Sorrells v. Cole

• Decision Date: 18 January 1965
• Docket Number: No. 40959,No. 3,40959,3
• Citation: 111 Ga.App. 136,141 S.E.2d 193
• Parties: Paul J. SORRELLS v. Marvin C. COLE
• Court: Georgia Court of Appeals

Page 193

141 S.E.2d 193

111 Ga.App. 136

Paul J. SORRELLS v. Marvin C. COLE.

No. 40959.

Court of Appeals of Georgia, Division No. 3.

Jan. 18, 1965.

Rehearing Denied Feb. 8, 1965.

Syllabus by the Court

1. Where the sanctions of Code Ann. § 38-2111 were invoked for failure or refusal of a witness to answer interrogatories, the court where the original suit was filed could hold the witness in contempt either because he waived venue by a general appearance or because of the court's inherent power.

2(a). Whether or not answering interrogatories will be an undue burden or expense is a matter for the sound discretion of the trial court.

(b). Statements procured by an adjuster are not entitled to protection as 'work product' unless obtained at the direction or under the supervision of an attorney.

(c). A witness from whom testimony is sought under the deposition by written interrogatory procedure of Code Ann. § 38-2106 (Fed.Civ.Proc. Rule 31) is not required to produce any document, statement, record or other tangible thing unless pursuant to a subpoena duces tecum.

This case deals with discovery proceedings ancillary to a damage suit by Cole against Alfred and George Fricks. Subsequently Cole filed notice of interrogatories to be submitted to one Sorrells, claims manager for Cotton States Mutual Insurance Company, the defendants' liability insurer. The interrogatories sought to discover whether Cotton States made an investigation of the collision, whether Cole made a statement to an adjuster, whether either defendant or the wife of one of them made a statement to an adjuster, whether any witnesses saw the wreck and made any statements, and whether photographs were made of the wreck and repair estimates taken. Wherever the interrogatory answer indicated a statement had been taken, a copy was requested to be attached to the answer.

After other events detailed in the opinion, Sorrells was held in contempt for not answering the interrogatories. He excepts to the overruling of his objections to the interrogatories, to an order requiring him to answer them, to the overruling of his plea to the jurisdiction and of his motion to dismiss the contempt citation.

Parker, Clary & Kent, H. J. Martin, Rome, for plaintiff in error.

Clinton J. Morgan, Wright, Walther & Morgan, Rome, for defendant in error.

EBERHARDT, Judge.

1. The first issue is whether Floyd Superior Court was authorized to require Sorrells to answer the interrogatories under pain of punishment for contempt. Plaintiff proceeded under the provisions of the Depositions and Discovery Act of 1959 (Code Ch. 38-21) and paticularly of § 38-2106 for the taking of Sorrells' deposition by written interrogatories. After service on him of the interogatories and notice to appear at a time stated before a named notary in Fulton County to make answers, he filed objections in Floyd Superior Court where the cause in which they were being taken pended, and when these were overruled he was ordered to make answers. He sought a review of the order but we held the ruling not appealable at that stage. Fricks v. Cole, 109 Ga.App. 143(3), 135 S.E.2d 512.

Upon his failure to appear and answer Sorrells was cited by Floyd Superior Court and, upon a hearing, adjudged to be in contempt, was fined $100 and again directed to answer upon pain of incarceration in the common jail. From that order and judgment he now appeals.

Sorrells urges that Floyd Superior Court was without jurisdiction to require him to make answer to the interrogatories, relying upon Code Ann. § 38-2111 which provides, inter alia, that upon refusal ¹ of a deponent to answer any question propounded the proponent may 'on reasonable notice to all persons affected thereby, * * * apply to the court in the county where the deposition is taken for an order compelling an answer' and that if the witness 'refuses to answer any question after being directed to do so by the court in the county in which the deposition is being taken, the refusal may be considered a contempt of that court.' It is his contention that the application for an order requiring answer to the interrogatories could be made to no court other than the one in the county where they were to be answered--in this case Fulton Superior Court--and that no other court could order him to answer or adjudge him in contempt for failure to do so.

The provisions of Code Ch. 38-21 follow very closely the Federal Rules of Civil Procedure, ² and thus resort to Federal cases interpreting them as persuasive authority is proper. McCallum v. Twiggs County Bank, 172 Ga. 591(1), 158 S.E. 302, 74 A.L.R. 932; Moore v. Atlanta Transit Co., 105 Ga.App. 70, 72(1), 123 S.E.2d 693.

