Cohen v. Rogers

• Decision Date: 14 July 2016
• Docket Number: A16A0259
• Citation: 338 Ga.App. 156,789 S.E.2d 352
• Parties: Cohen et al. v. Rogers.
• Court: Georgia Court of Appeals

338 Ga.App. 156

789 S.E.2d 352

Cohen et al.

v.Rogers.

A16A0259

Court of Appeals of Georgia.

July 14, 2016

John C. Butters, Alison Berkowitz Prout, David Michael Cohen, Patrick Christopher Fagan, Michael Brian Terry, Atlanta, Hylton B. Dupree Jr., Marietta, for Appellant.

David Patrick Conley, Jeffrey Alan Daxe, Robert D. Ingram, Marietta, for Appellee.

Barnes

, Presiding Judge.

We granted this interlocutory appeal to consider whether the Cobb County trial court erred in granting the plaintiff's motion to disqualify two of the defendant's lawyers in this civil suit. The trial court based its disqualification order on several grounds, and the lawyers argue on appeal that the trial court abused its discretion. For the reasons that follow, we find no abuse of discretion in the trial court's disqualification order and affirm.

Until the trial court disqualified them in June 2015, attorneys David Cohen and John Butters had represented Mye Brooke Brindle for three years in a complex series of lawsuits between Brindle and her former employer, Joseph Rogers, Jr. In September 2012, Rogers sued Brindle, his former housekeeper, in Cobb County, asking the court to take possession and enjoin the dissemination of a video recording Brindle had made of a sexual encounter between herself and Rogers without Rogers' consent or knowledge (“Cobb 1 ”). The complaint also included counts alleging invasion of privacy and intentional infliction of emotional distress because of the recording, and a count alleging that Brindle was unjustly enriched by working fewer than the number of hours for which she had been paid. In addition to general damages, Rogers sought the disgorgement of any excess payments Brindle received, punitive damages, and attorney fees. Brindle answered and counter-claimed for battery, intentional infliction of emotional distress, and breach of mediation confidentiality, among other things, seeking general damages, punitive damages, and attorney fees.

The parties commenced discovery. Brindle objected to three interrogatories and several deposition questions on the basis that certain information sought about the decision to make the video recording was protected by the attorney-client privilege, and in February 2013, Rogers filed a motion to compel her to respond to discovery. During a hearing on April 26, 2013, the trial court heard argument on several motions, including Rogers' motion to compel, which it took under advisement. After further briefing, on May 16, 2013, the trial court issued an order directing Brindle to appear in court “to be examined by the Court under oath about the circumstances surrounding the video and audio recordings in this case,” so the court could determine whether the crime-fraud exception to the attorney-client privilege applied. That hearing took place on May 21, 2013, with Brindle's lawyers present, and the trial court ordered that the transcript be sealed.

On June 14, 2013, the trial court granted Rogers' motion to compel, finding Brindle's attorney-client privilege was waived as to certain questions. Before making its ruling, the trial court viewed the impounded video and several audio recordings of Brindle and Rogers, and considered the testimony Brindle presented during the closed crime-fraud hearing and in deposition. The court reviewed the case law, under which the attorney-client privilege may be waived if a prima facie case is made that the communication was made to plan or further illegal or fraudulent activity, citing Rose v. Commercial Factors of Atlanta , 262 Ga.App. 528, 586 S.E.2d 41 (2003)

. The court then found that Brindle had violated OCGA § 16–11–62

by video-recording Rogers without his knowledge, and that a prima facie showing had been made that Brindle had been planning to make the video recording when she sought the advice of counsel, thus waiving her attorney-client privilege as to certain issues. The trial court ordered Brindle to respond to three specific interrogatories and allowed Rogers one hour to re-take Brindle's deposition to “ask only questions limited to 1) where and from whom the recording device was obtained; 2) under what circumstances the recording device was obtained; and 3) who else besides [Brindle] was involved in planning the video recording.” Four days later, on June 18, 2013, Rogers filed an emergency motion to disqualify Butters and Cohen as Brindle's counsel and to stay all discovery not pertinent to the discovery allowed in the June 14, 2013 order.

On June 19, 2013, the trial court granted Brindle's application for a certificate of immediate review of the discovery order and stayed all action in the case. In July 2013, this Court granted Brindle's application for an interlocutory appeal. The case was docketed in this court in late November 2013.

