First Tenn. Bank Nat'l Ass'n v. Serv. Foods, Inc.
First Tenn. Bank Nat'l Ass'n v. Serv. Foods, Inc.
2020 WL 11025587 (N.D. Ga. 2020)
February 10, 2020

Pannell Jr., Charles A.,  United States District Judge

Third Party Subpoena
Privilege Log
Attorney-Client Privilege
Redaction
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Summary
The court denied Steel Law's motion to quash the subpoena and for a protective order, as well as its motion for leave to file the privilege log under seal. The court noted that any ESI should be redacted as necessary to maintain attorney-client privilege or any other applicable privilege.
FIRST TENNESSEE BANK NATIONAL ASSOCIATION, Plaintiff,
v.
SERVICE FOODS, INC., SERVICE FOODS SOUTHERN DIVISION, LLC, H-SON FINANCIAL, INC., HAROLD T. POUNDERS and KEITH KANTOR, Defendants
CIVIL ACTION NO. 1:15-CV-2940-CAP
United States District Court, N.D. Georgia, Atlanta Division
Signed February 10, 2020

Counsel

Brett Andrew Switzer, Kathleen Gilbert Furr, Kevin A. Stine, Joe Dally Whitley, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Atlanta, GA, Richard Baxter Gossett, Baker Donelson, Chattanooga, TN, for Plaintiff.
Harbert Scott Gregory, Jr., Todd Emory Hatcher, Gregory, Doyle, Calhoun & Rogers, LLC, Marietta, GA, for Defendant Keith Kantor.
Walt M. Britt, Chandler, Britt, & Jay, LLC, Buford, GA, for Defendant Larysa Horak-Losh.
Pannell Jr., Charles A., United States District Judge

ORDER

*1 This matter is before the court on the Steel Law Firm, P.C.'s (“Steel Law”) non-party motion to quash and motion for protective order [Doc. No. 443]. The plaintiff, First Tennessee Bank National Association (“First Tennessee”) has served Steel Law with a subpoena seeking “[a]ll billing records, redacted as necessary to maintain attorney-client privilege or any other applicable privilege, and payments, including but not limited to, checks, money orders, and wire receipts to this law firm by or on behalf of Harold T. Pounders” [Doc. No. 443-1]. Steel Law has moved to quash this subpoena because, although it does not represent Pounders in the instant action, it does represent him in other actions and Pounders has directed Steel Law to object to the subpoena [Doc. No. 443 at 2]. Further, Steel Law believes that it “may be in possession of document(s) which are arguably responsive to the subpoena, but for which production would be covered by valid privileges” [Id. at 5].
 
On March 6, 2017, this court entered a judgment on Counts I through V of the plaintiff's amended complaint in the amount of $5,500,000[1] plus costs against Pounders [Doc. No. 328]. As of January 2020, the judgment has not been paid in full and the plaintiff and Pounders are currently engaged in post-judgment discovery. See Doc. No. 441. It appears to this court that the plaintiff's subpoena to Steel Law is part of this post-judgment discovery.
 
Federal Rule of Civil Procedure 69(a) provides that the procedure for execution of a judgment for the payment of money shall be in accordance with the practice of the state in which the district court considering the enforcement action is located. The procedure for execution of the judgment in this court, therefore, is governed by the practice of the State of Georgia. Georgia law recognizes the ability of a judgment creditor to engage in post-judgment discovery. Specifically, O.C.G.A. § 9-11-69 provides:
In aid of the judgment or execution, the judgment creditor ... may do any or all of the following:
(1) Examine any person, including the judgment debtor by taking depositions or propounding interrogatories;
(2) Compel the production of documents or things; and
(3) Upon a showing of reasonable necessity, obtain permission from a court of competent jurisdiction to enter upon that part of real property belonging to or lawfully occupied by the debtor which is not used as a residence and which property is not bona fide in the lawful possession of another.
The purpose of post-judgment discovery under O.C.G.A. § 9-11-69 is to enable litigants to recover on a liability already established by judgment. Aldrdge v. Mercantile Nat. Bank, 209 S.E.2d 234, 235 (Ga. Ct. App. 1974). “Any question that seeks information which would lead to any property or holdings of the defendant in fi. fa. which are subject to levy to satisfy the judgment against him is pertinent and allowable.” Bradley v. Coach & Six Rests., 145 S.E.2d 55, 56-57 (Ga. Ct. App. 1965). In addition, the Georgia Court of Appeals has held that non-parties are within the scope of post-judgment discovery. Esaskv v. Forrest, 499 S.E.2d 413, 415 (Ga. Ct. App. 1998).
 
*2 Upon review of the subpoena issued to Steel Law, the court finds that the subpoena is within the scope of post-judgment discovery. The plaintiff is entitled to engage in discovery to determine the assets of Pounders to help satisfy the judgment. The subpoena to Steel Law —the firm representing Pounders in other litigation —is reasonably calculated to do so. While Steel Law objects that the subpoena seeks privileged information, such material can be redacted—as already indicated in the subpoena itself. Inquiring as to source of the funds used to pay Steel Law is therefore relevant to properly uncovering Pounder's assets. Accordingly, Steel Law's motion to quash the subpoena and for a protective order is DENIED [Doc. No. 443]. Because there is no need for the court to review the privilege log, Steel Law's motion for leave to file the privilege log under seal is likewise DENIED [Doc. No. 444].
 
SO ORDERED this 10th day of February, 2020.

Footnotes
Accruing interest at the rate of 7.75% per annum.