Rta Strategy, LLC v. Silver Comet Terminal Partners, LLC.

• Decision Date: 06 August 2018
• Docket Number: A18A1027,A18A1026
• Citation: 817 S.E.2d 720,347 Ga.App. 266
• Court: Georgia Court of Appeals
• Parties: RTA STRATEGY, LLC et al. v. SILVER COMET TERMINAL PARTNERS, LLC. Lake et al. v. Silver Comet Terminal Partners, LLC.

347 Ga.App. 266

817 S.E.2d 720

RTA STRATEGY, LLC et al.

v.SILVER COMET TERMINAL PARTNERS, LLC.

Lake et al.

v.Silver Comet Terminal Partners, LLC.

A18A1026

A18A1027

Court of Appeals of Georgia.

August 6, 2018

Reconsideration Denied September 10, 2018

Certiorari Denied April 29, 2019

The Geary Law Firm, Donald P. Geary, for appellant (case no. A18A1026).

Chalmers Burch & Adams, Carolyn C. Burch, for appellant (case no. A18A1027).

Chilivis Cochran Larkins & Bever, Anthony L. Cochran, Emily C. Ward, for appellee.

King & Spalding, Chilton D. Varner, Letitia A. McDonald, amici curiae (case no. A18A1027).

Ray, Judge.

Both of these appeals concern whether non-parties to litigation may be compelled to provide information regarding the identities of members and contributors to The Committee to Protect Paulding County, Inc. ("CPPC"), which is a 501 (c) (4) ( 26 USC § 501 (c) ) social welfare organization formed to fight the addition of commercial passenger service at the Paulding County Airport. In Case No. A18A1026, RTA Strategy, LLC v. Silver Comet Terminal Partners, LLC , the respective appellants argue that the trial court erred in denying a motion for a protective order seeking to prevent the depositions of RTA Strategy and R. Thompson & Associates pursuant to OCGA § 9-11-30 (b) (6) (‘‘Rule 30 (b) (6)’’), as well as in denying their motion for reconsideration. In Case No. A18A1027, Lake v. Silver Comet Terminal Partners, LLC , the respective appellants contend that the trial court erred in granting Silver Comet’s motion to compel the disclosure of certain information at a deposition of CPPC, also pursuant to Rule 30 (b) (6), and in compelling a second deposition of its chief executive officer and director, Chip Lake.¹ The cases are consolidated for our review.

The appellee in both cases, Silver Comet Terminal Partners, LLC ("Silver Comet"), entered into a bond agreement with the Paulding County Airport Authority (the "Airport Authority") on October 22, 2013, in which Silver Comet agreed to purchase bonds to expand the airport’s taxiways to a size large enough to accommodate commercial flights. Many Paulding County citizens opposed the commercialization of the airport. CPPC was created to organize local opposition to the airport expansion. CPPC hired appellant Lake to coordinate the grassroots effort. CPPC also hired appellants RTA Strategy and R. Thompson & Associates as consultants.

In the county commission election following the decision to pursue commercializing of the airport, some commissioners who had supported commercialization of the airport were voted out of office and replaced with commissioners opposing commercialization. The newly elected commissioners passed Resolution 15-01, which had the practical effect of halting the commercialization effort.² Silver Comet argued that the value of its bond agreement decreased dramatically, as it had been positioned to profit from the commercialization of the airport. Accordingly, Silver Comet stopped making bond payments, and Paulding County sued.

The only remaining claims in the underlying litigation are Paulding County’s claims for breach of contract stemming from Silver Comet’s failure to make bond payments and its corresponding claim for attorney fees, and Paulding County’s declaratory judgment claim against the Airport Authority. After Paulding County sued, Silver Comet raised defenses of failure of consideration and bad faith.

During the course of the underlying litigation, Silver Comet sought to discover, inter alia, why and how Paulding County passed Resolution 15-01 through depositions of RTA Strategy, R. Thompson & Associates, Lake, and CPPC. Specifically, Silver Comet was seeking to learn how Lake became chief executive officer of CPPC, how Thompson became treasurer or chief financial officer of CPPC, the identity of CPPC’s members and contributors, and whether Delta Air Lines was a contributor to CPPC and therefore behind Resolution 15-01.

Silver Comet deposed Lake and Rick Thompson, whose company is R. Thompson & Associates doing business as RTA Strategy. During these depositions, both men were asked the identity of donors to CPPC. They refused to answer questions regarding members and contributors. Silver Comet also sought a Rule 30 (b) (6) deposition of CPPC as to the same information.

Silver Comet moved to compel, and Lake at various points countered that the information Silver Comet sought was not relevant, was not likely to lead to the discovery of admissible evidence, and was privileged. RTA Strategy and R. Thompson & Associates moved for a protective order. The trial court granted Silver Comet’s motion to compel and denied RTA Strategy and R. Thompson & Associates’ motion for a protective order. It also denied the motions for reconsideration. The instant appeals followed.

In both Case Nos. A18A1026 and A18A1027, the appellants contend that the trial court erred in requiring disclosure of information that is not discoverable for reasons of relevance and privilege under OCGA § 9-11-26 (b) (1) ; in requiring disclosure of the identity of and contributors to a 501 (c) (4) organization, as these are protected under federal law and the First Amendment; and in finding that the crime-fraud exception applies, thus requiring disclosure of information otherwise protected by attorney-client privilege.

As a general rule, we review the denial of a motion to compel discovery only for an abuse of discretion. Lovell v. Ga. Trust Bank , 318 Ga. App. 860, 862 (1), 734 S.E.2d 847 (2012) ; see Caldwell v. Church , 341 Ga. App. 852, 861 (4), 802 S.E.2d 835 (2017) (trial court’s decision to grant or deny a motion for a protective order is reviewed for abuse of discretion).

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery.... It is not ground for objection that the information sought will be inadmissable at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence[.]

(Emphasis supplied). OCGA § 9-11-26 (b) (1). See generally Sechler Family Partnership v. Prime Group, Inc. , 255 Ga. App. 854, 857 (2), 567 S.E.2d 24 (2002) (discovery requested from nonparties must be relevant and nonprivileged). This Court has further interpreted "relevant" broadly, to mean "anything that is or may become an issue in the litigation." (Citation and punctuation omitted.) Ewing v. Ewing , 333 Ga. App. 766, 768 (1), 777 S.E.2d 56 (2015). See generally Reece v. Selmonosky , 179 Ga. App. 718, 718 (2), 347 S.E.2d 649 (1986) (upholding trial court’s grant of motion for protective order where appellant argued that information sought was relevant to whether appellees knew or should have known of the risk of surgery to appellant, but appellant’s interrogatories seeking names and addresses of patients upon whom appellees had performed surgery were not limited to surgeries which had presented problems).

As is outlined more fully below, we find that the information requested by Silver Comet is not relevant to the subject matter of the underlying dispute, nor does it appear reasonably calculated to lead to the discovery of admissible evidence. Therefore, the trial court erred in granting the motion to compel and in denying the motion for a protective order and for denying reconsideration, and we reverse in Case Nos. A18A1026 and A18A1027.

1. Again, we...