In May 2014, while the proceedings in Cobb 1 were stayed during Brindle's appeal of the trial court's discovery order, Rogers filed a second suit in Cobb County against Cohen, Butters, and Hylton B. Dupree, Jr., who also represented Brindle, as well as the attorneys' business entities and five unknown individuals and corporations. (“Cobb 2 ers seeks damages for alleged torts related to the video recording and accuses the attorneys of having committed criminal actions related to Brindle having recorded herself and Rogers, and related to the attorneys' actions during the litigation in Cobb 1 2 was assigned to the same trial judge as Cobb 1 .

In July 2014, we affirmed the trial court's discovery order in Cobb 1 in an unpublished opinion, finding no abuse of discretion.

Brindle v. Rogers , Case No. A14A0676, pp. 6–10 (issued July 16, 2014).¹ Brindle then filed a petition for a writ of certiorari to the Georgia Supreme Court in Cobb 1. The Supreme Court of Georgia denied Brindle's petition for certiorari in February 2015, and Cobb 1 was returned to the trial court on March 13, 2015.

On March 31, 2015, the trial court lifted the stay it had imposed in Cobb 1 while the case was on appeal. On April 9, 2015, the defendants in both Cobb 1 and Cobb 2 (Brindle, Cohen, Butters, and Dupree) filed a joint motion to stay both proceedings. They argued that Georgia's Anti-Strategic Lawsuit against Public Participation (anti-SLAPP) statute, OCGA § 9–11–11.1 (d)

, imposed an automatic stay on Cobb 2 until the court ruled on anti-SLAPP motions to dismiss. They further argued that the proceedings in Cobb 1 should be stayed until the trial court ruled on the motions to dismiss in Cobb 2 so the attorneys would not be required to act simultaneously as Brindle's representative and as defendants.

On April 10, 2015, Brindle filed an “interim response to pending motions,” noting that her motions to stay in Cobb 1 and Cobb 2 were under consideration by the court, but apparently could not be ruled on immediately. Brindle further stated that she was not ignoring the motions pending before the court, including the motion to disqualify, but that “the current procedural posture of the two cases has the Court requiring counsel to defend” Brindle while also defending themselves. Rogers replied, arguing that the only pending motion in Cobb 1 to which Brindle had not responded was his June 2013 motion to disqualify Brindle's lawyers.

The trial court scheduled a status conference on May 19, 2015, and on May 18, 2015, Rogers filed a 181–page bench brief in Cobb 1 discussing his pending discovery motions and other issues. The trial court began the status conference hearing by noting that the parties had two cases ongoing at the same time, both of which had a number of pending motions, and offered to hear from the parties on any matters and to discuss issues related to limited discovery in Cobb 2 .

Butters stated that he and Dupree were present in their dual capacities as defendants in Cobb 2 and as counsel for Brindle in Cobb 1 (Cohen was not at the hearing), and reiterated that the defendants had filed a joint motion to stay both cases. Butters asked the court to stay the proceedings in Cobb 1 until the defendant attorneys' motion to dismiss under the anti-SLAPP statute had been resolved in Cobb 2 . However, Rogers objected to staying Cobb 1 , arguing that Brindle was in contempt for not responding to Rogers' discovery within ten days as the trial court had previously directed in its June 2013 order granting Rogers' motion to compel, a ruling affirmed on appeal. Rogers further argued that the attorneys' conflict in representing Brindle in Cobb 1 was independent of their conflict as defendants in Cobb 2 , and also argued the merits of his disqualification motion.

Butters as counsel for Brindle in Cobb 1 replied that Rogers' motion to disqualify had not been calendared to be heard during the status conference and he was not prepared to argue it, but that Brindle stood ready to comply with the trial court's two-year-old discovery order now that the court had lifted the stay. Butters pointed out that while the proceedings in Cobb 1 had been stayed, Rogers filed Cobb 2 against Brindle's lawyers, and while the stay in Cobb 1 had been lifted, the proceedings in Cobb 2 were currently stayed until the trial court resolved the lawyers' motions to dismiss under the anti-SLAPP statute. Brindle asked the court to also stay the discovery in Cobb 1 until the motion in Cobb 2 was decided.

Rogers responded that the trial court had lifted its stay in Cobb 1 on March 31, 2015. Therefore, he argued, as of the May 19, 2015, hearing, Brindle stood in contempt for failing to comply with the trial court's now-active order from two years ago, which directed her to supplement her discovery responses within ten days.

Regarding Rogers' contempt claim, the trial court observed during the hearing:

In fairness, we are sort of in unchartered [sic] waters[.] When I wrote that order I certainly didn't know I was going to have a subsequently filed lawsuit where the lawyers were going to be on the other side of the v. there. So Ms. Brindle is in a situation because of the conflicts that

...