Motion To Quash Subpoena Ocr¶

FILED 6/27/2022 4:19 PM CLERK OF SUPERIOR COURT DEKALB COUNTY GEORGIA

IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA JONATHAN SWEATMAN,

)

)

Petitioner,

) )

V.

Civil Action File No. 21CV9795

)

)

SARAH ZEEMAN,

)

)

Respondent.

)

) MOTION TO QUASH PETITIONER’S SUBPOENA DUCES TECUM TO CHASTAIN AND ASSOCIATES, PC

COMES NOW Sarah Zeeman (hereinafter “Ms. Zeeman” or “Respondent’), respondent in the above-styled case,

and moves this Court pursuant toO.C.G.A.

the subpoena served by Petitioner

§

24-10-22 to quash

Jonathan Sweatman (hereinafter, “Sweatman” or “Petitioner’’)

on Chastain & Associates (hereinafter, “Chastain”. A true and correct copy of the Subpoena Duces

Tecum to Chastain and Associates, P.C. (hereinafter, “Subpoena”) is attached hereto as Exhibit

“A” and incorporated herein.

As this Subpoena seeks information protected by work product

doctrine, the Subpoena should be quashed.

FACTS This matter in about, inter alia, a boundary line dispute between Petitioner and Ms. Zeeman, who share

a common boundary line between their properties.

Petitioner filed this

Complaint for Equitable Relief on November 12, 2021, seeking removal of alleged encroachments

from his property, damages and attorney’s fees. Ms. Zeeman filed her Answer and Counterclaim on January 13, 2022, denying the claims of Petitioner and seeking a declaratory judgement in

regard to the boundary line between the parties, as well as trespass, injunctive relief, damages and

attorney’s fees. The Parties are currently in the process of discovery. Chastain is a well-known and well-respected surveying company in Georgia. In the course

of defending Ms. Zeeman against the claims of Petitioner, Chastain was hired by Petitioner’s

counsel to prepare a survey of Zeeman’s property. This survey was ordered and prepared as workproduct in defense of the claims of Petitioner and therefore, the Subpoena is seeking protected information and documents. ARGUMENT AND CITATION OF AUTHORITY

A party may discover any non-privileged matter that is relevant to the subject matter

involved in the pending action. O.C.G.A. § 9-11-26. Under the work product doctrine, documents and tangible things prepared in anticipation of litigation are discoverable only under limited

circumstances; “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party” concerning the litigation are not discoverable. O.C.G.A. § 9-1126(b); Ga. Int'l Life Ins. Co. v. Boney, 139 Ga. App. 575 (3) (1976). In numerous cases, Georgia courts have protected privileged information from discovery. See, e.g., In re N.S.M., 183 Ga. App. 398 (1987) (affirming a grant of a motion to quash a subpoena for attorney-client privileged information).

In the instant case, Chastain was retained during the litigation by Zeeman’s counsel for the purposes of preparing a survey as part of Zeeman and her counsel’s review of the opinions and legal theories in this action.

The communications with Chastain were via counsel only, not Ms.

Zeeman.

[T]he work-product doctrine directly protects the adversarial system by allowing

attorneys

to

prepare

cases

without

concern

that

their

work

will

client.” McKesson HBOC, Inc. v. Adler, 254 Ga. App. 500, 503, (2002).

be

used

against

their

Further, no communications or documents between Chastain and any of the lawyers representing Zeeman are discoverable as all would be attorney-client privilege or constitute workproduct protected material of Zeeman and her counsel.

In Georgia, privilege applies not just to

communications between attorney and client directly, but also to communications between the attorney and an agent of the client, hired for a particular purpose. See McKinnon v. Smock, 264

Ga. 375 (1994). In McKinnon, a defendant moved to compel correspondence between a plaintiff's attorney and the plaintiff's medical expert. McKinnon v. Smock, 264 Ga. 375 (1994), the Supreme Court affirmed the appellate court's denial of the defendant's motion to compel to the extent the correspondence between the attorney and the medical expert contained work product. Jd. at 378. In the instant case, Chastain is an agent of Ms. Zeeman and was hired by her counsel as part of a review and defense of the claims of Petitioner. As such, not such communications are discoverable and should be quashed.

Under the discovery provisions of the Civil Practice Act, the trial judge is granted broad discretion. O.C.G.A. §§ 9-2-1; 9-11-26(b)(1); 9-11- 30(d); Tompkins v. McMickle, 172 Ga. App.

62, 321 S.E.2d 797 (1984). In the exercise of that discretion, Georgia trial courts are specifically authorized to issue protective orders and declare that discovery not be had if doing so would

“protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” O.C.G.A. § 9-11-26(c). The Court should enter a protective order to prevent Petitioner, obtaining documents related to a subject matter that is protected from disclosure by the attorneyclient privilege or the work product doctrine. See O.C.G.A. § 24-9-27(c) (parties do not have to

comply with discovery seeking the advice of or consultation with the party's professional advisers).

CONCLUSION

For the foregoing reasons, Respondent requests that this Court quash Petitioner’s subpoena to Chastain & Associates in its entirety.

Respectfully submitted this 27th day of June, 2022.

MCLAIN & MERRITT PC /s/ Tania R. Tuttle 11625 Rainwater Drive, Suite 125

TANIA R. TUTTLE

Alpharetta, Georgia 30009

Georgia State Bar No. 720348

Phone: (770) 200-7000

SARAH C. MONICO

Fax:

Georgia State Bar No. 582691

(770) 200-7001

ttuttle@mmatllaw.com

BRETT M. LEDERMEIER

smonico@mmatllaw.com

Georgia State Bar No. 600906

bledermeier@mmatllaw.com

Attorneys for Respondent Sarah Zeeman

CERTIFICATE OF SERVICE This is to certify that I have this date served counsel for the opposing party in the

foregoing matter with a copy of the foregoing Motion to Quash Subpoena via the PeachCourt efiling system which will send notice to the following counsel of record: Lisa K. Rose

lisa @roselitigation. lawyer Counsel for Petitioner Richard J. Capriola Eric Coleman rcapriola@ wezlaw.com

ecoleman @ wezlaw.com Counsel for Respondent on Counterclaim Joseph Emanuel Joseph.emanuel @ swiftcurrie.com Co-Counsel for Respondent

Respectfully submitted this 27th day of June, 2022.

MCLAIN & MERRITT PC /s/ Tania R. Tuttle 11625 Rainwater Drive, Suite 125

TANIA R. TUTTLE

Alpharetta, Georgia 30009

Georgia State Bar No. 720348

Phone: (770) 200-7000

SARAH C. MONICO

Fax:

Georgia State Bar No. 582691

(770) 200-7001

ttuttle@mmatllaw.com

BRETT M. LEDERMEIER

smonico@mmatllaw.com

Georgia State Bar No. 600906

bledermeier@mmatllaw.com

Attorneys for Respondent Sarah Zeeman