SOUTH EAST ENTERPRISE GROUP LLC et al v. GILL et al
ORDER denying 65 Motion to Quash. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/28/2015. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
SOUTH EAST ENTERPRISE GROUP
LLC, et al.,
CASE NO. 4:15-cv-25 (CDL)
JOHN GILL, et al.,
O R D E R
Plaintiffs served subpoenas duces tecum on Defendant Loren
information sought is protected by
admission included in pleadings in a prior action that were
prepared by James based upon information arguably supplied to
remainder of this Order, Defendant’s Motion to Quash (ECF No.
65) is denied.
Plaintiffs seek all writings that are communications from
Loren Gill to anyone in Mr. James’s firm relating to “whether
Wallace Whitten was or was not a trustee of the Gill Family
Cornerstone Trust  which communications were made by Loren
substances as an allegation in any pleading filed on behalf of
Loren Gill or Elm Leasing, LLC by [Mr. James’s] law firm in any
Defs.’ Mot. to Quash Subpoena Ex. A, ECF No. 65-1 at 6.
Plaintiffs also seek all writings that “relate to or mention
. . . whether Wallace Whitten was a trustee of the Gill Family
And Plaintiffs seek testimony on these
matters from Mr. James and his firm’s records custodian.
Defendants argue that the information sought is protected
by the attorney-client privilege.
Plaintiffs contend that Loren
pleadings that his prior attorneys filed on his behalf.
Eastern Property Development, LLC v. Gill, Loren Gill’s Answer
and Counterclaim stated: “[Wallace] Whitten does not serve as a
trustee of the Cornerstone Trust[.]”
Eastern Prop. Dev. LLC v.
Gill, Answer & Countercl. 5 ¶ 4, ECF No. 18 in 4:11-cv-62 (M.D.
Ga. July 25, 2011); Eastern Prop. Dev. LLC v. Gill, Am. Answer &
Countercl. 6 ¶ 4, ECF No. 44 in 4:11-cv-62 (M.D. Ga. Oct. 18,
Loren Gill now contends that Wallace Whitten actually
was a trustee of the Cornerstone Trust until he died in 2015 and
that Whitten had authority to approve certain actions taken by
Plaintiffs originally also sought communications regarding
ownership of Elm Leasing, LLC, but they abandoned that request.
Loren Gill that are at issue in this lawsuit.
42:12-43:14, ECF No. 76.
L. Gill Dep.
When asked about the discrepancy at a
recent deposition, Loren Gill stated that his prior lawyers got
it wrong and that he “didn’t have a chance to proofread” the
pleadings in the prior action.
Id. at 116:1-117:24.
that a client makes to his attorney, in confidence, for the
purpose of securing legal advice or assistance.”
Cox v. Adm’r
U.S. Steel & Carnegie, 17 F.3d 1386, 1414 (11th Cir. 1994).
Healthcare Sys., Inc., No. 4:12-cv-108, 2014 WL 4287744, at *1
(M.D. Ga. Aug. 29, 2014).
A party “waives the privilege if it
injects into the case an issue that in fairness requires an
F.3d at 1419.
For example, if a party asserts that he did not
actions were legal based on a consultation with his attorney,
then he “inject[s] the issue of [his] knowledge of the law into
the case and thereby waive[s] the attorney-client privilege.”
Id.; accord Barker, 2014 WL 4287744, at *3-*4.
In a similar
vein, if Loren Gill now wishes to disavow the admission made in
his prior pleadings by arguing that his attorneys got the facts
communications with those attorneys
they collected from Loren Gill to prepare the pleadings.
cannot be allowed to take the position that he never provided
pleadings was based while also hiding behind attorney client
privilege to prevent discovery of whether his present position
is true or not.2
Based on the foregoing, Defendants’ Motion to Quash (ECF
writings that are communications from Loren Gill to anyone in
trustee of the Gill Family Cornerstone Trust that were made for
the purpose of being used in pleadings filed on Loren Gill’s
Plaintiffs may also obtain any writings related to
whether Wallace Whitten was a trustee of the Cornerstone Trust.
records custodian on these matters.
Of course, if Loren Gill does not disavow his previous admission,
then any communications with his attorneys regarding it would be
protected by attorney-client privilege, and there would be no grounds
for finding waiver.
To the extent Plaintiffs seek any opinion work product prepared by
Mr. James or his law firm, Defendants object based on the attorney
work-product privilege. Plaintiffs did not respond to this objection
and did not argue that they have a substantial need for the materials
and an inability to secure the substantial equivalent without undue
hardship, so the Court’s ruling does not require disclosure of any
“opinion work product” that include the attorneys’ mental impressions.
For example, if Mr. James evaluated the facts and law and through the
exercise of professional judgment had the impression that Whitten was
IT IS SO ORDERED, this 28th day of September, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
not a trustee and he wrote a memo to that effect, then the memo would
be considered work product and could only be disclosed upon a showing
of substantial need. If, however, Mr. James simply wrote on a piece
of paper, “Loren Gill told me Whitten not a trustee,” then that note
would not be work product and would be discoverable under the limited
circumstances presented in this case as the memorialization of an
attorney-client communication for which the privilege has been waived.
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