After six years of appellate wrangling, a civil racketeering lawsuit against three attorneys over a secret sex tape of Waffle House chairman Joe Rogers Jr. is finally cleared to begin pretrial discovery over whether their actions on behalf of Rogers' former housekeeper constituted attempted extortion.

The Supreme Court of Georgia resolved the last of a lengthy string of pretrial appeals without comment, clearing the way for Rogers and his counsel to begin securing evidence to bolster claims that lawyers for his former housekeeper advised her in making a surreptitious recording of a sexual encounter with the executive.

In 2014, Rogers sued attorney David Cohen, the founder and principal partner of the Complex Law Group in Atlanta; John Butters, a former Cobb County assistant district attorney now in private practice; and Hylton Dupree, a partner in the Marietta firm Dupree & Kimbrough, after the trio of lawyers accused him of sexually harassing their client, Mye Brindle.

The high court on Dec. 23 let stand a 2019 ruling in the case by the Georgia Court of Appeals affirming Rogers' right to pursue racketeering, attempted extortion and invasion of privacy claims.

William Hill, Seyfarth Shaw, Atlanta. (Photo: John Disney/ALM)

"I've got to give it to the plaintiffs," said Seyfarth Shaw partner William Hill, a former Fulton County Superior Court judge who filed the racketeering complaint for Rogers in 2014. "They did a very good job of tying the case up as long as possible in prediscovery, pretrial motions."

"It's highly unusual to have six or seven years of appellate litigation in any case either before or after discovery," said Marietta attorney Robert Ingram, who represented Rogers in a separate invasion of privacy suit against Brindle. That case, which included a harassment counterclaim by Brindle, settled confidentially as the civil trial opened last year.

Last year, the Court of Appeals greenlighted Rogers' claims that Brindle conspired with her attorneys to secretly record a sexual encounter of the two in 2012. The suit includes claims that Brindle worked in concert with her lawyers to produce the video and that it was key to an alleged extortion scheme to secure millions of dollars from Rogers in return for Brindle's silence.

The suit claims that a demand letter from Cohen revealing the tape's existence and intimating that any publicity associated with potential litigation could be ruinous to Rogers was an attempt to extort money from him. Brindle's lawyers eventually suggested in preliminary settlement talks that Rogers pay the former housekeeper $12 million to quietly settle, according to court papers.

Brindle made the recording after consulting with Cohen and Butters regarding a potential sexual harassment claim against Rogers, according to court papers and court testimony.

Rogers' suit also claims the secret sex tape violated the state's eavesdropping law, which makes it illegal for anyone to record "[a]ny person, through the use of any device without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view."

Cohen, Butters and Brindle were acquitted of violating the law by a Fulton County jury in 2018 after they were indicted on charges based on the secret sex tape. But as the jury deliberated, Fulton County District Attorney Paul Howard unsuccessfully attempted to stop deliberations, claiming the trial judge erroneously instructed the jury on the eavesdropping law.

John Floyd, a partner at Atlanta's Bondurant, Mixson & Elmore who represents Cohen and Butters, declined to comment. Dupree's attorney, Tom Cauthorn of Marietta law firm Cauthorn Nohr & Owen, couldn't be reached for comment.

Hill said the case is significant because the defense put forth by Cohen, Butters and Dupree implicitly rests on the assumption that, "Our bar license gives us leeway to violate the law."

Ingram agreed with that assessment. "When does a lawyer cross the line from being an advocate for their client to being a willing participant in tortious conduct?" he said. "Can a lawyer get a pass because they have a bar card when they are involved with their client in committing tortious conduct?"

Hill said that, as soon as the case is formally sent back to Cobb County, Senior Superior Court Judge Martha Christian "will put everybody to work."

Christian was appointed to hear the case after Cohen moved to recuse the original presiding judge, Cobb Superior Court Judge Robert Leonard, after Leonard placed the sex tape under seal and disqualified Butters and Cohen from continuing to represent Brindle.

Leonard subsequently stepped down. The remainder of the Cobb Superior Court bench then recused from hearing the case, paving the way for Christian's appointment.