McKinnon v. Smock
| Decision Date | 01 July 1993 |
| Docket Number | A93A0645,Nos. A93A0644,s. A93A0644 |
| Citation | 209 Ga.App. 647,434 S.E.2d 92 |
| Parties | McKINNON et al. v. SMOCK. SMOCK v. McKINNON et al. |
| Court | Georgia Court of Appeals |
Alston & Bird, Robert D. McCallum, Jr., James C. Grant, Atlanta, for appellants.
Alan Z. Eisenstein, Atlanta, for appellee.
In this medical malpractice case, we granted defendants' application for interlocutory appeal from the trial court's order resolving certain discovery disputes. Plaintiff filed a cross-appeal from that order.
1. Defendants Frank W. McKinnon, M.D., and Marietta Orthopedic Associates, P.A., argue the trial court erred by ordering the continuation of Dr. McKinnon's deposition. The trial court ordered Dr. McKinnon to respond to plaintiff's questions concerning what medical records of plaintiff Dr. McKinnon reviewed in preparation for his deposition and when Dr. McKinnon first saw the operative report prepared by Dr. Hammesfahr. Dr. McKinnon's counsel objected to both questions on the grounds that the questions invaded the attorney/client privilege and directed Dr. McKinnon not to answer the questions. We hold that the trial court properly concluded that these questions do not call for privileged information. Accordingly, we find the defendants' contention that the trial court erred by continuing the deposition of Dr. McKinnon to be without merit.
2. Defendants contend the trial court erred by failing to require plaintiff to produce correspondence that was prepared in anticipation of litigation, but was disclosed to plaintiff's testifying expert and may have influenced the expert's opinion. Essentially defendants argue that when an attorney makes available to an expert a document that would otherwise be subject to work product protection pursuant to OCGA § 9-11-26(b)(3) that document is discoverable pursuant to OCGA § 9-11-26(b)(4) authorizing discovery relating to expert witnesses.
This enumeration of error presents a question that has not yet been addressed by a Georgia appellate court, but which has been addressed by several federal courts. 1 We are persuaded by the rationale followed by the majority of courts which have addressed this question. See, e.g., Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3rd Cir.1984); United States v. 215.7 Acres of Land, 719 F.Supp. 273 (D.Del.1989); Hamel v. Gen. Motors Corp., 128 F.R.D. 281 (D.Kan.1989); Hydramar, Inc. v. Gen. Dynamics Corp., 119 F.R.D. 367 (E.D.Pa.1988); North Carolina Elec. Membership Corp. v. Carolina Power, etc., Co., 108 F.R.D. 283 (M.D.N.C.1985). We hold that when a document is prepared in anticipation of litigation by a party's counsel and then disclosed to that party's testifying expert the disclosure does not waive the work product protection that should be accorded the document and the document may only be discovered "upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means." OCGA § 9-11-26(b)(3).
We agree with the Third Circuit Court of Appeals that "the marginal value in the revelation on cross-examination that the expert's view may have originated with an attorney's opinion or theory does not warrant overriding the strong policy against disclosure of documents consisting of core attorney's work product." Bogosian, 738 F.2d at 595. We also adopt the procedure set forth in Bogosian to protect attorney work product when the document sought contains both facts and legal theories. When the parties are unable to resolve a conflict concerning what portions of such a document should be made available to an adverse party, the parties shall submit the disputed document to the trial court along with their argument concerning which portions should be made available to the adverse party. The trial court shall then conduct an in camera inspection of the document and instruct the attorney claiming work product protection how the document should be altered for disclosure to the adverse party. This case is remanded to the trial court for proceedings consistent with this procedure.
3. Plaintiff argues the trial court erred by requiring him to produce copies of his income tax returns for the years 1985 through 1990. Income tax returns are not " ...
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Konle v. Page
...as additional defendants.3 This basic rule has been applied to cases outside the personal injury realm as well. See McKinnon v. Smock, 209 Ga.App. 647, 434 S.E.2d 92 (1993), aff'd, 264 Ga. 375, 445 S.E.2d 526 (1994) (medical malpractice case); Ashton v. Cherne Contracting Corp., 102 Md.App.......
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