Ex parte Life Ins. Co. of Georgia

• Decision Date: 09 June 1995
• Citation: 663 So.2d 929
• Parties: Ex parte LIFE INSURANCE COMPANY OF GEORGIA. (In re Sharen L. GREEN v. LIFE INSURANCE COMPANY OF GEORGIA, et al.; Sheryl VANCHE v. LIFE INSURANCE COMPANY OF GEORGIA, et al.; Christina SMITH v. LIFE INSURANCE COMPANY OF GEORGIA, et al.; Janelle S. SMITH v. LIFE INSURANCE COMPANY OF GEORGIA, et al.; and Priscilla DUFFEE v. LIFE INSURANCE COMPANY OF GEORGIA, et al.). 1940753.
• Court: Alabama Supreme Court

Page 929

663 So.2d 929

Ex parte LIFE INSURANCE COMPANY OF GEORGIA.

(In re Sharen L. GREEN v. LIFE INSURANCE COMPANY OF GEORGIA, et al.;

Sheryl VANCHE v. LIFE INSURANCE COMPANY OF GEORGIA, et al.;

Christina SMITH v. LIFE INSURANCE COMPANY OF GEORGIA, et al.;

Janelle S. SMITH v. LIFE INSURANCE COMPANY OF GEORGIA, et al.; and Priscilla DUFFEE v. LIFE INSURANCE COMPANY OF GEORGIA, et al.).

1940753.

Supreme Court of Alabama.

June 9, 1995.

Davis Carr and James W. Lampkin II of Pierce, Carr & Alford, Mobile, I. David Cherniak, W. Alexander Gray, Jr. and E. Erich Bergdolt of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, Samuel Neil Crosby of Stone, Granade, Crosby & Blackburn, Bay Minette, for petitioner.

Bryan G. Duhe of Duhe & Barnard, P.C., Mobile, for respondents.

BUTTS, Justice.

Life Insurance Company of Georgia (hereinafter referred to as "Life of Georgia") petitions this Court for a writ of mandamus directing the Baldwin Circuit Court to (1) vacate its order requiring Life of Georgia to produce certain internal audit documents without affording it the opportunity to assert and be heard on its objections, and (2) vacate its order compelling production of certain customer lists by Life of Georgia in response to a "pattern and practice" request for production.

I.

In 1991, Garry Winsett and Richard Bohlken, as agents for Life of Georgia, persuaded Sharen L. Green, Sheryl Vanche, Christina Smith, Janelle S. Smith, and Priscilla Duffee (hereinafter collectively referred to as "the plaintiffs") to purchase life insurance policies. The plaintiffs claim, however, that Winsett and Bohlken represented to them, at that time, that they were enrolling in a retirement plan and did not disclose that they were, in fact, purchasing life insurance policies.

Subsequently, the plaintiffs sued Life of Georgia, Winsett, and Bohlken in the Mobile Circuit Court, alleging, among other things, breach of contract and fraud. On December 7, 1993, the plaintiffs' cases were consolidated, for discovery purposes only, and, on June 20, 1994, the action was transferred, pursuant to Life of Georgia's request, to the Baldwin Circuit Court.

During the discovery process, the plaintiffs, on January 23, 1995, requested Life of Georgia to produce any and all writings generated as a result of any internal investigations, accountings, or audits performed on the accounts of Winsett and/or Bohlken. On February 8, 1995, the plaintiffs noticed the depositions of Ronald E. Wallace and Jack Niedermayer, Life of Georgia employees who had performed an audit of Winsett's accounts after Winsett had resigned from Life of Georgia. As in the plaintiffs' deposition notice to Life of Georgia, Wallace and Niedermayer were requested to produce documents relating to the audit of Winsett's account.

On the advice of Life of Georgia's counsel, Wallace refused to answer any questions concerning the audit he had performed on Winsett's accounts, claiming that the information was protected by the work-product doctrine, the attorney-client privilege, and the self-critical analysis privilege. Additionally, Wallace testified that he was not in possession of any such documents.

On February 10, 1995, the plaintiffs moved for an order to show cause, seeking to have Life of Georgia held in contempt for failing to produce the audit of Winsett's accounts at Wallace's deposition. On February 15, 1995, Life of Georgia responded, alleging, among other things, that Wallace had been deposed in his individual capacity and not as a Rule 30(b)(6), Ala.R.Civ.P., representative and that it had until February 22, 1995, to respond to the plaintiffs' request for production. On that same date, the trial court granted the plaintiffs' motion for an order to show cause and ordered Life of Georgia to produce Wallace and the audit documents for another deposition to be held within 14 days.

On February 22, 1995, Life of Georgia responded to the plaintiffs' request for production of the audit documents, asserting that the investigation of Winsett's accounts was protected by the work-product doctrine, the attorney-client privilege, and the self-critical analysis privilege. Life of Georgia sought a protective order from the trial court. Life of Georgia moved for the trial court to reconsider its order to show cause; the court denied that motion, without a hearing, on February 27, 1995.

II.

Life of Georgia argues here that the trial court abused its discretion in issuing the order to show cause and in denying its motion for a reconsideration regarding the production of the audit documents. Specifically, Life of Georgia contends that the production was ordered prematurely and improperly through a deposition notice to Wallace, in his individual capacity, without allowing it the opportunity to assert that the audit documents were privileged and, therefore, not subject to discovery.

A party may serve on another party a request to produce designated documents that are not privileged. Rule...