Loftin v. Gulf Contracting Co., A96A2359

• Decision Date: 08 January 1997
• Docket Number: No. A96A2359,A96A2359
• Citation: 480 S.E.2d 604,224 Ga.App. 210
• Parties: , 97 FCDR 83 LOFTIN v. GULF CONTRACTING COMPANY et al.
• Court: Georgia Court of Appeals

Page 604

480 S.E.2d 604

224 Ga.App. 210, 97 FCDR 83

LOFTIN v. GULF CONTRACTING COMPANY et al.

No. A96A2359.

Court of Appeals of Georgia.

Jan. 8, 1997.

Ronald C. Conner, Monica K. Gilroy, Conyers, for appellant.

Gulf Contracting, Inc., pro se.

P.R. Wood, pro se.

Laura A. Wood, pro se.

BIRDSONG, Presiding Judge.

Appellant/plaintiff John A. Loftin appeals the order of the superior court granting appellees/defendants' second renewed motion for sanctions and dismissing appellant's complaint and pleadings with prejudice.

Appellant Loftin and plaintiff Roger Swilley (referred to jointly as appellant and Swilley) brought suit for damages against appellees/defendants Gulf Contracting Company, P.R. Wood, and Laura Ann Wood for breach of implied contract, fraud, slander, libel, defamation, emotional distress, conversion, breach of fiduciary duty and negligence. Appellees filed various counterclaims.

On August 15, 1995, appellees initiated discovery and served a first request for production of documents (OCGA § 9-11-34) and notice to produce at trial (OCGA § 24-10-26). On September 15, 1995, appellant and Swilley filed their response to this request. The response stated inter alia that notwithstanding the objections to appellees' request to produce, appellant and Swilley "have available at the [law office of their attorney], for copying, all documents in their possession with regard to the above-requested discovery." Supplemental discovery answers were filed, in which appellant and Swilley in essence asserted they had furnished all requested documents in their possession or had listed in their response where such documents could be obtained, except for documents protected by the work product doctrine and attorney-client privilege. These latter documents were broadly identified as consisting of certain personal notebooks of appellant Loftin, certain credit card statements, and certain checkbook stubs belonging to the personal checking account of appellant Loftin--all of which allegedly had been prepared in contemplation of litigation. Appellees filed a motion for sanctions (OCGA § 9-11-37(d)) to strike and dismiss plaintiffs' complaint and pleadings with prejudice, an alternative motion to compel document production (OCGA § 9-11-37(a)) and an application for attorney fees (OCGA § 9-11-37(d)). In this motion, appellees averred their original request for production had been hand-delivered to appellant and Swilley's counsel and the response thereto was untimely, vague, evasive and incomplete. Appellees also averred that, while some of the requested documents had been produced untimely, "substantively all of the documents [e.g., banking records, check registries, cancelled checks, tax returns, ledgers, memos] sought by [appellees], have not been produced." Appellees contended that appellant and Swilley's failure to answer timely and to respond properly to the document production request was wilful or with conscious disregard for appellees' discovery rights. This motion was accompanied by a supporting affidavit of appellees' counsel; therein the attorney states the motion to produce was hand-delivered to plaintiffs' attorney, and that appellant's response was not received until Monday, September 18, 1995. Appellees' counsel also stated that on September 21, 1995, appellant produced "a few of the documents sought," and stated that the balance would not be produced based on the objections asserted in their response to the production request. Further appellees' counsel stated that during a prior Uniform Superior Court Rule 6.4(B) conference, appellant's and Swilley's attorney stated he would stand on the objections to discovery and would not produce any further material sought, notwithstanding being informed that the response was untimely and contained improper objections. Appellant and Swilley filed their response to appellees' motion for sanctions and a motion for a protective order (OCGA § 9-11-26(c)). A hearing was held on this motion and an order was filed on February 12, 1996. The trial court's order reflects that appellant's and Swilley's counsel stated in open court that complete photocopies of all documents sought had been produced and provided to appellees' counsel, except for the following three categories of documents withheld under claim of privilege, to wit: bank account checkbook stubs pertaining to the account of appellant Loftin, credit card statements, and personal notebooks of appellant Loftin. The trial court ordered Bates-numbering of the documents produced and directed that any further identification, production and/or attempted use by appellant and Swilley of any documents, otherwise sought by appellees in their request for production of documents, other than the materials subsequently identified in the order, and any documents that may thereafter be properly produced by appellant and Swilley under their duty to supplement their document production under appellees' requests to produce (served upon appellant and Swilley by hand-delivery on August 15, 1995), "may be brought to the court's attention by [appellees], for the imposition of appropriate sanctions" against appellant and Swilley. The order then identified the three categories of documents as those to which appellant and Swilley had asserted a claim of attorney-client privilege or work product exception. As to these documents appellant and Swilley had asserted that, pursuant to the instructions of appellant's prior attorney, appellant had made certain written comments on some of the materials in contemplation of litigation. The trial court deferred ruling on the legitimacy of the privilege/work product claim and directed the taking of the deposition of the former attorney to determine what instructions, if any, had been provided appellant. In the event that no such instructions were given by the attorney, appellant and Swilley were ordered to produce immediately the originals of the documents to which the privilege/work product claim had been asserted; any controversy surrounding the instruction could be brought to the court's attention for an appropriate hearing. The trial court did not rule at this time upon the merits of appellant and Swilley's motion for protective order. The deposition of appellant's former attorney was taken; the attorney testified she had given appellant Loftin general instructions, among which was that he needed to make notes, memoranda, records or recordings so that he could refresh his memory when testifying at a deposition or before a jury. The attorney, however, did not expressly testify that she had instructed appellant to make these notations on any of the existing documents in his possession.

