General Motors Corp. v. Conkle, A96A1785

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: BEASLEY; BLACKBURN; BLACKBURN
• Citation: 226 Ga.App. 34,486 S.E.2d 180
• Parties: , 97 FCDR 1453 GENERAL MOTORS CORPORATION v. CONKLE et al.
• Docket Number: No. A96A1785,A96A1785
• Decision Date: 14 March 1997

Page 180

486 S.E.2d 180 226 Ga.App. 34, 97 FCDR 1453 GENERAL MOTORS CORPORATION
v.
CONKLE et al. No. A96A1785. Court of Appeals of Georgia. March 14, 1997.
Reconsideration Denied April 4, 1997.

Page 183

[226 Ga.App. 50] King & Spalding, Griffin B. Bell, Chilton D. Varner, Robert D. Hays, Jr., Sara E. Barton, Atlanta, Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Marietta, for appellant.

Butler, Wooten, Overby, Pearson, Fryhofer & Daughtery, James E. Butler, Jr., Columbus, Albert M. Pearson III, Atlanta, Peter J. Daughtery, Hatcher, Stubbs, Land, Hollis & Rothschild, James E. Humes II, Columbus, for appellees.

Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Atlanta, Cook, Noell, Tolley & Wiggins, J. Vincent Cook, Athens, Flournoy & Gentry, Matthew C. Flournoy, Marietta, Franklin, Taulbee, Rushing, Bunce & Brogdon, W.M. Brogdon, Jr., Statesboro, amici curiae.

[226 Ga.App. 34] BEASLEY, Judge.

As a sanction for discovery abuse the court struck General Motors' ("GM") answer and granted default judgment as to liability. The order was certified for immediate review, and we granted GM's application for interlocutory appeal.

The parents of Howell W. Conkle, Jr. and the administrator of his estate brought a wrongful death suit on September 18, 1992, against the owner and the operator of a 1987 Pontiac Grand Am. They alleged that Conkle was riding in the front passenger seat on August 3, 1991, when the car left the road and, on impact with the ground, Conkle was thrown out of an open door and was fatally injured. With leave of the court, the Conkles added the car's manufacturer GM as a defendant on June 27, 1993. They asserted liability based on negligent design, testing, and manufacture of the door latch, plus product liability, fraudulent concealment of defects and wrongful refusal to recall its products, and violation of OCGA § 10-1-393(a), the Georgia Fair Business Practices Act.

Along with the complaint served on GM on July 28, the plaintiffs served interrogatories and requests for certain documents covering GM's design, testing and post-delivery experience with the type of door latch in 40 million vehicles over an 18-year period. The Conkles granted GM's request for an extension to respond to discovery, stipulating a response date of September 14, 1993. GM responded on that [226 Ga.App. 35] date, stating what documents it would provide (e.g., documents relating to door openings and ejections in Pontiac Grand Ams although the request referred to "Type III door latches" in "any GM division"). GM also raised several objections, including that some requests asked for information protected by attorney-client privilege or the workproduct doctrine, and stated that some documents requested would be made available in a reading room at GM's headquarters in Michigan.

Two weeks later, on September 28, the Conkles moved for an order compelling GM to fully respond to their discovery requests, specifically objecting to the use of the out-of-state reading room and asserting that even the documents GM indicated it was willing to produce were not responsive to the requests.

The next day a discovery conference was held involving the parties and the court at which the Conkles objected to what they characterized as various GM discovery tactics including delay, nonresponsive answers to requests for production of documents, and insistence on a protective order that GM would not pursue. The court focused on discovery concerning the accident itself, and the parties agreed to try to complete discovery as to that aspect of the case in 90 days, with the recognition that resolution of accident issues might be dispositive of the case.

Approximately three weeks later (October 18), GM moved for a protective order under OCGA § 9-11-26(c)(7) to ensure confidentiality of what it regarded as trade secret information. After serving supplemental responses

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on November 1, GM moved the next day for a protective order precluding the Conkles from pursuing discovery concerning the door latches until it was shown the door had actually opened during the accident. This latter motion included affidavits of witnesses who stated the doors of the car were not open after the accident and could not be opened.

