Daryl Moody v. Hill, Kertsher & Wharton, LLP ( 2021 )

SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
March 8, 2021
In the Court of Appeals of Georgia
A18A1011. MOODY et al v. HILL, KERTSCHER & WHARTON,
LLP et al.
PIPKIN, Judge.
This is the second appearance of this legal-malpractice action before this Court.
As we have previously summarized, Appellants moved the trial court for a protective
order, claiming that certain documents sought by Appellees from a non-party law firm
were protected by attorney-client privilege and were attorney-work product; the trial
court denied the motion, concluding that Appellants had waived both protections by
filing this instant action. See Moody v. Hill, Kertscher & Wharton, LLP, 346 Ga. App.
129, 130 (813 SE2d 790) (2018) (“Moody I”). This Court granted Appellants’
interlocutory appeal and reversed, concluding that Appellants had not waived their
right to attorney-client privilege with respect to the non-party law firm; we did not
reach the question of whether the requested documents were otherwise protected as
attorney-work product. Id. at 131. Our Supreme Court granted certiorari review and
reversed our decision, concluding that Appellants had, in fact, impliedly waived the
attorney-client privilege and that we should have affirmed the trial court on this point.
Hill, Kertscher & Wharton, LLP v. Moody, 308 Ga. 74, 80 (2) (839 SE2d 535) (2020)
(“Moody II”). Accordingly, we adopt the judgment of the Supreme Court as our own,
and affirm the trial court’s decision denying the protective order based on attorney-
client privilege. However, this does not conclude the case.
As our Supreme Court correctly noted, still left undecided in this appeal is
whether the documents at issue may be protected by attorney-work product. See
Moody II, 308 Ga. at 80-81 (3). Here, the trial court concluded that Appellants had
waived any right to make a claim of attorney-work product by filing the instant legal
malpractice action, seemingly equating the waiver of attorney-work product with the
waiver of the attorney-client privilege; this, however, was erroneous. “[T]he
attorney-client privilege is intended to protect the attorney-client relationship by
protecting communications between clients and attorneys, [while] the work-product
doctrine directly protects the adversarial system by allowing attorneys to prepare
cases without concern that their work will be used against their clients.” McKesson
HBOC, Inc. v. Adler, 254 Ga. App. 500, 503 (1) (562 SE2d 809) (2002). Evaluating
a claim of work-product protection is a “complex and fact-intensive process [that]
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differs substantially from the analysis required for a claim of attorney-client
privilege[.]” Id at 502. Thus, the trial court’s conclusion concerning Appellants’
waiver of attorney-client privilege sheds no light on claims concerning attorney-work
protections. Id.OCGA § 9-11-26 (b) (3) provides the standard concerning the production of
attorney-work product. That subsection states, in relevant part, as follows:
[A] party may obtain discovery of documents and tangible things
otherwise discoverable under . . . this subsection and prepared in
anticipation of litigation or for trial by or for another party or by or for
that other party’s representative . . . only upon a showing that the party
seeking discovery has substantial need of the materials in the
preparation of his case and that he is unable without undue hardship to
obtain the substantial equivalent of the materials by other means. In
ordering discovery of such materials when the required showing has
been made, the court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or
other representative of a party concerning the litigation.
“As we read the language of this subsection, it is obvious that documents, statements
and other tangible items of evidence developed by one party in preparation for
litigation are discoverable by the other party only in carefully limited circumstances.”
Ga. Intl. Life Ins. Co. v. Boney, 139 Ga. App. 575, 580-581 (3) (228 SE2d 731)
(1976). The discovery of these items is proper only where the party seeking
disclosure “shows (1) that it has a substantial need for the materials to prepare its case
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and (2) that it is unable without undue hardship to obtain the substantial equivalent
of the materials by other means.” (Citation and punctuation omitted.) St. Simons
Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419, 429 (2) (746
SE2d 98) (2013). Even if the party seeking disclosure makes the requisite showing,
the trial court may order the production of the material only after ensuring that there
is no disclosure of mental impressions, conclusions, opinions, or legal theories of any
attorney or other representative. See McKinnon v. Smock, 264 Ga. 375, 376 (2) (445
SE2d 526) (1994). Such a step requires an in camera review and possible redaction
of the document. See St. Simons Waterfront, 293 Ga. at 429-430 (2).
Here, the trial court has made no finding of fact concerning Appellees’ need
or hardship and has made no inquiry into the substance of the documents at issue.
Because the trial court is the finder of fact in discovery disputes, we must remand this
case to the trial court for further proceedings consistent with this opinion. See
Wellstar Health System, Inc. v. Jordan, 293 Ga. 12, 18 (743 SE2d 375) (2013).
Judgment affirmed in part and vacated in part, and case remanded. Miller, P.
J., and Hodges, J., concur.
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