Legal Document: COOPER vs COOPER

On May 30, 2023 a Motion to Strike and Combined Response to Mot. Protective Orders and to Quash was filed involving a dispute between Cooper, Emily P, and Cooper, Michaeljohn H, for Modification - Child Custody/Visitation/Parenting Time* in the District Court of Gwinnett County.

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IN THE SUPERIOR COURT OF GWINNETT COUNTY

STATE OF GEORGIA

EMILY P. COOPER, )
)
Petitioner, ) CIVIL ACTION
)
v. ) FILE NO.: 23-A-04669-11
)
MICHAEL-JOHN H. COOPER, ) Related Case No.: 23-A-07289-11
) Former Related Case No.: 20-A-03338-11
Respondent. )

MOTION TO STRIKE AND COMBINED RESPONSE TO MOTION FOR PROTECTIVE ORDER AND
MOTION TO QUASH, AND MOTION FOR PROTECTIVE ORDER FOR PRODUCTION OF DOCUMENTS
FILED ON 12.07.2023

COMES NOW, EMILY P. COOPER, Petitioner in the above styled matter, by and through his

undersigned counsel, and herewith files this Motion to Strike and Combined Response to Motion for

Protective Order and Motion to Quash, and Motion for Protective Order for Production of Documents Filed

on 12.07.2023, and shows this honorable Court as follows:

Petitioner filed this action on or about May 30, 2023, and later amended same to include, inter alia,

requests for the modification of custody on October 9, 2023.

Respondent was properly served on August 7, 2023, and has since filed a response to the

aforementioned Petition and Amended Petition, respectively, on August 29, 2023 and November 8, 2023.

Petitioner lawfully served a notice to produce to Respondent on or about November 10, 2023

(“Exhibit A”), and believes that is what Respondent’s Motion for Protective Order for Production of

Documents (“Exhibit B”) takes issue with.
Emily Cooper v. Michael-John Cooper
Superior Court of Gwinnett County; CAFN: 23-A-04669-11
Motion to Strike and Combined Response to Motion for Protective Order and Motion to Quash, and Motion for Protective Order
for Production of Documents Filed on 12.07.2023
1.
4.

Petitioner lawfully served a deposition subpoena upon Respondent on or about December 5, 2023

(“Exhibit C”), and believes that is what Respondent’s Motion for a Protective Order and Motion to Quash

Subpoena for Production of Evidence takes issue with (“Exhibit D”).

Motion to Strike

Legal Summary - Procedural
5.
Pursuant to O.C.G.A. § 9-11-12(f):
Upon motion made by a party within 30 days after the service of the pleading upon him, or
upon the court's own initiative at any time, the court may order stricken from any pleading
any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
6.

Uniform Superior Court Rules, Rule 6.4(B) provides: “Prior to filing a motion seeking resolution of a

discovery dispute, counsel for the moving party shall confer with counsel for the opposing party and any

objecting person or entity in a good faith effort to resolve the matters involved. At the time of filing the

motion, counsel shall also file a statement certifying that such conference has occurred and that the effort

to resolve by agreement the issues raised failed. This rule also applies to motions to quash, motions

for protective order and cases where no discovery has been provided.”

Uniform Superior Court Rules, Rule 5.5(1) provides: “Information withheld. When a party withholds

information otherwise discoverable by claiming that the information is privileged or subject to protection as

trial preparation material, the party shall: a. Expressly make the claim; and b. 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 such claim.”

Emily Cooper v. Michael-John Cooper
Superior Court of Gwinnett County; CAFN: 23-A-04669-11
Motion to Strike and Combined Response to Motion for Protective Order and Motion to Quash, and Motion for Protective Order
for Production of Documents Filed on 12.07.2023
2.
8.

O.C.G.A. § 9-11-37(B) provides, “If the motion is denied, the court shall, after opportunity for

hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or

deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including

attorney's fees, unless the court finds that the making of the motion was substantially justified or that other

circumstances make an award of expenses unjust.”

