaintiffs as well as out-of-state defendants. This conclusion is mandated notwithstanding Reams' apparent approval of Millholland because to the extent that Blanton and Reams are inconsistent, we are bound to follow Blanton. Hall v. Hopper, 234 Ga. 625 ( 216 S.E.2d 839) (1975). Because of the binding precedential effect of the Supreme Court's ruling in Blanton, I must concur.