• No Midnight Train To Georgia: Legal Defenses and Practical Solutions to Claimant's Request to Depose an Out-Of-State Adjuster
  • January 12, 2009 | Author: J. Benson Ward
  • Law Firm: Drew Eckl & Farnham, LLP - Atlanta Office
  • Partly thanks to the benefit of technological advances, it is now common for adjusters to handle workers’ compensation claims from separate parts of the country.  A Georgia claim might be handled by an adjuster outside of Atlanta, or by an adjuster working out of Lexington, Kentucky or Fargo, North Dakota.  In such claims handled by an adjuster outside of Georgia, an issue arises when an obstinate claimant’s counsel pushes for the deposition of the out-of-state adjuster to be held in Georgia.  When claimant’s attorney notices the deposition of a non-resident adjuster to be held in Georgia, Georgia law provides multiple restrictions on the demand and solutions to this issue, and Georgia statute clearly provides that such a non-resident witness who is not a party to the claim may not be required to attend a deposition anywhere other than the county in which the adjuster resides, does business, or received service of the subpoena.

    Discovery procedures and disputes in workers’ compensation cases are to be governed according to the Georgia Civil Practice Act, and so discovery rules and procedures in workers’ compensation cases will mirror those in ordinary civil cases.  O.C.G.A. § 34-9-102(d).  O.C.G.A. § 9-11-30 governs depositions in civil cases, and concerns basic procedural specifics of taking a deposition, including providing for when a deposition may be taken, necessary notice requirements, and deposing a corporate party.  O.C.G.A. § 9-11-30(b)(6) stipulates that a party may name a corporation as the deponent.  When this happens, the corporation then designates one or more agents or employees to testify on behalf of the corporation.

    On the other hand, should the claimant wish to take the deposition of a specific individual associated with the insurance company, he must issue a subpoena pursuant to O.C.G.A. § 9-11-45.  O.C.G.A. § 9-11-45(b) states that a person giving a deposition upon the receipt of a subpoena may not be required to attend an examination anywhere other than the county in which the person resides, does business, or received service of the subpoena.

    Georgia law briefly held that any non-resident could not be compelled to attend a deposition in Georgia.  Blanton v. Blanton, 259 Ga. 622, 385 S.E.2d 672 (1989).  In Blanton, the Supreme Court read the geographic limitation of O.C.G.A. § 9-11-45(b) to cover any person giving a deposition, not merely those to whom a subpoena had been directed.  Blanton, 259 Ga. at 623.  However, Blanton’s broad sweep was soon reined in when the Georgia Supreme Court reread the statute’s geographic limitation to include only those to whom a subpoena had been directed, and to thus exclude parties to the lawsuit.  Warehouse Home Furnishings Distributors, Inc. v. Davenport, 261 Ga. 853, 413 S.E.2d 195 (1992).  In Warehouse, the Court remanded a trial judge’s protective order prohibiting a defendant from compelling plaintiff, a Texas resident, to give a deposition in Georgia; the lower courts had deemed this order proper under Blanton.  Warehouse, 261 Ga. at 853-54.  The Court distinguished between a non-party, to whom a subpoena is issued and who is subject to O.C.G.A. § 9-11-45(b), and a party, to whom notice is issued and who is not covered by O.C.G.A. § 9-11-45(b)’s geographic limitations.  Warehouse, 261 Ga. at 854.

    Therefore, in light of Warehouse, the deposition of a non-resident employee of a defendant insurer, who is specified in a deposition notice, is governed by O.C.G.A. § 9-11-45(b) and thus would ordinarily take place within the county in which the employee resides or conducts business.  Older Georgia case law also generally follows the statute in refraining from requiring non-resident employees to appear in Georgia for a deposition.  See, Global Van Lines, Inc. v. Daniel Moving & Storage, Inc., 159 Ga. App. 124, 283 S.E.2d 56 (1981) (noting that depositions of officers or agents of defendant corporation generally must take place at corporation’s principal place of business); see also Callahan v. Georgia Power Company, 170 Ga. App. 588, 317 S.E.2d 588 (1984)(defendant who resided in Germany not compelled to give deposition in Atlanta).

    When claimant’s counsel remains insistent on attempting to depose a non-resident adjuster in Georgia, and serves notice, an appropriate response is to move the ALJ for a protective order pursuant to O.C.G.A. § 9-11-26(c).  Georgia courts have upheld protective orders precluding a party from requiring a non-resident party to give a deposition in the forum as opposed to the out-of-state place of residence or business.  See, e.g., Reams v. Composite State Board of Medical Examiners, 233 Ga. 742, 213 S.E.2d 640 (1975) (uphold protective order stipulating that plaintiff Board members be deposed in county of residence instead of forum county); Bicknell v. CBT Factors Corporation, 171 Ga. App. 897, 321 S.E.2d 383 (1984)(trial judge properly granted protective order preventing defendant from compelling New York corporate plaintiff to attend deposition in Georgia).

    In support of the motion for protective order, the insurer must present the Judge with evidence of hardships arising out of the claimant’s attempt to conduct the deposition in Georgia, including oppression, undue burden or expense.  Such factors include the distance between Georgia and the adjuster’s residence;  whether airplane travel is impractical;  the expense of flight, gasoline and hotel costs;  the forced time away from work necessary to travel to and from the deposition;  and any other specific circumstances which make the demand burdensome and unreasonable.  Furthermore, the protective order should rely upon O.C.G.A. § 9-11-45 and Georgia law holding that non-resident witnesses not party to the lawsuit may not be compelled to come to Georgia but should instead be subpoenaed for a deposition local to the witness.

    As a practical matter, if claimant’s attorney is insistent on deposing the adjuster, it is pragmatic to suggest alternatives to an in-person deposition, such as a telephone deposition or even a deposition taken through the use of real-time video.  However, there is no reason to concede and schedule the deposition of the non-resident adjuster in Georgia, and the law supports such a position.  Claimant’s counsel may either notice the deposition of the insurer as a party, pursuant to O.C.G.A. § 9-11-30, or serve a subpoena pursuant to O.C.G.A. § 9-11-45.  If the deposition notices the insurer, and the insurer then in turn designates the non-resident employee pursuant to O.C.G.A. § 9-11-30(b)(6), then it would be appropriate to move for a protective order under O.C.G.A. § 9-11-26(c) and/or insist the deposition be held in the state where the employee resides or where the insurance company has its principal place of business.  If the adjuster is served with a subpoena, then the deposition should take place in the county of his/her residence, and the adjuster cannot be compelled to travel to Georgia to attend a deposition.  It should be reassuring for an adjuster outside of the state to know that he or she may handle a Georgia claim without the concern of being dragged into the state to attend a deposition.