Bicknell v. CBT Factors Corp.

• Decision Date: 12 July 1984
• Docket Number: No. 68207,68207
• Citation: 171 Ga.App. 897,321 S.E.2d 383
• Parties: BICKNELL et al. v. CBT FACTORS CORPORATION et al.
• Court: Georgia Court of Appeals

Page 383

321 S.E.2d 383

171 Ga.App. 897

BICKNELL et al. v. CBT FACTORS CORPORATION et al.

No. 68207.

Court of Appeals of Georgia.

July 12, 1984.

Rehearing Denied Sept. 4, 1984.

James D. Patrick, Jr., Columbus, for appellants.

J. Michael Kaplan, Columbus, H. Burton Crews, Jonesboro, for appellees.

BIRDSONG, Judge.

We granted interlocutory appeal of the trial court's protective order in this case, to determine whether the trial court abused its discretion in requiring the Georgia resident defendants either to depose the New York corporate plaintiff's agent in New York or to pay the New York plaintiff's expenses and costs of coming to Georgia. Appellants Bicknell contend the trial court's order abridges their constitutional and procedural rights to defend themselves in their resident forum, and their right to require CBT Factors Corp. ("CBT") to appoint an agent to be deposed in Georgia.

The plaintiff CBT sued the Bicknells on an account factored to CBT by its assignor "Kay Winds." The suit is for $2,916.76 plus interest. CBT filed a request for admissions as to the verity of an itemized statement of account for goods delivered to the Bicknells which statement was attached to the request and filed in the record; CBT also filed similar interrogatories. The Bicknells denied the request for admissions, said the statement of account was incorrect, and denied the indebtedness.

Three months passed without the defendants seeking any discovery. On March 25, 1983, the plaintiff CBT filed a motion for summary judgment with supporting affidavit and set the hearing date for April 28. On March 28, the Bicknells filed a "notice to take deposition of designated agent," requesting CBT to appoint a corporate agent (OCGA § 9-11-30(b)(6)). The deposition notice requested CBT's agent to testify to all transactions and business records concerning time, dates, names and places, and the ordering, shipment and inspection of goods, truth in lending disclosures and all matters concerning the assignment of account from Kay Winds to CBT. The deposition was set to take place April 5 in Columbus, Georgia. On April 4, CBT filed a motion for protective order, contending its witness would be from out of state, the time of notice was too short, the notice was filed for delay only, and that the Bicknells had already had much opportunity to schedule depositions but had done so only after CBT's motion for summary judgment was filed.

The trial court held: "This Court pursuant to the decisions of Karp v. Friedman, Alpren and Green, 148 Ga.App. 204 ; and Global Van Lines, Inc. v. Daniel Moving and Storage, Inc., 159 Ga.App. 124 finds that discovery may be had by the Defendants only in the following manner:

"(a) By the use of Interrogatories, Request for Admissions directed to Plaintiff, Depositions on written questions and any other possible discovery and efforts allowable under the Civil Practice Act, but with the Court requiring that a deposition of an employee or designated agent of Plaintiff, a nonresident, can only be taken by the Defendants in Georgia if said Defendants shall pay the entire expense of said Plaintiff's employee, employees or designated agent to come to Georgia for the purpose of taking this deposition which would include travel, transportation, lodging and copying to be borne by said Defendants of any documents sought per Defendant's Notice to Produce; or in the alternative, if the Defendants seek a deposition of an employee, employees or designated agent of Plaintiff, then said deposition is to be taken in the offices of the Plaintiff outside the State of Georgia with the entire expense of the deposition including travel of Plaintiff's attorney and copying expense to be borne by Defendants.

"(b) The Defendants shall have ninety (90) days from the date of this Order to pursue any of the above enumerated methods of discovery according to the terms set out above." Held:

The trial court did not abuse its discretion in directing this order. See generally OCGA § 9-11-26(c). In Millholland v. Oglesby, 114 Ga.App. 745, 748, 152 S.E.2d 761, reversed on other grounds, 223 Ga. 230, we held: "Plaintiff objects to traveling from his home in Ohio to Atlanta for giving the deposition ... [I]n similar situations in federal courts ... it has been held many times that ordinarily one who chooses a forum should be required to make himself available for examination in that forum." We also held in Millholland, 114 Ga.App., at pp. 747-748, 152 S.E.2d 761, that the Georgia Civil Procedure Act was taken from the Federal Rules of Civil Procedure and "with slight immaterial variations its sections are substantially identical to corresponding rules. Because of this similarity it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts. [Cits.]" The plaintiff in Millholland was dismissed because he did not seek a protective order and show good cause for being relieved of the deposition; he simply failed to show up.

In this case, CBT did seek relief by protective order and the trial court in its discretion found that CBT showed good cause for relief. We do not disagree with that finding. In 4 Moore's Federal Practice & Procedure, § 26.70, it is noted that the federal civil procedure rules (like the Georgia rules) do not fix the exact place for the taking of a deposition. "Since the plaintiff has selected the place for trial, it is held that he may be called upon to present himself at that place for the taking of his deposition. This is not a fixed and inflexible rule, however, and it is within the discretion of the court to order that it be taken at some other place, often the place of his residence or business." (Emphasis supplied...