Fein v. Chenault

• Decision Date: 22 October 2014
• Docket Number: No. A14A0925.,A14A0925.
• Citation: 767 S.E.2d 766,330 Ga.App. 222
• Parties: FEIN et al. v. CHENAULT et al.
• Court: Georgia Court of Appeals

330 Ga.App. 222

767 S.E.2d 766

FEIN et al.

v.CHENAULT et al.

No. A14A0925.

Court of Appeals of Georgia.

Oct. 22, 2014.

Reconsideration Denied Dec. 5, 2014.

Certiorari Denied March 30, 2015.

Christopher Scott Anulewicz, Balch & Bingham, Michael J. Bowers, Carlock, Copeland & Stair, Thomas S. Carlock, Clinton Fuller Fletcher, Nall & Miller, George R. Neuhauser, Atlanta, for Appellants.

The Mabra Firm, Ronald Edwin Mabra Jr., Franklin Law, Rebecca Claire Franklin, Harris Penn Lowry, Darren Wade Penn, for Appellees.

Opinion

BARNES, Presiding Judge.

Florida attorney Frederick J. Fein and his client Continental Tire The Americas, LLC (Continental), filed a direct appeal of the trial court's order in this personal injury case finding that Fein violated the Georgia Rules of Professional Conduct but declining to revoke his pro hac vice status. Instead, the court restricted Fein's advocacy by designating local counsel as lead counsel for defendant Continental and directing Fein not to prepare or file pleadings, contact the court or its staff, or present argument or evidence at any future court proceeding. The court noted that Fein would be permitted to attend all future proceedings, confer with his client and local counsel, and sit at counsel table during court. Because this court lacks jurisdiction to consider this issue on direct appeal while the case remains pending in the trial court, we must dismiss the appeal.

The underlying case arose when Marlos Chenault and his wife filed suit against multiple defendants after Chenault was involved in a car wreck, allegedly caused by a defective tire, that resulted in his paralysis. The Chenaults brought product liability and negligence claims against Continental and General Motors Corporation (GM). GM is not involved in the issue before this court now. Discovery disputes regarding the disclosure of certain rubber compound formulas and other information Continental Tire deemed to be trade secrets led to a telephone conference with the trial court, which resulted in the court ordering Continental on May 23, 2013, to disclose certain information pursuant to a protective order by June 11, 2013.

On May 31, 2013, Continental filed an “Emergency Motion for Reconsideration or, in the Alternative, Request for a Certificate of Immediate Review of the Court's Order of May 23, 2013,” arguing that the telephonic hearing was inadequate to provide the trial court with the necessary case law and evidence, that the information was “highly proprietary trade secrets that are not subject to disclosure,” that its production would cause irreparable harm, and that Chenault had not shown sufficient need for the information. It argued that “courts across the country have repeatedly found that tire companies' rubber compound formulas ... are trade secrets whose secrecy and value in being maintained as secrets justify excluding them from the discovery process,” even with a protective order. Continental attached an affidavit from its director of product analysis, who averred that the company's rubber compound formulas are so highly protected they “are not disclosed even pursuant to a protective order.”

Chenault responded on May 31, 2013, and argued that the information sought was not a trade secret and was crucial to his claim. He further argued that the cases cited by Continental for the proposition that courts have refused to allow discovery of the information sought actually dealt with different information, and that “a number of other courts have in fact ordered both the disclosure of halobutyl content in tires, as well as the full formulas.”¹ Chenault attached orders from Missouri, Florida, and New York courts directing Cooper Tire Company to disclose information regarding the content or existence of halobutyl in the inner liner of the subject tires, and an order from a Montana court directing Continental to disclose tire compound formulas.

The ten-day window for issuing a certificate of immediate review passed without a ruling from the trial court. On June 4, 2013, Continental filed an emergency motion to stay that portion of the trial court's May 23 order directing it to produce certain information by June 11, 2013. Chenault opposed the stay, noting in a brief filed on June 10, 2013, that Continental was citing to a legal standard inapplicable in Georgia, which required movants to show that the disclosure of confidential information was “necessary.” Chenault also pointed out that while Fein represented that a court had never required his clients to produce rubber compound information, he was lead counsel in a Florida case and a DeKalb County, Georgia, case, in which the tire manufacturer he represented was ordered to disclose that information.

