SOUTH EAST ENTERPRISE GROUP LLC et al v. GILL et al

Filing 77

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
COLUMBUS DIVISION
SOUTH EAST ENTERPRISE GROUP
LLC, et al.,

*
*

Plaintiffs,
*
vs.

CASE NO. 4:15-cv-25 (CDL)
*

JOHN GILL, et al.,
*
Defendants.
*
O R D E R
Plaintiffs served subpoenas duces tecum on Defendant Loren
Gill’s

former

Defendants

attorney,

moved

to

Tommy

quash

James

the

subpoenas

information sought is protected by
As

discussed

below,

the

Court

and

his

law

claiming

firm.

that

the

attorney-client privilege.

finds

that

by

disavowing

an

admission included in pleadings in a prior action that were
prepared by James based upon information arguably supplied to
him

by

Gill,

privilege.

Gill

has

partially

Accordingly,

to

the

waived
extent

the

attorney

described

client
in

the

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

Gill

for

the

purposes

of

being

used

either

verbatim

or

in

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
case.”

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
Cornerstone Trust.”

Id.

And Plaintiffs seek testimony on these

matters from Mr. James and his firm’s records custodian.

Id. at

5, 12.1
Defendants argue that the information sought is protected
by the attorney-client privilege.

Plaintiffs contend that Loren

Gill

disavowing

waived

the

privilege

by

an

admission

pleadings that his prior attorneys filed on his behalf.

in
In

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,
2011).

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

1

Plaintiffs originally also sought communications regarding
ownership of Elm Leasing, LLC, but they abandoned that request.

2

the

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.
The

attorney-client

Id. at 116:1-117:24.

privilege

“protects

the

disclosures

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).
the

Court

recently

sacrosanct”

and

may

observed,
be

however,

waived.

the

Barker

privilege
v.

“is

Columbus

As
not

Reg’l

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
examination

of

F.3d at 1419.
have

the

otherwise

protected

communications.”

Cox,

17

For example, if a party asserts that he did not

requisite

criminal

intent

because

he

thought

his

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
wrong,

then

fairness

requires

3

an

examination

of

his

communications with those attorneys

regarding

the

information

they collected from Loren Gill to prepare the pleadings.

Gill

cannot be allowed to take the position that he never provided
the

information

upon

which

the

factual

statement

in

his

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
No.

65)

is

denied

as

follows.

Plaintiffs

may

obtain

all

writings that are communications from Loren Gill to anyone in
Mr.

James’s

firm

relating

to

whether

Wallace

Whitten

was

a

trustee of the Gill Family Cornerstone Trust that were made for
the purpose of being used in pleadings filed on Loren Gill’s
behalf.

Plaintiffs may also obtain any writings related to

whether Wallace Whitten was a trustee of the Cornerstone Trust.
And

Plaintiffs

may

obtain

testimony

records custodian on these matters.

2

from

Mr.

James

and

his

3

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.
3
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

4

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.

5