Argument and Application

Petitioner did not receive a Uniform Superior Court Rules, Rule 6.4(B) letter, nor did the

Respondent’s counsel confer with Petitioner’s counsel regarding Exhibits “B” and “D”.

10.

Accordingly, the Respondent failed and refused to follow the procedural condition precedent to the

filing of a Motion for a Protective Order (“Exhibit B”) and/or Motion to Quash and Motion for Protective

Order (“Exhibit D”).

11.

As a direct result of the failure to follow the Rules, the Court should strike Exhibits “B” and “D” as

an “insufficient defense” to the Petitioner’s subpoena for the taking of Respondent’s deposition (“Exhibit A”)

and notice to produce documents (“Exhibit C”). The Court should Order the deposition to occur as noticed,

unless moved by agreement of counsel or other appropriate legal conflict.

12.

The Court should treat the striking of the aforementioned Exhibits as a denial of the Motions and

WHEREFORE, Petitioner prays that the Motions attached as Exhibits “B” and “D” be struck, with

the requirement of Respondent to pay fees for the instant Response and prosecution hereof under

O.C.G.A. §9-11-37(B).

COMBINED RESPONSE TO MOTION FOR PROTECTIVE ORDER AND MOTION TO QUASH, AND
MOTION FOR PROTECTIVE ORDER FOR PRODUCTION OF DOCUMENTS FILED ON 12.07.2023

Legal Summary – Procedural

13.

O.C.G.A. §9-11-10(b) (emphasis supplied) provides, “All averments of claim or defense shall be

made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a

statement of a single set of circumstances; and a paragraph may be referred to by number in all

succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense

other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear

presentation of the matters set forth.”

Legal Summary – Substantive

14.

In accordance with O.C.G.A. § 19-9-3(a)(2), the Court has been vested with the authority and broad

discretion to determine the best interests of the Minor Children. See, O.C.G.A. § 19-9-3 (a)(2) (“The duty of

the judge in all [custody modification] cases shall be to exercise discretion to look to and determine solely

what is for the best interest of the child and what will best promote the child’s welfare and happiness and to

make his or her award accordingly.”).

best interests of the Minor Children. See, O.C.G.A. § 19-9-3(a)(3) (Inter alia, courts consider: “(C) The

capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day

needs, and other necessary basic care, with consideration made for the potential payment of child support

by the other parent; [] (I) The mental and physical health of each parent;”). See, Simmons v. Wilson, 806

S.E.2d 267, at 272 (Ga. App. 2017).

16.
The most showing any litigant has been made to provide, once the abovementioned applicability to

the instant proceeding has been established, is merely adequate assurances, and that is only in the context

of a given medical provider seeking immunity from improper disclosure. See generally 45 CFR

164.512(e)(1)(i)-(iii) (2019)(stating that providers must receive adequate assurances that “[t]he party seeking

the protected health information has requested a qualified protective order from [the Court[;] alternatively,

may release the protected health information “in response to an order of a court provided that the entity

discloses only the protected health information expressly authorized by such order[.]”) See further generally,

45 CFR 164.512(c)(1)(v)(A)-(B) (2019)(regarding adequate assurances stating a prohibition from using or

disclosing the protected health information for any purpose other than the litigation or proceedings mentioned

above, and a requirement to return to the Providers or destroy the protected health information (including all

copies made) at the end of the litigation or proceedings mentioned above). See also genearlly, Austin v.

Moreland, 653 S.E.2d 347 (Ga. App. 2007) (“provided that protected health information is not disclosed by a

covered entity except pursuant to the HIPAA privacy rule, HIPPA allows” disclosures authorized by Georgia

law). Compare, O.C.G.A. §24-9-40 (stating there is no requirement for the release of medical information

concerning patient except upon an appropriate court occur order or subpoena).

17.

