Expedia Inc v. City Of Columbus

• Decision Date: 13 July 2010
• Docket Number: A10A0826.,No. A10A0563,A10A0563
• Citation: 305 Ga.App. 450,699 S.E.2d 600
• Parties: EXPEDIA, INC.v.CITY OF COLUMBUS (two cases).
• Court: Georgia Court of Appeals

305 Ga.App. 450

699 S.E.2d 600

EXPEDIA, INC.v.CITY OF COLUMBUS (two cases).

Nos. A10A0563, A10A0826.

Court of Appeals of Georgia.

July 13, 2010.

Buchanan & Land, Jerry A. Buchanan, Columbus; Jones Day, E. Kendrick Smith, Atlanta, for appellant.

Pope, McGlamry, Kilpatrick, Morrison & Norwood, Charles N. Pope, Neal K. Pope, R. Timothy Morrison, William U. Norwood III, Atlanta, Wade H. Tomlinson III, Alan G. Snipes, Columbus; Powell Goldstein, John R. Bielema, Jr., William H. Boling, Jr., Michael P. Carey, Atlanta, for appellee.

MILLER, Chief Judge.

These cases arise out of the Supreme Court of Georgia's decision in Expedia, Inc. v. City of Columbus, 285 Ga. 684, 681 S.E.2d 122 (2009). Therein the Supreme Court held that pursuant to OCGA § 48-13-50 and the Hotel-Motel Occupancy Excise Tax Ordinance of the City of Columbus (the “City”), Expedia must remit hotel occupancy taxes to the City based on the full room rate it charged its customers rather than the wholesale rate it agreed to pay the hotel for the room. Id. at 689(4), 681 S.E.2d 122. ¹ Expedia's liability for past taxes, penalties, interest, costs, expenses, and attorney fees remain to be decided in the trial court.

In Case Nos. A10A0563 and A10A0826, Expedia appeals by direct and discretionary appeals, respectively, from a September 15, 2009 discovery order (the “September 15 order”) entered below in which the trial court adopted the report of its appointed special master and granted the City's motion to strike privilege claims, work product immunity, and to compel the production of documents. In its appellate brief in Case No. A10A0826, Expedia addresses the threshold question of jurisdiction common to each of its appeals. In this regard, Expedia contends that the September 15 order is immediately reviewable before this Court (i) as a collateral order, (ii) as “in substance and effect” a final judgment pursuant to OCGA § 5-6-34(a)(1), and (iii) as in furtherance of this Court's original jurisdiction to grant mandamus relief. Finding that the trial court's September 15 order is an interlocutory discovery order, not a collateral order from which a direct appeal may be taken; no other basis for subject matter jurisdiction exists; and that in seeking discretionary review Expedia failed to comply with the interlocutory procedures in OCGA § 5-6-34(b), we dismiss both cases for lack of subject matter jurisdiction.²

“Trial courts have broad discretion to control discovery, including the imposition of sanctions. Absent the showing of a clear abuse of discretion, a court's exercise of that broad discretion will not be reversed.” (Citations and punctuation omitted.) Deep South Constr. v. Slack, 248 Ga.App. 183, 185(1), 546 S.E.2d 302 (2001).

The record shows that in October 2007, the City challenged numerous claims of privilege which Expedia asserted in connection with its document production, but received no response for almost a year. As a result, the City requested the appointment of a special master to address discovery issues, which request the trial court granted. The City thereafter moved to strike Expedia's privilege claims and asked the Special Master to order production of the subject documents for in camera review. Expedia moved to recuse the Special Master claiming that he had prejudged its case, but nonetheless produced its documents. And following a hearing on the City's motion to strike and the trial court's denial of Expedia's motion to recuse, the Special Master overruled Expedia's privilege claims, finding, among other things, that such objections were waived under the crime-fraud exception.³ The instant appeals ensued after the trial court entered its order adopting the Report of the Special Master upon finding that Expedia had failed to timely file its exceptions thereto or move to recommit.

1. By both its appeals, Expedia claims that the September 15 order is immediately reviewable before this Court as within the collateral order exception to the final judgment rule. We are not persuaded.

