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Henry v. Swift, Currie, McGhee & Hiers, McGhee & Hiers LLP

Attorney's memorandum summarizing conversations he had with opposing counsel that allegedly demonstrated that a personal animus towards the attorney's client motivated opposing counsel to seek attorney fees was not privileged work product since the memorandum was prepared at the client's request after the successful defense of the motion for attorney's fees.

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We granted two applications for interlocutory appeal to consider rulings by the superior courts of Fulton and Gwinnett counties regarding the discoverability of an attorney’s memorandum summarizing conversations he had with opposing counsel. Although the appeals arose from different cases in different procedural postures, both involve the same memorandum and parties. Therefore, in the interest of judicial economy, we have consolidated the appeals in this opinion.

The Fulton County Superior Court construed the memorandum as attorney work product and protected it from discovery. The Gwinnett County Superior Court declined to shield the memorandum. We find that the record demonstrates that the memorandum is not privileged. Therefore, we reverse the Fulton County Superior Court’s ruling and affirm that of the Gwinnett County Superior Court.

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