Respondent’s failure to separate the factual and legal allegations into distinct, numbered

paragraphs comprised of a “statement of a single set of circumstances” results in “Exhibit B” and “Exhibit D”

being more of a stream of consciousness filing to which it is challenging to formulate a tidy response.

O.C.G.A. §9-11-10(b).

18.
As a result of the issue identified immediately above, Petitioner must give a more blanket response

than is typically desirable under the present circumstances before moving on to an extended application.

Accordingly, Petitioner responds as follows:

(a) Petitioner denies the allegations, assertions, and/or statements of fact arising out of “Exhibit B,” to

the extent they are inconsistent with the litigation summary and/or pleadings filed to-date;

(b) Petitioner denies the allegations, assertions, and/or statements of fact arising out of “Exhibit D,” to

the extent they are inconsistent with the litigation summary and/or pleadings filed to-date;

all such assertions are inconsistent with the statute, case law, and/or other item cited as support for

the Motions;

(d) Petitioner denies that Respondent has applied Georgia law to the facts of this case in a correct

manner; namely, the main dispute here being that her client is somehow entitled to or in need of

protection in the case at bar;

(e) Petitioner denies the propriety of request relief in the “WHEREFORE” causes in “Exhibit B” and

“Exhibit D”.

that the records sought in either Exhibits “B” or “D” seek information protected by O.C.G.A. §24-5-501(a) or

that the intention of same were to discover protected communications.

20.

Petitioner shows that Respondent is a proverbial “Dr. Jekel and Mr. Hyde” when it comes to the

Minor Children and that same is a result of his extensive psychiatric treatments which have at times

bordered on or been classified as experimental. Put differently, the physical and mental health of the

Respondent is the main issue in this case and directly pertains to the wellbeing of both Minor Children, his

ability to coparent successfully, and may otherwise prove valuable to the contempt issues as well.

21.

By asserting a custody claim the Respondent has put his mental and physical health at issue within

the meaning of Georgia law and, setting aside protected communications under O.C.G.A. §24-5-501,

Petitioner has no desire to receive anything but the mental health and medical records which relate to his

ongoing treatments which are discoverable and admissible in this case. See O.C.G.A. §9-11-26 and

O.C.G.A. §19-9-3. Respondent denying the Petitioner’s request for custody modification is enough to make

and place his mental and physical health at issue.

22.

Setting aside the discoverability of the documents requested, Petitioner and the Court are without

sufficient information to assess the blanket assertion of privilege by the Respondent because the motions

were not coupled with an appropriate Uniform Superior Court Rules, Rule 5.5(1) privilege statement/ log.

As noted above, this sort of privilege log would ordinarily be covered either in the response to the

Subpoena/ Notice to Produce or a Uniform Superior Court Rules, Rule 6.4(B) letter, but no such letter was

23.

Counsel for Petitioner and Petitioner are ready, able, and willing to discuss this issue with

Respondent’s Counsel and Respondent, but were not provided with that opportunity prior to the filing of

“Exhibit B” and “Exhibit D.”

24.

Albeit not common in the given context where a patient is releasing their own records, nor

particularly necessary considering the facts of this case and the litigation history of the parties (i.e.,

extensive disclosure and knowledge of medical records for the Respondent as a result of their underlying

divorce case with the same parties, counsel, and Minor Children), Counsel for Petitioner and Petitioner

would be happy to entertain a consent order concerning the release of the Respondent’s psychiatric and

medical records so as to balance the parties’ and Minor Children’s respective interests in this case.

25.

