CLAYTON v. CONE et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
JACK CLAYTON, as the administrator of :
the Estate of TIMOTHY CLAYTON, :
:
Plaintiff, :
:
v. : Case No. 1:24-cv-139 (LAG)
:
SHERIFF LEE CONE, et al., :
:
Defendants. :
ORDER
Pending before the Court is a Brief filed on behalf Defendants Genesys Health Alliance,
LLC, Donna Moss, Drancy Sanders, and Bianca Brown (hereafter, “Genesys Defendants”) (Doc.
51) as well as Plaintiff’s Third Motion to Compel1 (Doc. 52). On August 12, 2025, Plaintiff’s
counsel contacted the Court’s Career Law Clerk via email seeking “intervention regarding two
improper instructions not to answer given during the August 11, 2025 deposition of Defendant’s
employee, Nurse Moss.” On August 25, 2025, this Court entered an Order directing the Parties to
submit limited briefing on the deposition questions propounded to Nurse Moss that relate (1) to
any indemnification agreement between Nurse Moss and the Genesys Defendants or (2) to any
conflict-of-interest waiver signed by Nurse Moss. (Doc. 49). The matter has been fully briefed by
the Parties and is now ripe for the Court’s consideration. (Docs. 51, 52, 53).
1 Plaintiff filed a motion to compel seeking an order from this Court directing Nurse Moss “to answer deposition
questions that Genesys’s counsel improperly blocked, and to require production (or in camera submission) of any
indemnity, fee-payment, joint-defense/common-interest, and conflict-waiver documents between Genesys and the
individually-named nurses.” (Doc. 52, at 1).
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I. Background
Nurse Donna Moss is named as a Defendant in this case. During her deposition, Plaintiff’s
counsel, Mr. Krause, asked the following questions:
Q. What happens in the event that liability, meaning that responsibility is determined,
have you worked out any agreement with Genesys where they will make sure that
you, personally, aren’t impacted? Or . . . do you have any—any agreement with
regards with Genesys to protect you?
Q. Okay. So, the—so what I’m trying to understand is, if there’s any financial
obligation of Genesys to protect you, personally, in the event of liability?
Q. Okay. And did you sign any conflict waiver about the potential conflict of someone
representing you, Genesys, and Brown, and Sanders?
Q. Okay. So what I’m asking about whether or not there’s any—if a conflict waiver
has been signed or not?
(Doc. 51-1).
Mr. Peek, Counsel for the Genesys Defendants objected to the line of questioning and
directed Nurse Moss to not answer on the grounds that the line of questioning, as well as the
production of any indemnification agreement or conflict of interest waiver documents (1) is not
relevant, (2) is protected by the work product doctrine, and/or (3) is protected by the attorney-
client privilege. Plaintiff requests that this Court order Defendants to either produce any written
indemnification agreement or conflict of interest waiver between Nurse Moss and the Genesys
Defendants or, to alternatively, allow Plaintiff to reopen the deposition of Nurse Moss for the
purpose of obtaining an answer to the questions stated above. (Doc. 52). Plaintiff also seeks
reasonable expenses for holding a fourth deposition of Nurse Moss, should same be allowed by
this Court. Id.
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II. Discussion
1. Disclosure under Rule 26(a)(1)(A)(iv)
Plaintiff likens any indemnification agreement between Nurse Moss and the Genesys
Defendants to an insurance agreement between an insured and its insurer. Federal Rule of Civil
Procedure 26(a)(1)(A)(iv) requires the automatic disclosure of “any insurance agreement under
which an insurance business may be liable to satisfy all or part of a possible judgment in the action
or to indemnify or reimburse for payments made to satisfy the judgment.” The Court is not
persuaded by Plaintiff’s argument that “[a]n employer’s agreement to indemnify an employee for
a judgment functions as the practical equivalent of an insurance agreement for the purpose of this
rule[.]”2 (Doc. 52, at 11-12). Contrary to Plaintiff’s argument, the 1970 Advisory Committee Notes
expressly state the “provision applies only to persons ‘carrying on an insurance business’ and thus
covers insurance companies and not the ordinary business concern that enters into a contract of
indemnification. Thus, the provision makes no change in existing law on discovery of indemnity
agreements other than insurance agreements by persons carrying on an insurance business.”
Fed. R. Civ. P. 26 Advisory Committee Notes 1970 Subdivision (b)(2) – Insurance Policies.