On June 11, 2013, the trial court denied Continental's motion to stay and for reconsideration, reminding the parties of the existing protective order and giving Continental until June 14, 2013, to produce the documents and information previously ordered. On June 13, 2014, Continental requested a certificate of immediate review of the court's June 11 order, which the court denied later that same day.

On June 14, 2013, Continental filed a notice of appeal from the court's discovery orders of May 23, 2013 and June 11, 2013, and also filed an application for interlocutory appeal with this court. This court dismissed the interlocutory appeal on July 11, 2013, and dismissed the direct appeal on August 20, 2013, finding in both cases that the discovery issue was neither an exceptional one reviewable absent a certificate of immediate review, nor subject to the collateral source exception to the final judgment rule.

Meanwhile, on June 22, 2013, the trial court sua sponte issued a rule nisi, placing the parties

on notice that it is considering revoking the pro hac vice status of Frederick J. Fein, Esq., based upon material false statements made to the Court regarding legal authority and factual matters during his representation [,] which misstatements may be detrimental to the prompt, fair and efficient administration of justice in this case.

It ordered Fein and all other counsel for Continental to appear on September 4, 2013, for a hearing on the issue.

On June 26, 2013, Continental moved to vacate the rule nisi, arguing that Fein did not know what false statement the court referred to, that the court appeared to have already determined his culpability, and that the court had entered the order without giving him a chance to refute it. All previous pleadings had been signed only by local counsel, but the motion to vacate was the first one that also included Fein's signature as counsel for Continental. All subsequent pleadings included Fein's signature until the trial court's October 2013 order at issue here. The trial court denied the motion to vacate the rule nisi order on July 26, 2013.

Both parties filed motions on July 29, 2013, with Chenault moving to compel Continental to provide the discovery the trial court had previously ordered it to produce and Continental filing a motion to recuse the trial court. On July 30, 2013, Continental filed a Rule 5.2 certificate of service of discovery of supplemental answers and objections to Chenault's interrogatories and requests for production of documents.

On July 31, 2013, the trial court issued an order denying Continental's motion to recuse, finding the motion timely but lacking a basis as a matter of law. On August 1, 2013, the court ordered Continental to respond to Chenault's motion to compel by August 16, 2013, and the next day Chenault filed a motion seeking sanctions for discovery abuse. On August 6, 2013, Continental requested a certificate of immediate review of the court's order denying its motion to recuse.

On August 8, 2013, the trial court issued an amended rule nisi, directing that

defense counsel, including pro hac counsel, should be prepared to address the question of whether or not pro hac counsel violated Georgia Rule of Professional Conduct 3.3 during a telephone conference with the Court regarding Plaintiff's Interrogatories and Request for Production of Documents in May of 2013. Specifically, the Court is concerned that pro hac counsel made false statements regarding the law to the tribunal, failed to disclose legal authority contrary to his position which was known to him, and failed to disclose material facts to the tribunal which were in direct contradiction of his statements made on personal knowledge regarding the production of evidence in this case.If proven, these misstatements may be detrimental to the prompt, fair and efficient administration of justice in this case and may be grounds for a revocation of Mr. Fein's pro hac status pursuant to Rule 4.4(d)(4) and 4.4(f)(1)(b).

(Emphasis supplied.)

On August 14, 2013, Fein filed a renewed Motion to Vacate Rule Nisi of June 22, 2013 (the first rule nisi), arguing that, although the trial court added qualifying language in its amended rule nisi, it had not vacated its initial rule nisi, which had already been cited by opposing counsel in other cases as proof that Fein had been found to have exhibited a “pattern of deception” in representing his client. Fein also objected to and moved “to clarify” the amended rule nisi, contending that he still did not know what he failed to disclose or misrepresented to the court.

Two days later, Continental filed an opposition to Chenault's motion to compel and for attorney fees, arguing that it had “bent over backwards to produce hordes of information about the tire” at issue in this case. Continental included affidavits from company engineers stating that Chenault's discovery requests were too broad to comply with and that because this particular unique tire had been developed with GM for this particular vehicle, information about other tires was irrelevant.

Continental also responded to Chenault's motion for sanctions on August 14, 2013. Its brief began, “According to Plaintiffs, no good deed should go unpunished,” and asserted that...