In sum: (i) Respondent did not follow the appropriate procedure prior to filling Exhibits “B” and “D,”

as required by Uniform Superior Court Rules, Rule 6.4(B) and Rule 5.5(1); (ii) the Petitioner’s medical and

psychiatric records are discoverable and important to the trial of the instant custody case on its merits

before the Court, and the instant request is merely a continuation of the already extensive litigation over

same; (iii) Petitioner has no desire to receive protected communications under O.C.G.A. §24-5-501(a); and

(iv) the Court should strike Exhibits “B” and “D” treating same as a denial of the Motion and awarding fees

under O.C.G.A. §9-11-37; (v) Petitioner is glad to enter into a consent order regarding the treatment of

Respondent’s psychiatric and/or health records in the event Respondent deems same to be desirable

and/or the Court feels same is appropriate, in spite of the fact that same is not common, nor was that

something the parties discussed and entered into in their underlying divorce case.
Emily Cooper v. Michael-John Cooper
Superior Court of Gwinnett County; CAFN: 23-A-04669-11
Motion to Strike and Combined Response to Motion for Protective Order and Motion to Quash, and Motion for Protective Order
for Production of Documents Filed on 12.07.2023
8.
WHEREFORE, Petitioner respectfully requests:
(a) That the instant Motion and Response be filed, read, and considered;
(b) That the Court deny the relief requested in the “WHEREFORE” clauses of Exhibits “B” and “D,” as
well as any other prayers in the body of the Motions;
(c) That the Court grant the Petitioner’s Motion to Strike and deny the Motions for Protective Order and
Motion to Quash, awarding attorney’s fees to the Petitioner for the instant Response and
prosecution of these issues pursuant to O.C.G.A. §9-11-37;
(d) That, in the event the parties purpose a consent order regarding the release of Respondent’s
psychiatric and medical records, that the Court sign off on same;

(e) That the Petitioner have such additional and further relief as the Court deems to be equitable, right,

just, and in the best interests of the Minor Children.

Respectfully submitted, this 22nd day of December, 2023.

THE SIEMON LAW FIRM, P.C.

/s/ Jordan J. Edwards
JORDAN J. EDWARDS
Georgia Bar No. 757509
Attorneys for Petitioner
jedwards@siemonlaw.com

EMILY P. COOPER, )
)
Petitioner, ) CIVIL ACTION
)
v. ) FILE NO.: 23-A-04669-11
)
MICHAEL-JOHN H. COOPER, ) Related Case No.:23-A-07289-11
) Former Related Case No.: 20-A-03338-11
Respondent. )

CERTIFICATE OF SERVICE

I hereby certify that I have this day served the Petitioner’s Motion to Strike and Combined Response
to Motion for Protective Order and Motion to Quash, and Motion for Protective Order for Production of
Documents Filed on 12.07.2023 upon Respondent’s counsel via STATUTORY ELECTRONIC SERVICE
addressed as follows:

Dawn H. Taylor, Esq.
Dawn@dawntaylorlaw.com

This 22nd day of December, 2023.
THE SIEMON LAW FIRM, P.C.

/s/ Jordan J. Edwards
JORDAN J. EDWARDS
Georgia Bar No. 757509
Attorneys for Petitioner

IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA

EMILY P. COOPER, )
)
Petitioner, ) CIVIL ACTION
)
v. ) FILE NO.: 23-A-04669-11
)
MICHAEL-JOHN H. COOPER, ) Related Case No.: 23-A-07289-11
) Former Related Case No.: 20-A-03338-11
Respondent. )

PETITIONER’S FIRST AND CONTINUING NOTICE TO PRODUCE AND REQUEST FOR PRODUCTION
OF DOCUMENTS TO RESPONDENT

TO: MICHAEL-JOHN H. COOPER, by and through
Dawn H. Taylor
3453 Lawrenceville-Suwanee Road, Ste. A
Suwanee, Georgia 30024
Dawn@dawntaylorlaw.com

NOTICE TO PRODUCE:

You are hereby notified to produce at the time of taking of any deposition of Petitioner or Respondent

in the above-styled case, at any hearing of any interlocutory matter or special motion or any mediation in the

above-styled case, and on the trial of the above-styled case and from time to time and term to term until the

above-styled case is concluded, the documents and records set forth below which are in your possession,

custody or control, the same to be used as evidence by Petitioner above. This notice is provided pursuant

to O.C.G.A. §24-13-27.