Subsequently, appellees filed a renewed motion for sanctions to strike and dismiss with prejudice the complaint and pleadings of appellant Loftin. This motion asserted the existence of and purported to identify a substantial number of documents which had been withheld by appellant and had not been previously produced. Appellees asserted in their motion that appellant's conduct constituted either a wilful refusal to participate in discovery or conscious indifference to the discovery process. In a supporting affidavit, appellees' counsel stated that during the course of appellant's deposition (which subsequently was adjourned), appellant identified a number of documents which had not been produced and also some handwritten notes. Appellant claimed that check registers, deposit slips, credit card statements, and diaries in his possession had been retained pursuant to the trial court's order of February 12, 1996; however, he also stated that these documents would be introduced at trial. Appellees' counsel further stated in his affidavit that appellant testified as to the existence of approximately 15 inches of documents retained by him, and that less than two-and-one-half inches of Bates-numbered documents had been produced by appellant. Following a hearing as to this motion, an order and judgment was filed on April 5, 1996, directing appellant to produce, no later than April 12, 1996, "all" of the documents at issue. The order further directed that the materials shall be produced "at a time convenient to counsel for [appellees], so that the aforesaid materials may be reviewed, inventoried and copied" by appellees' counsel.

On April 16, 1995, appellees filed a second renewed motion for sanctions, citing OCGA § 9-11-37(a)(3), (b)(2)(C), and (d), and asserting appellant had wilfully failed and refused to comply with the trial court's order of April 5, 1996; this motion was supported by the affidavits of appellees' counsel and his paralegal. The supporting affidavits reflect that at about 9:40 a.m. on Friday, April 12, 1996, the paralegal received a phone call from appellant's co-counsel who wanted to speak with appellees' attorney who was then out of the office; appellant's co-counsel stated that documents were ready to be produced and an intern was being sent with the documents. At about 10:45 a.m., the intern arrived carrying one large banker box and one shoe box filled with documents. Appellees' counsel was contacted by his paralegal and advised of the situation. Appellees' counsel stated he was informed and believes that approximately 4,000 documents were produced which had not previously been produced in discovery. The office staff of appellees' counsel photocopied documents for approximately five hours without stopping for lunch. At approximately 3:40 p.m., the intern who had brought the documents stated she had been instructed by appellant's counsel to leave and take all of the original documents regardless of whether they had been copied. At approximately 4:05 p.m., despite objections to the removal of the documents, the intern departed with all the documents notwithstanding that only approximately 2,000 documents had been photocopied. Apparently on the following Monday, appellant's counsel offered to return...