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Georgia Case Law Update – Ewing v. Ewing

In Georgia, "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." O.C.G.A. § 9-11-26(b)(1). For family law cases, this code section allows almost anything to be discoverable - financial discovery relates to child support, equitable distribution and alimony; discovery about the behavior of the parties relates to child custody and equitable distribution. Relevant is interpreted very broadly so a party seeking a protective order has to show that the information sought has absolutely nothing to do with any issue in the case. Further, "[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Id. Thus, a party seeking a protective order has a difficult burden to overcome. A recent appellant to the Court of Appeals of Georgia recently learned this lesson. Ewing v. Ewing, A15A1422, Court of Appeals of Georgia (2015).

In that case, the wife inadvertently discovered correspondence between the husband and his mistress while looking for something on his iPhone. During the divorce discovery process, the wife subpoenaed the husband's phone records from his wireless carrier, and subpoenaed the mistress for a deposition. She additionally served the husband with a notice of intent to take his deposition along with a request for production of documents. The husband filed a motion for protective order to prohibit the wife from obtaining the phone records and deposing the mistress, alleging that the information was obtained from his phone without his knowledge or permission. After the trial court denied the husband's motion, he appealed.

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The Court of Appeals affirmed the trial court's ruling, citing the statutes above regarding the scope of discovery in Georgia. The Court further pointed out that protective orders are permitted "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense," but "should not be awarded when the effect is to frustrate and prevent legitimate discovery." O.C.G.A. § 9-11-26(c); Galbreath v. Braley, 318 Ga. App. 111, 113 (2012). Since the husband's extramarital activity can play into the issue of equitable distribution, discovery regarding this alleged conduct is relevant and the wife should be permitted to obtain this discovery in any format (depositions, document production, interrogatories, etc.).


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