REQUEST FOR PRODUCTION OF DOCUMENTS:

In addition, you are requested to produce, pursuant to O.C.G.A. §9-11-34 the documents and records

set forth below for inspection and copying by the attorney for Petitioner at the offices of Jordan J. Edwards,

Esq., The Siemon Law Firm, PC, Lenox Towers, 3400 Peachtree Road NE, Suite 555, Atlanta, Georgia

Emily P. Cooper v. Michael-John H. Cooper
Superior Court of Gwinnett County; Civil Action File No.: 23-A-04669-11
Petitioner’s First and Continuing Notice to Produce and Request for Production of Documents to Respondent
1
30326, at 10:00 am on the 33rd day after service hereof, as provided by law, where adequate facilities are

available for copying.

INSTRUCTIONS

In the event that any document requested is withheld on the basis of claim of privilege, that

document shall be identified by setting forth the following information:

(a) The name and author of the document;
(b) The date of the document;
(c) The name of each person or persons (other than stenographic or clerical assistant)
participating in the preparation of the document;
(d) The date on which the document was received by those having possession of the document;
(e) The name and address of each person, if any, to whom the contents of the document have
heretofore been communicated by copy, exhibition, reading, or substantial summarization;
(f) A brief description of the nature of the subject matter of the document;
(g) Attachments to the document;
(h) The number of pages, attachments or appendices comprising the document;
(i) Whether the document is handwritten, typewritten or otherwise prepared, and;
(j) The number of the request to which the document is responsive.

If, for reasons other than privilege, Respondent refuses to produce any documents

described herein, state the grounds upon which the refusal is based with sufficient specificity to

permit a determination of the propriety of such refusal.

This Request for Production of Documents and Other Things shall be deemed continuing so

as to require further and supplemental production of any and all documents and other evidence and

other things learned of or received after the time of compliance herewith, the production would

otherwise have been required.

This request calls for production of all original documents prepared or authored since the

date of divorce, which are in Respondent’s possession, custody or control. In addition, this Request

calls for the production of all copies of such documents and any drafts thereof, preliminary or

otherwise, which are in the Respondent’s possession, custody, or control or within the possession,

custody or control of any agent, attorney, or other representative of Respondent.

Whenever appropriate, the singular form of a word should be interpreted in the plural, and

vice versa. All words and phrases shall be construed as masculine, feminine, or neutral gender,

according to context. “And” as well as “or” shall be construed either disjunctively or conjunctively as

necessary to bring within the scope of this Request any documents which might otherwise be

construed outside the scope of this Request.

If any document herein was, but no longer is, within the Respondent’s possession, custody or

control, please state in detail:

(a) A summary of the contents of the document;
(b) What disposition was made of it;
(c) The date of such disposition.

DEFINITIONS

As used herein, the term “document” is intended to encompass all documents and things

enumerated in O.C.G.A. §9-11-34(a)(1).

The term “Respondent” includes Respondent, any agents, servants, representatives, or any

other person acting for or purportedly acting on Respondent’s behalf.

“Relating to” shall mean consisting of, referring to, reflecting, pertaining to, or in any other

way logically or factually connected with the matter discussed. A document “relating to” a given

subject is any document identifying, showing, referring to, dealing with, evidencing, detailing,

outlining, defining, interpreting, or pertaining to that subject, including with limitation documents

referring to the presentation of other documents.

The term “Minor Children” shall mean and refer to the children of the parties; to wit: Tuner,

a male child born in 2009; and, Linux, a male child born in 2018.

