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Fein v. Chenault

Court of Appeals of Georgia

October 22, 2014

FEIN et al.

Reconsideration denied December 5, 2014 -- Cert. applied for.

Disqualification of counsel. Fulton State Court. Before Judge Bessen.

Carlock, Copeland & Stair, Thomas S. Carlock, Balch & Bingham, Michael J. Bowers, Christopher S. Anulewicz, Nall & Miller, George R. Neuhauser, Clinton F. Fletcher, for appellants.

Harris Penn Lowry, Darren W. Penn, The Mabra Firm, Ronald E. Mabra, Jr., Franklin Law, Rebecca C. Franklin, for appellees.

BARNES, Presiding Judge. Boggs and Branch, JJ., concur.


Barnes, Presiding Judge.

Florida attorney Frederick J. Fein and his client Continental Tire The Americas, LLC (Continental), filed a direct appeal of the trial court's order in this personal injury case finding that Fein violated the Georgia Rules of Professional Conduct but declining to revoke his pro hac vice status. Instead, the court restricted Fein's advocacy by designating local counsel as lead counsel for defendant Continental and directing Fein not to prepare or file pleadings, contact the court or its staff, or present argument or evidence at any future court proceeding. The court noted that Fein would be permitted to attend all future proceedings, confer with his client and local counsel, and sit at counsel table during court. Because this court lacks jurisdiction to consider this issue on direct appeal while the case remains pending in the trial court, we must dismiss the appeal.

The underlying case arose when Marlos Chenault and his wife filed suit against multiple defendants after Chenault was involved in a car wreck, allegedly caused by a defective tire, that resulted in his paralysis. The Chenaults brought product liability and negligence claims against Continental and General Motors Corporation (GM). GM is not involved in the issue before this court now. Discovery disputes regarding the disclosure of certain rubber compound formulas and other information Continental Tire deemed to be trade secrets led to a telephone conference with the trial court, which resulted in the court ordering Continental on May 23, 2013, to disclose certain information pursuant to a protective order by June 11, 2013.

On May 31, 2013, Continental filed an " Emergency Motion for Reconsideration or, in the Alternative, Request for a Certificate of Immediate Review of the Court's Order of May 23, 2013," arguing that the telephonic hearing was inadequate to provide the trial court with the necessary case law and evidence,

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that the information was " highly proprietary trade secrets that are not subject to disclosure," that its production would cause irreparable harm, and that Chenault had not shown sufficient need for the information. It argued that " courts across the country have repeatedly found that tire companies' rubber compound formulas ... are trade secrets whose secrecy and value in being maintained as secrets justify excluding them from the discovery process," even with a protective order. Continental attached an affidavit from its director of product analysis, who averred that the company's rubber compound formulas are so highly protected they " are not disclosed even pursuant to a protective order."

Chenault responded on May 31, 2013, and argued that the information sought was not a trade secret and was crucial to his [330 Ga.App. 223] claim. He further argued that the cases cited by Continental for the proposition that courts have refused to allow discovery of the information sought actually dealt with different information, and that " a number of other courts have in fact ordered both the disclosure of halobutyl content in tires, as well as the full formulas." [1] Chenault attached orders from Missouri, Florida, and New York courts directing Cooper Tire Company to disclose information regarding the content or existence of halobutyl in the inner liner of the subject tires, and an order from a Montana court directing Continental to disclose tire compound formulas.

The ten-day window for issuing a certificate of immediate review passed without a ruling from the trial court. On June 4, 2013, Continental filed an emergency motion to stay that portion of the trial court's May 23 order directing it to produce certain information by June 11, 2013. Chenault opposed the stay, noting in a brief filed on June 10, 2013, that Continental was citing to a legal standard inapplicable in Georgia, which required movants to show that the disclosure of confidential information was " necessary." Chenault also pointed out that while Fein represented that a court had never required his clients to produce rubber compound information, he was lead counsel in a Florida case and a DeKalb County, Georgia, case, in which the tire manufacturer he represented was ordered to disclose that information.

On June 11, 2013, the trial court denied Continental's motion to stay and for reconsideration, reminding the parties of the existing protective order and giving Continental until June 14, 2013, to produce the documents and information previously ordered. On June 13, 2014, Continental requested a certificate of immediate review of the court's June 11 order, which the court denied later that same day.

On June 14, 2013, Continental filed a notice of appeal from the court's discovery orders of May 23, 2013 and June 11, 2013, and also filed an application for interlocutory appeal with this court. This court dismissed the interlocutory appeal on July 11, 2013, and dismissed the direct appeal on August 20, 2013, finding in both cases that the discovery issue was neither an exceptional one reviewable absent a certificate of immediate review, nor subject to the collateral source exception to the final judgment rule.

Meanwhile, on June 22, 2013, the trial court sua sponte issued a [330 Ga.App. 224] rule ...

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