Warehouse Home Furnishings Distributors, Inc. v. Davenport, A90A2107

• Decision Date: 26 February 1991
• Docket Number: No. A90A2107,A90A2107
• Citation: 199 Ga.App. 33,403 S.E.2d 850
• Parties: WAREHOUSE HOME FURNISHINGS DISTRIBUTORS, INC. v. DAVENPORT.
• Court: Georgia Court of Appeals

Page 850

403 S.E.2d 850

199 Ga.App. 33

WAREHOUSE HOME FURNISHINGS DISTRIBUTORS, INC. v. DAVENPORT.

No. A90A2107.

Court of Appeals of Georgia.

Feb. 26, 1991.

Rehearing Denied March 12, 1991.

Certiorari Granted May 16, 1991.

Arnall, Golden & Gregory, Jeffery M. Smith, J. Randolph Evans, Atlanta, for appellant.

Westmoreland, Patterson & Moseley, Thomas W. Herman, Macon, for appellee.

SOGNIER, Chief Judge.

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, 385 S.E.2d 672.

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.

CARLEY, Judge, concurring specially.

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 ...