336 Ga. App. 298
Ga. Ct. App.2016Background
- In 2006 Chua was criminally prosecuted (including felony murder) and separately sued civilly by the Brunswick Judicial Circuit District Attorney; convictions were later affirmed and Chua has a pending habeas petition.
- Chua’s counsel inspected the DA’s criminal and civil case files in July 2013 and on December 23, 2013 requested a copy of a multi-page unsigned memorandum concerning prospective jurors and their ties to the county sheriff.
- The DA’s office responded with an initial notice about records being offsite and an estimated retrieval cost; counsel agreed to pay on December 30, 2013.
- On January 3, 2014 an ADA left a voicemail saying the memo is attorney work product and would not be produced; a confirming letter followed January 10. Chua sued under Georgia’s Open Records Act (ORA).
- The superior court conducted an in camera review, ruled the January 3 voicemail satisfied OCGA § 50-18-71(d) and held the memo was protected attorney work product; it dismissed Chua’s ORA claim with prejudice.
- The Court of Appeals vacated and remanded, holding the DA’s response failed to cite the specific statutory subsection as required by ORA and that an evidentiary hearing is needed to resolve whether the memo is protected work product.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the DA’s response complied with OCGA § 50-18-71(d) (timely notice and citation of statutory authority for withholding) | Chua: DA’s voicemail/letter failed to cite the specific code section/subsection/paragraph and thus violated ORA | DA: Timely voicemail and letter informed counsel the document was work product; in camera inspection sufficed | Court: Response was timely but violated the statute’s requirement to cite the specific code subsection; violation required vacatur but did not automatically entitle production |
| Whether a technical ORA violation entitles Chua to immediate production of the memo | Chua: Technical noncompliance should mandate production | DA: Even if procedural error occurred, substantive privileges control; in camera review and privilege defense suffice | Court: Technical violation does not automatically require production; entitlement depends on outcome of evidentiary hearing on privilege |
| Whether the memo is exempt from disclosure as attorney work product (absolute vs qualified) | Chua: Memo is not clearly privileged; record lacks provenance to support claim of work product | DA: Memo is trial preparation work product (juror notes) and thus protected | Court: Record insufficient to decide; remand for evidentiary hearing to establish authorship, purpose, and whether memo contains opinion (absolute) work product or only general (qualified) work product; consider redaction and OCGA § 9-11-26(b)(3) balancing if qualified |
| Whether the trial court erred by declining an evidentiary hearing and relying on in camera review | Chua: Hearing required because in camera review could not reveal provenance and authorship | DA: In camera inspection and the memo’s content made its privileged nature obvious | Court: Trial court erred; an evidentiary hearing is necessary given the memo’s ambiguous provenance and sparse content |
Key Cases Cited
- Fulton DeKalb Hosp. Auth. v. Miller & Billips, 293 Ga. App. 601 (affirming trial-court discretion under ORA)
- Mathis v. BellSouth Telecommunications, 301 Ga. App. 881 (standard for abuse of discretion review)
- Chua v. State, 289 Ga. 220 (background on Chua’s criminal conviction)
- Jaraysi v. City of Marietta, 294 Ga. App. 6 (strict construction of ORA notice requirements)
- Deal v. Coleman, 294 Ga. 170 (statutory interpretation and trial-court allocation of issues on remand)
- Wallace v. Greene County, 274 Ga. App. 776 (remedies available under ORA; damages limitations)
- McKesson HBOC, Inc. v. Adler, 254 Ga. App. 500 (work-product doctrine explanation)
- McKinnon v. Smock, 264 Ga. 375 (absolute protection for opinion work product)
- St. Simons Waterfront v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419 (in camera review and redaction procedure for privileged material)
- Gen. Motors Corp. v. Conkle, 226 Ga. App. 34 (burden on claimant to prove document was prepared by attorney in anticipation of litigation)