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Keywords

lawsuitattorneysubpoenaappealmotionburden of prooffiduciaryfiduciary dutybreach of fiduciary duty

settlementattorneyappealmotion

Related Cases

Swift, Currie, McGhee & Hiers v. Henry, 276 Ga. 571, 581 S.E.2d 37, 03 FCDR 1560

Facts

J. Hue Henry, an attorney, represented a client in a case against Quorum Health Resources. After a motion for attorney fees was denied, Henry requested a memorandum from his attorney, James T. McDonald, detailing discussions with opposing counsel. McDonald refused to provide the memorandum, prompting Henry to issue a subpoena duces tecum. McDonald moved to quash the subpoena, leading to a lawsuit in Fulton County where Henry alleged breach of fiduciary duty and sought the memorandum. The Fulton County court granted McDonald's motion for a protective order, while the Gwinnett County court denied the motion to quash.

Henry retained Swift, Currie, McGhee & Hiers (“Swift, Currie”) to defend the motion. Swift, Currie appointed one of its partners, James T. McDonald, Jr., to handle Henry's case. McDonald and Copeland discussed the attorney fees motion in an effort to arrive at a settlement. McDonald conveyed the gist of those discussions to Henry who came to believe that Copeland's statements indicated Copeland brought the motion because he harbored personal animosity toward Henry.

Issue

Who owns the documents in a legal file, the attorney or the client?

The question is this: Does a document created by an attorney in the course of representing a client belong to the attorney or the client?

Rule

A document created by an attorney during the course of representation is presumed to belong to the client, unless the attorney can show good cause to refuse access to the document.

A majority of courts have ruled that a document created by an attorney belongs to the client who retained him.

Analysis

The court applied the majority view, which holds that clients are entitled to discover documents created by their attorneys during representation. The court emphasized that the burden of proof lies with the attorney to demonstrate good cause for withholding the document. In this case, since McDonald did not show good cause, Henry was entitled to access the memorandum prepared by McDonald.

Adopting the majority view, we hold, therefore, that Henry is presumptively entitled to discover the memorandum which McDonald prepared on March 8.

Conclusion

The Supreme Court affirmed the Court of Appeals' decision and remanded the case, allowing Henry the opportunity to inspect and copy the memorandum unless McDonald could show good cause to refuse access.

The judgment of the Court of Appeals is affirmed, albeit on different grounds, and the case is remanded for further proceedings not inconsistent with this opinion.

Who won?

Henry prevailed in the case because the court ruled that he was entitled to discover the memorandum unless the attorney could demonstrate good cause to withhold it.

Henry is presumptively entitled to discover the memorandum which McDonald prepared on March 8.

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