On November 29, a hearing was held on the Conkles' motion to compel. GM opposed it and sought the granting of its two motions for protective orders. The court did not rule until February 24, 1994, at which time it issued an order to control dissemination of documents reflecting information GM considered confidential, ruling they were to be produced in this case. "Confidential" was defined in accordance with the trade secrets provision of OCGA § 9-11-26(c)(7), and the order specifically stated it was not a waiver of GM's right to oppose discovery on other grounds. GM's second motion for a protective order, challenging door latch involvement, was not addressed. The court also ruled on the Conkles' motion to compel discovery, requiring production of all documents the Conkles had previously requested within 20 days. Neither order addressed GM's privilege claims, but they had not been the subject of a motion for protection.

[226 Ga.App. 36] GM served written supplemental responses and 93 boxes containing approximately 300,000 pages of documents on March 15, within the 20 days, but these were not all that the court required it to produce. It did not seek an extension. On March 29, two weeks after the deadline for the court-compelled production, and nine months after the requests for discovery were served, the Conkles moved for the sanction of default and also sought a ruling that all of GM's claims of privilege be deemed waived, all supplemental responses be stricken, and all costs of production be cast upon GM.

GM continued to produce documents past the court-ordered deadline, in March and April. It did not move for another protective order, but it did continue to claim that some documents were privileged, although it submitted no supporting evidence in the way of affidavits or otherwise. GM served on the Conkles a "privilege log" indexing the allegedly privileged 1,085 documents by "Bates numbers" on March 28.

On April 11, GM supplied the Conkles with a supplemental privilege log, superseding the first. GM deposited the material reflected in its privilege log with the court for in camera review on April 15.

Two weeks later, on April 27, the Conkles' counsel wrote counsel for GM expressing dissatisfaction with its responses and urging it to respond to the March 29 motion for sanctions with, in part, a proper response to the requests to produce. GM responded to the motion for sanctions on May 2, contending it was complying with the court's order to produce and complaining that the 20-day deadline was impossible to meet, given the number of documents requested. GM asserted that the court's order did not rule on GM's claims that some documents were privileged. It attached a 63-page appendix stating its position on the various unfulfilled requests to produce.

On June 3, the Conkles replied that GM's claims of privilege were unsupported and untimely. A month went by, and on July 7, the Conkles moved that the "privilege log" documents be produced, noting that GM had supplied no evidence supporting its privilege claims. GM responded a month later, on August 8, restating the privilege claims, but still without evidence or motion for protective order.

Eleven months later, on July 12, 1995, nearly 17 months after the deadline, GM served supplemental responses and produced documents reflecting an additional 1,200 crash tests. This occurred a week after the Conkles filed a supplemental brief in support of their motion for sanctions (July 5) that made particular reference to a discovery ruling in a pending suit in Texas. In that case, which the Conkles contend involves the same type door latch as the one at issue here, a special master was appointed for in camera inspection of allegedly privileged materials, and the Conkles attached the master's report to their brief. The brief recognized distinctions between Texas [226 Ga.App. 37] law on attorney-client privilege and the law of Georgia but suggested

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the report might be instructive nonetheless.

On August 11, while still holding the Conkles' motion for sanctions and GM's second motion for protective order in abeyance, the court granted the Conkles' motion to produce documents specifically claimed as privileged, stating that the special master's report in the Texas case was "carefully examined," that the court was satisfied Texas law accurately reflected Georgia law as to privilege claims, and that the court's decision was based "in large part" on the special master's report in the Texas case. The court declared that 882 of 1,085 documents submitted for in camera inspection were not privileged and that 203 were privileged. It ordered the non-privileged documents to be produced to the Conkles no later than August 23.

The day before the deadline, GM moved for reconsideration or stay of the August 11 order to produce as it pertained to 14 of the 882 documents, stating it was producing the remainder. For the first time, affidavits supporting the privilege claims were submitted. GM argued that as the court based its ruling on that of the Texas court, its ruling should be the same as to 13 documents which were common to both cases. The fourteenth document was considered privileged by the Texas court but not by the court in this case. The next day the court stayed its order as to production of the 14 documents.

As to GM's motion for reconsideration, the Conkles responded that it would be inappropriate because GM did not submit any evidence supporting the privilege claim previously. They also filed a supplemental brief in support of their original motion for sanctions, detailing what they contended was a pattern of discovery abuse by GM in this and other cases...