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First Professional Insurance Co. v. Owen, Gleaton, Egan, Jones & Sweeney, LLP

United States District Court, N.D. Georgia, Atlanta Division

April 22, 2015

FIRST PROFESSIONAL INSURANCE COMPANY, Plaintiff,
v.
OWEN, GLEATON, EGAN, JONES & SWEENEY, LLP and AMY J. KOLCZAK, Defendants.

ORDER

RICHARD W. STORY, District Judge.

This case comes before the Court on Defendants' Second Motion to Compel [119], Defendants' Motion to Expedite Response to Defendants' Second Motion to Compel [121], Warren N. Coppedge, Jr.'s Motion to Quash Subpoena Duces Tecum [129], William Morgan Akin's Motion to Quash or Modify Subpoena [133], Plaintiff's First Motion to Compel Defendants to Produce Documents [139], Plaintiff's Motion to Compel Production of Documents Related to Defendants' Financial Condition [149], Plaintiff's Motion for Protective Order [151], Plaintiff's Motion to Reconvene Deposition [154], and Defendants' Motion to Disqualify Attorney and Medical Malpractice Experts [157]. After reviewing the record, the Court enters the following Order.

Background

This legal malpractice case arose from Defendant Amy J. Kolczak's violation of a protective order while serving as defense counsel in a medical malpractice case in Bartow County Superior Court.[1] The protective order at issue in the underlying case prohibited any interviews with the plaintiff's treating physicians without providing plaintiff's counsel prior notice and an opportunity to attend the interview. Ms. Kolczak later had a conversation with a treating physician outside the presence of plaintiff's counsel, which the trial judge concluded was a violation of the protective order. To sanction the violation, the trial judge struck the defendants' answer. Plaintiff First Professional Insurance Company ("FPIC"), the defendants' insurer, brought this action against Defendants Ms. Kolczak and Owen, Gleaton, Egan, Jones & Sweeney, LLP, arguing it was forced to settle a claim with meritorious defenses as a result of Ms. Kolczak's alleged malpractice. The parties have filed various motions concerning discovery issues and how trial will proceed in this action.

Discussion

I. Various Discovery Motions

Defendants' Second Motion to Compel [119] is DENIED. It appears that documents Plaintiff is required to produce have now been produced. In addition, Defendants' Motion to Expedite Response to Defendants' Second Motion to Compel [121] is DENIED as moot.

Warren N. Coppedge, Jr.'s Motion to Quash Subpoena Duces Tecum [129] involves a subpoena to the Coppedge law firm. The movant raises concerns about attorney-client privilege and HIPAA. These concerns do not warrant quashing the subpoena in its entirety. Rather, the movant should produce documents not affected by these issues and state specific objections and provide a privilege log for affected documents within 14 days of the entry of this Order. The Motion to Quash [129] is DENIED.

William Morgan Akin's Motion to Quash or Modify Subpoena [133] involves a subpoena to Lester Tate, the attorney Owen Gleaton brought in to fight the sanctions motion in Superior Court. The motion suggests that attorney-client privilege may apply to some of the requested documents and requests additional time to review them. Defendants joined the motion [148] and argued the documents sought by Plaintiff are irrelevant. Movants argue that they have had inadequate time to comply with the subpoena and seek time to complete a review so that privileged documents can be specifically identified. Therefore, the Motion to Modify Subpoena [133] is GRANTED, and movants are ORDERED to produce responsive documents and to provide an appropriate privilege log for documents as to which the privilege is asserted within 14 days of entry of this Order.

In Plaintiff's First Motion to Compel Defendants to Produce Documents [139], Plaintiff seeks to compel production of emails and attachments generated by Defendants that are responsive to FPIC's First Request for Documents No. 4. This generally covers communications among attorneys inside and outside Owen Gleaton concerning the underlying action, the motion for sanctions, the appeal, and the malpractice claim. Plaintiff attached a lengthy privilege log that Defendant had previously provided. However, it appears this log was provided in response to a request for documents made by FPIC before this suit was even filed. Defendants point out that many of the documents listed on the log have actually been produced. For those documents that have not been produced, Defendants assert attorney-client privilege, attorney work product, or that the documents are not relevant. In response to the motion, Defendants also asserted it is not timely. Under our local rules, it is timely.

Plaintiff's First Motion to Compel [139] is GRANTED, and Defendants are ORDERED to provide any withheld documents for an in camera review by the Court within 14 days of entry of this Order. Defendants shall also provide a log stating for each document: the type of document, the date of creation, the author, the recipient, and a brief explanation of the applicable privilege or objection. For the privilege claims, the Court will apply the standards enunciated in St. Simons Waterfront, LLC v. Hunter, Maclean, Exley, & Dunn, PC , 293 Ga. 419 (2013).

In Plaintiff's Motion to Compel Production of Documents Related to Defendants' Financial Condition [149], Plaintiff seeks financial information regarding Defendants for use as evidence in its claim for punitive damages. Defendants assert that Plaintiff has failed to make an evidentiary showing that a factual basis exists for the punitive damages claim. While such a showing is required under state law, federal law does not require it. WTI, Inc. v. Jarchem Indus., Inc., No. 2:10-CV-0238-RWS, 2013 WL 142318, at *3 (Jan. 11, 2013). Therefore, the Motion to Compel [149] is GRANTED. However, the request is overbroad. Defendants are required to produce the requested documents for Owen Gleaton, but not financial information of individual partners. The parties may confer in an effort to agree on production that will be mindful of the sensitive nature of the requested documents.

In Plaintiff's Motion to Reconvene Deposition [154], Plaintiff seeks a second deposition of the 30(b)(6) representative of Owen Gleaton. The motion is DENIED. Plaintiff's concerns about the unresponsiveness to Topics 17-23 are adequately addressed by the Court's granting of Plaintiff's motion to Compel [149]. However, the Court finds that Plaintiff is entitled to a response to several discrete questions propounded in the deposition and not adequately answered by the witness. Plaintiff is entitled to a response by Owen Gleaton to which Owen Gleaton will be bound at trial. Within 14 days of the entry of this Order, Owen Gleaton shall file verified answers to the following questions. If Owen Gleaton does not know, such response may be stated, and Owen Gleaton will be held to that position at trial.

(1) State the date the firm first contacted FPIC about the Motion for Sanctions, and identify the Owen Gleaton representative who made contact ...

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