Cross Creek Pictures, LLC v. Bradley Lamar Scott ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 26, 2018
The Court of Appeals hereby passes the following order:
A19D0084. CROSS CREEK PICTURES, LLC et al. v. BRADLEY LAMAR
SCOTT.
In 2016, a wrongful death and survival action was filed in California against
several defendants, including Cross Creek Pictures, LLC; Imagine Entertainment,
LLC; Quadrant Pictures; and Vendian Entertainment, LLC (collectively, the
“Applicants”). In that action, the Applicants filed a subpoena for the deposition of
non-party witness Bradley Scott, a Georgia resident. After domesticating the
California subpoena in Cherokee County Superior Court, the Applicants filed a
motion to enforce the subpoena in that court. Scott then filed, in the same court, a
motion to quash the subpoena or for a protective order.
In a single order entered on August 7, 2018, the Cherokee County Superior
Court granted each parties’ motions in part, as follows: (i) the court “quashe[d] and
modifie[d]” the subpoena to allow Scott to be deposed following rulings on then-
pending motions to dismiss and to disqualify counsel in a related federal action;
(ii) the court quashed the subpoena with respect to certain limited topics identified
in the court’s order; (iii) the court conditioned the production of confidential
documents and testimony by Scott on the entry of a protective order on terms set forth
in the court’s order; and (iv) the court ordered the Applicants to issue and serve a new
subpoena that complies with the court’s order. The court also rejected the Applicants’
request for a certificate of immediate review. The Applicants then filed this
application for discretionary review, seeking to appeal the August 7 order. We lack
jurisdiction.
By its very terms, the order that the Applicants seek to appeal is a non-final
order, and this proceeding remains pending before the Cherokee County Superior
Court. Consequently – and setting aside whether the August 7 order otherwise is
subject to the discretionary appeal procedures – the Applicants were required to use
the interlocutory appeal procedures, including obtaining a certificate of immediate
review from the Cherokee County Superior Court, to obtain appellate review. See
OCGA § 5-6-34 (b); Boyd v. State, 191 Ga. App. 435, 435 (383 SE2d 906) (1989).
Moreover, to the extent the Applicants seek review of the denial of their request for
a certificate of immediate review, that is not an appealable ruling. See Price v. State,
237 Ga. 352, 352-353 (2) (227 SE2d 368) (1976).
In a footnote in their application brief, the Applicants briefly contend that this
Court should “exercise its discretion to bypass the interlocutory appeal certificate
requirement” under Waldrip v. Head, 272 Ga. 572 (532 SE2d 380) (2000). The
Applicants’ reliance on Waldrip is premised on the Supreme Court’s observation that,
“on rare occasions,” it “has assumed jurisdiction to consider an appeal despite the
absence of a final judgment or a certificate of immediate review from the trial court”
in “exceptional cases that involve an issue of great concern, gravity, and importance
to the public and no timely opportunity for appellate review.” Waldrip, 272 Ga. at
575 (1). Pretermitting whether the “inherent power” to hear such appeals extends to
this Court, the Applicants have cited no authority supporting their conclusory
suggestion that this discovery dispute “involve[s] an issue of great concern, gravity,
and importance to the public.”1 See id. at 575-576 (1); compare Johnson & Johnson
1
We do not consider the Applicants’ alternative argument – belatedly raised
for the first time in their reply brief – that the trial court’s order potentially may be
directly appealable under the collateral order doctrine. See City of Atlanta v. Mays,
v. Kaufman, 226 Ga. App. 77, 81-82 (485 SE2d 525) (1997) (permitting direct
appeals of discovery orders would not “serve[] the greater interests of ensuring the
effective and efficient administration of justice”). Consequently, absent a timely
certificate of immediate review, we lack jurisdiction over this application, which is
hereby DISMISSED. See Bailey v. Bailey, 266 Ga. 832, 833 (471 SE2d 213) (1996);
Boyd, 191 Ga. App. at 435.
The Applicants’ emergency motion under Court of Appeals Rule 40 (b) for an
expedited appeal is DENIED as MOOT. The Applicants’ motion for reconsideration
of this Court’s September 20, 2018 order denying their motion for modification of
supersedeas likewise is DENIED as MOOT.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/26/2018
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
301 Ga. 367, 372 (3) (801 SE2d 1) (2017) (“An appellant who raises an argument for
the first time in a reply brief is not entitled to have that argument considered.”).