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A Fulton County, Ga., judge has given the OK for lawyers pursuing a personal injury suit against Atlanta-based The Home Depot Inc. to depose company co-founder and Chairman Bernard Marcus. Fulton County State Court Judge M. Gino Brogdon, in a December order, granted the plaintiffs’ motion to compel Marcus to sit for a deposition that could last up to six hours. The case is scheduled for mediation today. It’s rare for courts to allow depositions of the top officials of big companies. Courts are generally sympathetic to the view that plaintiffs’ lawyers ask to depose top executives only to harass them and gain leverage in potential settlement negotiations. Defense lawyers also argue that in a big company, there are usually other officials who have more direct knowledge of issues or incidents that are the subject of litigation. But in this case, plaintiffs’ lawyers argued that Marcus is directly responsible for creating a potentially unsafe environment in Home Depot stores, and they want to question him about it. Plaintiffs Nancy and Richard Martin claim Marcus’ testimony is necessary to prove that Home Depot acted in bad faith because it has endangered shoppers with its policy of stacking merchandise on shelves that tower above aisles. Nancy Martin was injured July 3, 1998, while shopping at an Atlanta Home Depot. According to the suit, a store employee was using a forklift to remove merchandise from the top of an 18-foot pallet-rack when three boxes of light fixtures fell on Nancy Martin’s head. She suffered a closed-head brain injury that has resulted in severe headaches and seizures. This case “has turned the expression ‘shop until you drop’ into ‘shop until you are dropped at Home Depot,’ ” write the Martins’ lawyers, Thomas J. Venker and Andrew R. Kirschner of Atlanta’s Kirschner & Venker and Theodore Salter Jr. of Atlanta. The plaintiffs’ lawyers contend Marcus is one of the creators of the marketing plan that produced Home Depot’s warehouse-style stacking policies that allegedly have caused numerous injuries and at least three deaths around the United States. And the lawyers say they want to ask him about that policy, particularly as he laid it out in the book he recently co-authored with company co-founder Arthur Blank, “Built From Scratch.” The 1999 book describes how the pair built Home Depot. Home Depot claims that the deposition is nothing more than harassment and an effort to embarrass Marcus. Marcus was no longer chief executive officer of the company at the time of the incident and has no personal knowledge of what happened, argues defense attorney C.G. Jester Jr., of counsel to Atlanta’s Mozley, Finlayson & Loggins and M. Andrew Riddle, an associate with the same firm. Furthermore, Jester contends, Marcus’ book isn’t used in any way by Home Depot. It’s not distributed within the company or used to educate employees. Deposing Marcus would be “vexatious and unduly burdensome,” as well as irrelevant to the case, Jester wrote in a motion for a protective order filed last summer. Jester’s brief argues that courts historically have been reluctant to permit such depositions absent a showing that the corporate executive has unique knowledge relevant to the case. That, he contends, the plaintiffs haven’t done. Marcus “could be made a target of every overzealous premises liability plaintiff or attorney,” the defense contends. GM CASE A different set of defense lawyers made similar arguments 10 years ago in the landmark Moseley v. General Motors case in unsuccessful efforts to prevent the deposition of GM CEO Robert C. Stempel. The defense in that wrongful death-products liability case went so far as to sue the Fulton magistrate who ordered Stempel deposed. Defense lawyers from King & Spalding argued that CEOs of major corporations would be in serious trouble if such discovery abuse wasn’t halted. The King & Spalding lawyers’ arguments were to no avail. Plaintiffs’ lawyer James E. Butler Jr. got to spend nearly two-and-a-half hours grilling the executive about the company’s sidesaddle fuel tanks. The case resulted in a $105.24 million verdict in 1993, a record for Georgia at the time. But the verdict was overturned on appeal and the case later settled for a confidential amount. Today, depositions of CEOs of major corporations are still rare. But the plaintiffs contend that simply because Marcus is a “big cheese” in a big company, he shouldn’t be immune from being deposed. Marcus’ statements in his book about Home Depot’s use of high-stacking “are as good as it could get for evidence of Home Depot’s authorized corporate marketing plan,” the plaintiffs’ brief says. “Plaintiffs want the evidence straight from one of the persons who originated the concept of ‘high-stacking’ as borne out in the book,” Venker, Kirschner and Salter argue. “The deposition is not being taken for harassment or abuse, it is being taken because Mr. Marcus, along with Mr. Blank, are the creators of the marketing plan that causes the risk of customers being struck by merchandise knocked off or falling off overhead shelves.” Excerpts from the book have been highlighted and attached to court filings, including this passage: “Those first stores really had the look of a warehouse. They weren’t dirty, they weren’t ugly, but you wouldn’t take a lot of pictures and hang them on your wall. We never wanted a pretty store; what we wanted to do was pile the merchandise up, and that helped create the illusion and eventually the sales.” In another excerpt, Marcus describes how tears welled up in his eyes when he saw a huge store with “merchandise piled up to the ceiling.” NEGLIGENCE AS A DEFENSE But defense lawyers contend that no “inherently dangerous” situation is at issue in this case. Instead, they argue, the plaintiffs’ claim is that Home Depot employees’ actions caused the boxes to fall — a simple negligence case. Brogdon initially told the plaintiffs to depose other company officials, including the senior safety manager and director of internal communication, and then determine if deposing Marcus was still necessary. The safety manager, plaintiffs’ lawyers reported to the judge after taking those two depositions, had not even read Marcus’ book and the communication director said the book was really only Marcus’ and Blank’s opinions and not intended to be a recitation of corporate policy. Neither official was a substitute for Marcus, they argued. At that point, Brogdon said he would direct Marcus to sit for a deposition. Martin v. Home Depot, No. 00VS001710-J (Fult. St. order Dec. 10, 2001). Home Depot now has asked Brogdon to grant a certificate of immediate review so it can appeal that ruling. Such an appeal of discovery issues is left to the discretion of the trial judge. Jester did not return calls for comment.

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