Apparently the situation has not arisen often under the Federal Rules, ³ but when it has the basis for invoking the jurisdiction of the court in the location where the deposition is being taken, the jurisdiction is that of the person--not of the subject matter. Gottieb v. Isenman, 15 F.R.D. 88 (D.C.Mass.); Lincoln Laboratories, Inc. v. Savage Laboratories, Inc., 27 F.R.D. 476 (D.C.Del.). Applying that principle under our Discovery Act we are of the opinion that when Sorrells filed objections to the interrogatories and sought a ruling thereon in Floyd Superior Court he waived the matter of venue or jurisdiction of his person. As to the matter of the interrogatories, the filing of his objections in the court where the cause pended was in the nature of a general appearance. Code § 81-503; Ga. Procedure & Practice, § 5-18. He thus submitted himself to the jurisdiction of Floyd Superior Court, whose orders and judgments he was bound to respect and observe.

There is yet another line of cases that would justify this result. 'The contempt proceeding was not such a case as is contemplated by law in the provision that the venue shall be in the county where an offense was committed or in the county of the residence of the respondent. In such cases the jurisdiction of the court trying the case in which evidence is taken by depositions extends to every person in the State whose testimony is being taken by deposition and to every county wherein such testimony is being taken.' Bradley v. Simpson, 61 Ga.App. 495(3), 6 S.E.2d 424. Other cases holding that contempt proceedings are ancillary to the primary action and do not depend upon an independent jurisdiction of the person are Bilbo v. Bilbo, 167 Ga. 602, 146 S.E. 446; Goodrum v. Goodrum, 202 Ga. 135, 42 S.E.2d 450, and Taylor v. Taylor, 216 Ga. 767, 768(1), 119 S.E.2d 571. Cf. Code Ann. § 38-1508 where provisions are made for requiring the attendance of nonresident witnesses.

We conclude that the proceedings for obtaining an order requiring the interrogatories to be answered and the adjudication of contempt for failure to comply with the order in Floyd Superior Court were authorized under either theory.

2. The objections to the deposition by interrogatories (Code Ann. § $38-2106; Fed. Rule 31) raises the issues that: (a) answering would entail considerable expense and much difficulty that would have to be borne by the witness or his employer, neither of whom was a party to the pending cause, (b) the information sought is protected as the work product of an adjuster regularly employed by the insurance company, and (c) there had been no showing of good cause by the plaintiff as a prerequisite to the granting of the order requiring answers to be made attaching copies of the documents in question.

(a) Our consideration assumes that the matter of whether the answering of the interrogatories would involve an undue burden or expense was properly considered by the trial court even though no motion for a protective order was made under Code Ann. § 38-2106(d) (Fed.Rule 31(d)). See 4 Moore's Federal Practice, § 30.16 at n. 5 (1963 ed.). The single fact that the answering of the interrogatories will entail expense and trouble to the witness or his employer is not sufficient to escape the requirement of making answer; it is only when the court is satisfied that an undue burden will result that objections should be sustained on that basis. 2A Barron & Holtzoff, Federal Practice & Procedure, § 768, p. 325 (1961 Ed., 1963 Supp.); 4 Moore's, supra at § 33.27.

Since the objections were overruled and nothing in the record indicates any abuse in that respect, we conclude that the matter was considered and properly resolved.

(b) The 'work product' protection delineated in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, and recognized in Setzers Super Stores of Georgia, Inc. v. Higgins, 104 Ga.App. 116, 121 S.E.2d 305 is for the attorney. There is no 'work product' protection to an investigator, adjuster, claims agent and the like, and, unless the statements taken by an adjuster or claims agent are procured under circumstances bringing them within the ambit of the attorney's work product, the protection is not extended. For a discussion of this situation, see Atlantic Coast Line &c. Co. v. Daugherty, 110 Ga.App. ----, 141 S.E.2d 112. See also, Barron & Holtzoff, supra at § 652, p. 133; Annot. 96 A.L.R.2d 125. Cf. Dixie Mfg Co. v. Ricks, 153 Ga. 364(1), 112 S.E. 370. It does not appear from the record that the statements sought to be discovered would be entitled to protection.

(c) A witness can not be required to produce documents, records, statements, etc. for use in the taking of a deposition or an interrogatory unless he has been served with a subpoena duces tecum under Code § 38-2112. ⁴ See 4 Moore, supra at § 34.02(4); 2A Barron & Holtzoff, supra at § 644.1, n. 81. Code § 2109(b) applies only to parties, who may be required to produce these items by the serving of a notice to produce. ⁵

Because Code Ann. § 38-2109(a) (Rule 34) and Code Ann. § 38-2112 (Rule 45) must be construed in pari materia, 'good cause' for the production of documents must exist under both procedures. 4 Moore, supra at § 26.10, n. 14; 2B Barron & Holtzoff, supra at § 1002, n. 19.1,...