Here, Plaintiff’s line of questioning does not suggest that an insurance business is a party to the
agreement; rather, it concerns agreements between Nurse Moss and Geneys Healthcare. Therefore,
Rule 26(a)(1)(A)(iv) is not applicable, and automatic disclosure is not required.
2 Plaintiff made an equally unavailing argument regarding common interest agreements and fee/retainer agreements.
While Plaintiff is correct that Courts in the Eleventh Circuit have routinely held that fee agreements are not privileged
communications, this Court finds indemnification agreements and a waiver of conflict-of-interest agreements
distinguishable. For example, the common interest doctrine only applies to disclosures made to a third party. See Price
v. Safelite Sols., LLC, No. 2:21-cv-00139-RWS-JCF, 2022 WL 22983031, at *1 (N.D. Ga. Dec. 5, 2022), adopted in
relevant part by 2023 WL 12170966 (N.D. Ga. Mar. 7, 2023).
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2. Relevance and Proportionality
Plaintiff contends that defense counsel’s objections during Nurse Moss’s deposition were
improper because questions regarding the existence of an indemnification agreement or a conflict-
of-interest waiver are relevant to Plaintiff’s claims. Plaintiff argues that such questions bear on
whether Nurse Moss has any potential bias that might incline her to testify favorably for her
employer.
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1) (emphasis added). Additionally,
[w]hen a party withholds information otherwise discoverable by claiming that the
information is privileged or subject to protection as trial-preparation material, the
party must: (i) expressly make the claim; and (ii) describe the nature of the
documents, communications, or tangible things not produced or disclosed – and do
so in a manner that, without revealing information itself privileged or protected,
will enable other parties to assess the claim.
Fed. R. Civ. P. 26(b)(5)(A).
Moreover, a 1993 Advisory Committee Note states that a
party must notify other parties if it is withholding materials otherwise subject to
disclosure under the rule or pursuant to a discovery request because it is asserting
a claim of privilege or work product-protection. To withhold materials without such
notice is contrary to the rules, subjects the party to sanctions under Rule 37(b)(2),
and may be viewed as a waiver of the privilege or protection. The party must also
provide sufficient information to enable other parties to evaluate the applicability
of the claimed privilege or protection.
Finally, Federal Rule of Civil Procedure 26(f)(3)(D) requires parties – from the outset of
litigation – to develop a discovery plan that states the “parties’ views and proposal on: any issues
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about claims of privilege or of protection as trial-preparation materials, including – if the parties
agree on a procedure to assert these claims after production – whether to ask the court to include
their agreement in an order under Federal Rule of Evidence 502[.]”
Relevance under Rule 26(b)(1) is broadly construed. See, e.g., Washington v. Brown &
Williamson Tobacco Corp., 106 F.R.D. 592, 593 (M.D. Ga. 1985) (citing Oppenheimer Fund, Inc.
v. Sanders, 437 U.S. 340, 351 (1978)). Plaintiff argues that the existence of any such agreements
is directly relevant to the witness’s potential for bias. Plaintiff also believes the information is
relevant to the question of “allocation of damages” and apportionment between the defendants if
they are found liable. (Doc. 52, at 10).
“[P]roof of bias will typically be relevant.” ML Healthcare Servs., LLC v. Publix Super
Markets, Inc., 881 F.3d 1293, 1302 (11th Cir. 2018) (citing United States v. Abel, 469 U.S. 45, 52,
(1984) (“Proof of bias is almost always relevant because the jury, as finder of fact and weigher of
credibility, has historically been entitled to assess all evidence which might bear on the accuracy
and truth of a witness’ testimony.”)). On the other hand, “[p]roportionality requires counsel and
the court to consider whether relevant information is discoverable in view of the needs of the case.”
Quiterio v. QBE Specialty Ins. Co., No. 8:16-cv-1895-T-35JSS, 2019 WL 13064730, at *1 (M.D.
Fla. Nov. 8, 2019) (citation omitted).
The Court agrees with Plaintiff that the existence of an indemnification agreement may be
relevant because it could show bias or be used to impeach a witness. However, the test under Rule
26 requires that the information be both relevant and proportional to the needs of the case. Courts
consider the following factors when evaluating whether requested discovery is
proportional to the needs of the case: (1) “the importance of the issues at stake in
the action,” (2) “the amount in controversy,” (3) “the parties’ relative access to
relevant information,” (4) “the parties’ resources,” (5) “the importance of the
discovery in resolving the issues,” and (6) “whether the burden or expense of the
proposed discovery outweighs its likely benefit.”