The collateral order doctrine permits appeals from a small category of decisions “that are [(i)] conclusive, [(ii)] that resolve important questions separate from the merits, and [(iii)] that are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint v. Chambers County Comm., 514 U.S. 35, 42(II), 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Scroggins v. Edmondson, 250 Ga. 430, 431(1)(c), 297 S.E.2d 469 (1982) (acknowledging that the court has adopted the three-part Cohen test (the “ Cohen factors” to which Swint refers, as above)). The collateral order exception is narrowly applied to avoid “[p]ermitting piecemeal, prejudgment appeals,” to promote “ ‘efficient judicial administration,’ ” and to protect “the prerogatives of [trial] judges, who play a ‘special role’ in managing ongoing litigation.” (Citations omitted.) Mohawk Indus. v. Carpenter, --- U.S. ----, 130 S.Ct. 599, 605(II)(A), 175 L.Ed.2d 458 (2009), affirming Carpenter v. Mohawk Indus., 541 F.3d 1048 (11th Cir.2008).

Inasmuch as collateral order appeals are not necessary to ensure the effective review of orders adverse to the attorney-client privilege (and related claims of privilege, as here ⁴) ( Mohawk, supra, 130 S.Ct. at 606(II)(B)), we need not determine whether such orders satisfy the remaining Cohen factors, i.e. conclusiveness and separateness.

The attorney-client privilege which protects confidentiality in furtherance of effective representation and the due administration of justice, is of unquestionable importance.

The crucial question [in the context of the collateral order doctrine], however, is not whether an interest is important in the abstract it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders. We routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system. See, e.g. Richardson-Merrell, Inc. [ v. Koller], 472 U.S. 424, 426, 105 S.Ct. 2757, 86 L.Ed.2d 340 [(1985)] (holding an order disqualifying counsel in a civil case did not qualify for immediate appeal under the collateral order doctrine); Flanagan v. United States, 465 U.S. 259, 260[, 104 S.Ct. 1051, 79 L.Ed.2d 288] (1984) (reaching the same result in a criminal case, notwithstanding the Sixth Amendment rights at stake). In Digital Equipment [ Corp. v. Desktop Direct, Inc., 511 U.S. 863, 881, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994)], we rejected an assertion that collateral order review was necessary to promote the public policy favoring voluntary resolution of disputes.... In our estimation postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege.

(Punctuation omitted; emphasis supplied.) Mohawk, supra, 130 S.Ct. at 606-607(II)(B).

The improper disclosure of privileged material, for example, may be remedied by the appellate courts in a variety of ways: (i) “by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence” ( Mohawk, supra, 130 S.Ct. at 607(II)(B)); and (ii) by means of which Expedia has not availed itself of in these cases, i.e., upon a contempt citation entered for refusal to comply with a discovery order and challenging the order on direct appeal (id. at 608(II)(B);⁵ Gen. Motors Corp. v. Hammock, 255 Ga.App. 131, 131-132, 564 S.E.2d 536 (2002)); upon interlocutory appeal when a “privilege ruling involves a new legal question or is of special consequence....” ( Mohawk, supra, 130 S.Ct. at 607(II)(B)); or upon petition for writ of mandamus “when a disclosure order amounts to a judicial usurpation of power or a clear abuse of discretion, or otherwise works a manifest injustice.” (Citations and punctuation omitted.) Id.

Expedia asserts that the September 15 order is invasive of the attorney-client privilege. “But deferring review until final judgment does not meaningfully reduce the ex ante incentives for full and frank consultations between clients and counsel.” Mohawk, supra, 130 S.Ct. at 607(II)(B). Specifically, even were collateral appeals from discovery orders permissible, the confidentiality attaching to attorney-client communications is not inviolate, and those involved must always

account for the possibility that they will later be required by law to disclose their communications for a variety of reasons-for example, because they misjudged the scope of the privilege, because they waived the privilege, or [as the special master here determined,] because their communications fell within the privilege's crime-fraud exception.

Id. And notwithstanding Expedia's claims of special circumstances warranting immediate review, that a fraction of orders adverse to the attorney-client privilege may nevertheless harm individual litigants “in ways that are only imperfectly reparable” by reversal of a final judgment does not justify making all such orders immediately appealable as of right. Digital Equip., supra, 511 U.S. at 872, 114 S.Ct. 1992. “In short, the limited benefits of applying ‘the blunt, categorical instrument of [the] collateral order appeal’ to privilege-related disclosure orders simply cannot justify the likely institutional costs.”

Mohawk, supra, 130 S.Ct. at 608(II)(B); compare In re Paul, 270 Ga. 680, 683, 513 S.E.2d 219 (1999); Britt v. State, 282 Ga. 746, 748-749(1), 653 S.E.2d 713 (2007) (collateral order exception to final judgment rule allowed immediate appeal from rulings adverse to nonparty reporters and Public Defender Council, respectively).

Given the foregoing, the collateral order exception to the final judgment rule does not extend to the September 15 order. As an interlocutory discovery order, a direct appeal...