Bank records discoverable in Power of Attorney Dispute

In Bethune v. Bethune (Georgia Court of Appeals A21A1659, March 11, 2022), Donald Bethune was acting as agent for his 89-year-old mother under a power of attorney executed on November 14, 2019. Richard Bethune, Donald’s brother, filed an action seeking relief under the Georgia Power of Attorney Act, O.C.G.A. § 10-6B-1 et seq. On appeal, the issue was whether bank records were discoverable. Richard sought copies of bank records because he alleged Donald had taken their mother’s money and placed it in an account that was only in his name. Donald challenged discovery requests sent to him and to third-party banks. Donald “sought a protective order regarding the petitioner’s request that he produce copies of checking account statements and canceled checks for any accounts holding funds belonging to the principal or being held on her behalf, without date restriction, and that he produce the principal’s last will and testament.

After a hearing, the trial court granted the protective order and Donald’s motion to quash. The Court of Appeals granted an interlocutory appeal to review the discovery issues.

Georgia’s Civil Practice Act provides for broad discovery into all matters that are relevant and not privileged. See OCGA § 9-11-26(b)(1). Georgia’s Evidence Code:

defines “relevant evidence” as that which has “any tendency to make the existence of any fact that is of consequence to the  determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24-4-401. “This is a binary question — evidence is either relevant or it is not.” Moon v. State, 312 Ga. 31, 51 (3) (a) (860 SE2d 519) (2021) (citation and punctuation omitted). “In the context of discovery, courts should and ordinarily do interpret ‘relevant’ very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation.” Hickey, 336 Ga. App. at 414 (2) (a) (citation and punctuation omitted). “The discovery procedure is to be given a liberal construction in favor of supplying a party with the facts without reference to whether the facts sought are admissible upon the trial of the action.” Clayton County Bd. of Tax Assessors v. Lake Spivey Golf Club, 207 Ga. App. 693, 696 (2) (428 SE2d 687) (1993) (citation and punctuation omitted).

The Court of Appeals found that the trial court abused his discretion by refusing to allow discovery of banking records predating the power of attorney. Those records could be relevant because they might have a tendency to make a fact of consequence more or less probable. Donald had argued that actions he took in connection with the principal’s bank accounts or funds simply continued an earlier practice between the two. Because Donald defended the action based on authority to follow an earlier practice between himself and his mother, his defense made the prior bank records relevant. The court went on to say that although relevant records are discoverable, that does not automatically make them admissible. Among other issues, privilege and privacy concerns must be addressed. But there is:

no “reasonable expectation of privacy in copies of checks and deposit slips relating to a checking account, as they are instruments of commercial trade which must necessarily be exposed to numerous persons in the ordinary course of business.” Hickey, 336 Ga. App. at 417.

The Court of Appeals vacated the trial court’s order relating to discovery of banking records. However, the trial court’s order prohibiting discovery of the principal’s Will was upheld, although for different reasons. The Court of Appeals found that the Will was relevant, but was subject to attorney-client privilege and that the principal’s agent could assert that privilege even if doing so benefitted him. If he was acting solely in his personal capacity he could not assert the privilege, but as the principal’s agent, he had authority to do so. Although, as agent, Donald had a duty to preserve his mother’s estate, “nothing in the plain language of that provision purports to create an exception to the attorney-client privilege set forth in OCGA § 24-5-501(a)(2).”