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Centennial Bank v. Servisfirst Bank Inc., No. 8:16-cv-88-T-36JSS, 2016 WL 3574587, at *3 (M.D.
Fla. July 1, 2016) (quoting Fed. R. Civ. P. 26(b)(1).
With respect to the first factor, the Court struggles to ascertain how the terms of an
indemnification agreement or conflict-of-interest waiver are important to the issues at stake in the
action. First, this is a wrongful death case. The parties’ dispute centers on whether Mr. Timothy
Clayton died as a result of “being deprived of insulin for more than seventy (70) hours while
confined as a pretrial detainee at the Ben Hill County Jail.” (Doc. 52, at 2). Second, this Court can
find no binding or persuasive legal authority that says potentially conflicting testimony between
Nurse Brown, Nurse Sanders, and Nurse Moss is sufficient to destroy a valid privilege. Third,
Nurse Moss is currently employed by Genesys Healthcare. Plaintiff argues that the line of
questioning at the deposition of Nurse Moss “concerns the existence of a contractual or financial
relationship between a party and its employee-defendant – issues that are routinely discoverable
to explore bias and control.” (Doc. 52, at 6). Any potential bias because of an indemnification
agreement between the parties is just as likely to be presumed because she is their employee.
Appropriately balancing the importance of resolving the ultimate issue in this wrongful death case
against Plaintiff’s lack of physical access to any indemnification agreement or conflict-of-interest
waiver between Nurse Moss and the Genesys Defendants, Plaintiff’s line of questioning is not
proportional to the needs of the case. Nevertheless, even if this Court were to find that the
deposition questions asked of Nurse Moss were relevant and proportional to the needs of the claims
or defenses in the case, Plaintiff has not shown a substantial need for the documents to prepare his
case.
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3. Work Product and Attorney/Client Privilege
In addition to opposing deposition questions about any indemnification agreement or
conflict-of-interest agreement, the Genesys Defendants also oppose the production of such
documents. Since they oppose production, it is their burden to establish that the work product
doctrine applies. Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013) (citations
omitted). Here, the Genesys Defendants claim “[a]ny such indemnity or defense agreement would
have been discussed and structured by counsel in anticipation of litigation. It therefore reflects
privileged communications concerning litigation strategy, liability assessment, and defense
responsibilities.” (Doc. 51, at 4).
“The work product doctrine protects from production documents and other ‘tangible things’
that were ‘prepared in anticipation of litigation or for trial by or for another party or its
representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or
agent).’” Centennial Bank, 2016 WL 3574587, at *4. (quoting Fed. R. Civ. P. 26(b)(3)(A)).
“[W]ork product may be discovered if it is ‘otherwise discoverable under Rule 26(b)(1)’ and the
party seeking production ‘shows that it has substantial need for the materials to prepare its case
and cannot, without undue hardship, obtain their substantial equivalent by other means.’”
Centennial Bank v. ServisFirst Bank Inc., No. 8:16-cv-88-T-36JSS, 2019 WL 10375478, at *2
(M.D. Fla. Mar. 26, 2019) (emphasis added). “Some cases have found substantial need by
emphasizing the importance of the documents themselves. One common justification for discovery
is the claim which relates to the opposite party’s knowledge that can only be shown by the
documents themselves.” In re Int’l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1241 (5th Cir.
1982). The burden to establish substantial need for the materials to prepare its case rests with the
Plaintiff, and Plaintiff has failed to meet that burden. Plaintiff speculates that production of the
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agreements may show bias and could be relevant to the issue of damages, but neither of those
arguments establish substantial need. “Ultimately, the party seeking to overcome the privilege has
the burden of showing a substantial need and ‘mere conclusory assertions will not suffice.’”
Centennial Bank, 2019 WL 10375478, at *2 (quoting Bridgewater v. Carnival Corp., 286 F.R.D.
636, 643 (S.D. Fla. 2011)).