DOCUMENTS TO BE PRODUCED

Any and all detective reports, investigative reports, and related letters, invoices, photographs, film,

videotape recordings, voice recordings and other tangible evidence and information of any nature relating to

or arising from any surveillance or investigation of the activities of Petitioner which may have arisen from any

investigation undertaken from February 7, 2023 through the date of trial in this matter. Include a list of names

and addresses of any and all private investigators utilized by you. Include copies of the curriculum vitae of

each private investigator rendered to you or your attorney by any such private investigator.

Any and all detective reports, investigative reports, and related letters, invoices, photographs, film,

videotape recordings, voice recordings and other tangible evidence and information of any nature relating

Emily P. Cooper v. Michael-John H. Cooper
Superior Court of Gwinnett County; Civil Action File No.: 23-A-04669-11
Petitioner’s First and Continuing Notice to Produce and Request for Production of Documents to Respondent
4
to or arising from any investigation by any agency arising out of any allegations of misconduct by anyone

as against either the Minor Children in this case, in which such misconduct is alleged to have occurred

between February 7, 2023 and the date of trial in this matter.

Any and all tangible evidence of any nature which is in the possession or control of you or your

attorney, or which is being held for you by any person or entity for safe-keeping, which evidence relates in

any manner to the activities and/or conduct of the parties in this action, including but not limited to notes,

cards, letters, photographs, film documents, tapes, voice recording, clothes, or other such tangible evidence.

Copies of all written reports, including the curriculum vitae of each expert, rendered to you or your

attorney by any such proposed expert witness.

Any and all personal letters and/or correspondence of any kind, including emails, text messages or

any form of social media, between you and Petitioner or between you and someone else regarding Petitioner,

for the period from February 7, 2023 to present.

Copies of all pleadings relating to or associated with any and all legal proceedings in any court of

law, court of equity, administrative court, administrative proceedings in any government agency, which you

are or were a party, or in which either of the Minor Children were involved (excluding pleadings filed into this

case) for the period from February 7, 2023 to present.

Any and all diaries, journals, memos, notes or other documentation kept by you during the period of

time from February 7, 2023, to the date of trial of this matter relating to the activities, conduct, feelings,

thoughts and reflections of either party to this action.

Any and all documents and other evidence or tangible evidence of any nature which tends to show

your efforts (if any) to address your concerns as to the issues raised in this case with Petitioner prior to

seeking court intervention.

All medical records, reports or related documentation relating to the mental or physical health of

the Minor Children, including all bills/invoices from medical professionals from the period from February 7,

2023 to the date of trial.

10.

Any and all tangible evidence, including documents, photographs, audio recordings, video

recordings, evidencing the basis for your responses to any of Petitioner’s Interrogatories to Respondent.

11.

Copies of Any and all documents and other evidence received by you during the course of this action

in response to a nonparty request for production of documents, whether by informal request, or pursuant to

a Request for Production of Documents, Subpoena Duces Tecum and/or Freedom of Information Act request,

or any other type of formal request, through and including the date of trial of the above-styled case.

Any and all documentation evidencing the basis for any of the allegations put forth in Respondent’s

Response to the Amendment to Add Petition for Modification of Custody/Parenting Plan and Motion for

Exigent Hearing (filed October 9, 2023), and any subsequent amendments thereto.

13.

Any and all records of communications between Petitioner and Respondent (including but not

limited to emails, text messages, chat records, voice messages, voice recordings, letters, notes, or any

other written or non-written method of communication) from February 7, 2023 through the date of trial in

this matter, in which the issue of either party’s parenting time was discussed.

14.

Any and all documents and other evidence referencing or relating to any criminal charges filed

against you since February 7, 2023, through the date of trial, regardless of the final disposition of said

charges. Documents responsive to this request shall include but not be limited to: police reports, first

appearance paperwork, jail paperwork, bonding documents, notices to appear in court, formal charging

documents (i.e. indictment, accusation, or citation), pleadings, orders, and documents reflecting the

disposition of any such charges.

15.

Copies of all documentary evidence you intend to introduce in this case that has not already been

supplied in response to the request for production above.

16.