Finally, the Parties do not dispute that attorney/client privilege and work product privilege
do not extend to facts. See Upjohn v. United States, 449 U.S. 383, 395-96 (1981). Indeed, the work
product privilege does not protect factual information from disclosure. Rather, it protects a party
who possesses a document from producing it, “even if the document contains only factual
information.” Stern v. O’Quinn, 253 F.R.D. 663, 687 (S.D. Fla. 2008). “However, because the work
product privilege does not protect the facts in that document (the privilege protects documents, not
facts), the party seeking those facts may obtain them through other means of discovery, such as
through depositions and interrogatories.” Id. (quoting ECDC Env’t, L.C. v. New York Marine &
Gen. Ins. Co., No. 96CIV.6033(BSJ)(HBP); 1998 WL 614478, at *16, (S.D.N.Y. June 4, 1998)
(other citations omitted)). Contrarily, it is appropriate to “propound interrogatories and take
depositions to obtain the sought-after factual information.” Centennial Bank, 2019 WL 10375478,
at *3 (emphasis added) (quoting Spirit Master Funding LLC v. Pike Nurseries Acquisition, LLC,
287 F.R.D. 680, 687 (N.D. Ga. 2012)).
Plaintiff argues that his line of questioning for Nurse Moss did “not seek the substance of
privileged attorney-client communications, but rather the factual existence of a waiver[.]” (Doc.
52, at 13). Instead, the line of questioning “sought to establish the foundational fact of whether the
process of obtaining informed consent occurred.” Id. at 14. Plaintiff further argues, “[t]he existence
of a conflict waiver is a fact, not a communication. If a written waiver exists, the document itself
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is not privileged.” Id. Contrarily, the Genesys Defendants argue that “the content or existence of
any such arrangement would constitute opinion work product, reflecting counsel’s strategic
evaluations, afforded nearly absolute protection. Thus, any existence or non-existence of an
indemnity agreement is intertwined with counsel’s legal advice. Work-product doctrine
independently applies, and relevance and proportionality weigh against discovery.” (Doc. 51, at
5).
The Court agrees and disagrees with the arguments made by both Parties. The Court agrees
with Plaintiff that the existence of a document is a fact, not a communication. Either the document
exists or it does not, and a party is entitled to know that information – whether same be propounded
through interrogatories or via questioning at a deposition. However, the Court also agrees with the
Genesys Defendants that the compound wording of Plaintiff’s line of questioning during Nurse
Moss’s deposition warranted an appropriate objection to the questions at issue because they
extended beyond the mere existence of any such agreements. Plaintiff’s question began with,
“What happens in the event that liability . . . is determined[?]” (Doc. 51-1). The line of questioning
continued to ask, “And did you sign any conflict waiver about the potential conflict of someone
representing you, Genesys, and Brown, and Sanders?” Id. Nevertheless, the Court finds that the
existence – or not – of any indemnification agreements or waivers of conflict-of-interest
agreements are not protected by the work product or attorney/client privilege. Therefore, Plaintiff
is allowed to know whether those documents exist and whether they are being withheld from
production.
To the extent Nurse Moss and the other Genesys Defendants seek to withhold production
of any otherwise relevant documents based on a claim of privilege or attorney work product,
Defendants must comply with all provisions of Rule 26, as well as the Advisory Committee Notes.
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Thus, the Parties must either produce a discovery plan in compliance with Federal Rule of Civil
Procedure 26(f)(3)(D) or Nurse Moss must notify Plaintiff via a privilege log if she is withholding
materials otherwise subject to disclosure because they are asserting a claim of privilege or work
product-protection. If no such documents exist, Nurse Moss is directed to notify Plaintiff’s counsel
within five (5) business days of this Order that she is not withholding the production of any
indemnification agreement or conflict of interest waiver under a claim of privilege or work
product. If the Parties follow this Court’s instructions and do what should have been done at the
outset of this litigation, there should be no need to reopen the deposition of Nurse Moss.
III. Conclusion
Accordingly, Plaintiff’s Third Motion to Compel (Doc. 52) is DENIED without prejudice.3
Defendant Nurse Moss is ORDERED to provide the information as outlined in this Order no later
than FIVE (5) BUSINESS DAYS from the date of this Court’s Order.
SO ORDERED, this 18th day of November, 2025.
s/ ALFREDA L. SHEPPARD
UNITED STATES MAGISTRATE JUDGE
3 Plaintiff’s Third Motion to Compel requests as relief reasonable expenses in the amount of $819.60 for two
depositions wherein it is alleged that Nurse Moss failed to appear on May 13, 2025 and July 21, 2025. (Doc. 52, at
15-16). This request is not appropriately before this Court, as it exceeds the instruction given by the Court regarding
the issue at hand. (Doc. 49). If Plaintiff wishes to bring this matter before the Court, he should file a separate motion
setting forth the appropriate legal authorities supportive of his claim. This Court makes no ruling as to this matter, at
this time.
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