SECOND DIVISION

ANDREW, P. J.,

MILLER and BRANCH, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely

filed.

http://www.gaappeals.us/rules

September 3, 2015

In the Court of Appeals of Georgia

A15A1422. EWING v. EWING.

MILLER, Judge.

Thisinterlocutory appeal arisesfrom a divorce case in which the husband filed

a motion for a protective order seeking to prohibit or limit the wife’s discovery

requests with regard to private emails on the husband’s iPhone.1 The husband also

filed a motion to quash the wife’ssubpoenasfor the production of hisiPhone records.

The husband appeals from the denial of both motions, contending that (1) the trial

court abused its discretion in denying his motion to limit the wife’s use of the emails,

1 The husband originally filed his appeal in the Georgia Supreme Court. After

the case was transferred to this Court, we granted the husband’s application for

interlocutory review. 
and (2) the trial court erred in denying his motion to quash the wife’ssubpoenas.

2 For

the reasons that follow we affirm.

“[A] trial judge has broad discretion in the enforcement of the discovery

provisions of the Civil Practice Act, and we will not interfere with the exercise of that

discretion absent clear abuse.” (Footnote omitted) American Radiosurgery, Inc. v.

Rakes, 325 Ga. App. 161, 166 (2) (751 SE2d 898) (2013).

So viewed, the record shows that the husband and wife were married in

December 2004. On Christmas Eve 2013, the husband and wife were traveling with

their children to Louisiana when the wife picked up the husband’s iPhone3and tried

to open his music play list. The wife inadvertently opened the husband’s email

application and saw a photo of a woman, C. M., with her head lying on the husband’s

chest. When she asked the husband about the picture, he told her that he and C. M.

were at a work function.

2 At the outset, we note that the husband failed to include an enumeration of

error in his brief, as is required by Court of Appeals Rule 22 (a) and Rule 25 (a) (2).

Accordingly, we address the husband’s arguments to the extent that we are able to

discern them from the notice of appeal and the record. See OCGA § 5-6-48 (f).

3 Although the husband had an individual contract for the iPhone, the husband

and wife used each other’s phone “all of the time,” and the wife would play games

and take pictures with the husband’s phone. 

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Early the next morning after the family had gone to bed, the wife retrieved the

husband’s iPhone, opened his email application and found another picture of C. M.

who was wearing a swimsuit. The wife also found sexually explicit videos of C. M.

which C. M. had sent to the husband by email. 

The wife then woke her sister and asked the sister for help in forwarding the

husband’s emails. The wife’s sister forwarded the husband’s emails containing the

pictures and videos of C. M. to the wife’s email account. 

An hour or so later, the wife used the husband’s iPhone to text C. M. The wife

asked C. M. in a text to “show me how much you miss me[.]” C. M. responded by

sending a photo of herself laying down and blowing a kiss. The wife then sent C. M.

a photo so that C. M. would know she wastexting the wife. At that point, the husband

came into the room, asked for his phone, and grabbed his stuff so he could leave. 

The husband subsequently filed for a divorce, contending that the parties’

marriage was irretrievably broken. The wife filed a counterclaim for divorce

contending that, inter alia, the husband was guilty of adultery. During discovery, the

wife subpoenaed C. M. for the purpose of taking her deposition, and the wife

subpoenaed the husband’s iPhone records from his wireless carrier. The wife also

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served the husband with notice of her intent to take his deposition, as well as a

request for production of documents. 

The husband filed a motion for a protective order and objection to the wife’s

discovery requests. In his motion, the husband sought an order either prohibiting or

limiting the wife’s discovery with regard to information obtained from his phone

without his knowledge or permission. Specifically, the husband sought an order

prohibiting the wife from taking C. M.’s deposition and prohibiting any discussion

during his deposition regarding the emails which the wife viewed on his phone. 

The husband also filed a motion to quash the wife’s subpoena for the

production of his iPhone records. The trial court denied the husband’s motions for a

protective order and to quash the subpoena for his iPhone records, and this appeal

ensued. 

1. The husband contendsthat the trial court abused its discretion in denying his

motion for a protective order. We discern no error.

When a party seeks a protective order with regard to discovery, the trial court

“may make any order which justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense[.]” OCGA § 9-

11-26 (c). Protective orders, however,

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should not be awarded when the effect is to frustrate and prevent

legitimate discovery. Further, this Court has held that protective orders

are intended to be protective – not prohibitive – and, until such time as

the [trial] court is satisfied by substantial evidence that bad faith or

harassment motivates the discoveror’s action, the court should not

intervene to limit or prohibit the scope of pretrial discovery.

(Punctuation and footnotes omitted.) Galbreath v. Braley, 318 Ga. App. 111, 113

(733 SE2d 412) (2012). The grant or denial of a motion for a protective order

generally lies within the trial court’s discretion and thisCourt will not reverse the trial

court’s ruling absent clear abuse. See Agio Corp. v. Coosawattee River Resort Assn.,

328 Ga. App. 642, 642-643 (760 SE2d 691) (2014).

“Parties may obtain discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending action[.]” (Punctuation

omitted.) OCGA § 9-11-26 (b) (1). “[I]n the discovery context, 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.” (Citation and punctuation

omitted.) Bowden v. Medical Center, Inc., __ Ga. __, *13 (2) (a) (Case No.

S14G1632, decided June 15, 2015). 

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“It 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.” (Punctuation omitted.) OCGA § 9-11-26 (b) (1).

Moreover, in divorce cases, such as this case, in which the equitable division of

property is at issue, the conduct of the parties, including evidence of a spouse’s

alleged adultery, is relevant and admissible. See Wood v. Wood, 283 Ga. 8, 11 (5)

(655 SE2d 611) (2008). Accordingly, the wife is entitled to engage in discovery

which might lead to admissible evidence of the husband’s alleged adultery. See

OCGA § 9-11-26 (b) (1). Cf. Smith v. Smith, 293 Ga. 563, 566 (5) (748 SE2d 456)

(2013) (trial court did not abuse its discretion in denying husband’s motion for new

trial based on newly discovered evidence of wife’s adultery where husband had

opportunity to engage in discovery concerning the possibility of alleged adultery and

he chose not to).

The husband nevertheless argues that he is entitled to a protective order

prohibiting the wife from asking questions about the emails, pictures and videos

which the wife viewed on his iPhone and forwarded to others. In support of his

argument, the husband relies on Ransom v. Ransom, 253 Ga. 656 (324 SE2d 437)

(1985), which held that Georgia’s wiretapping statute, OCGA § 16-11-62, protects

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spouses from invasions upon their privacy, including the clandestine recording of a

spouse’s private telephone conversations. See id at 658 (1). Ransom, however,

involved the issue of whether the recorded telephone conversations were admissible

for impeachment purposes at the parties’ divorce trial, not whether a spouse is entitled

to ask questions during discovery which might lead to admissible evidence. See

Ransom, 253 Ga. at 659 (3).4

Regardless of the admissibility or inadmissibility of the content of the

husband’s emails, including the photos and videos of C. M., the wife is entitled to

engage in discovery which might lead to admissible evidence of the husband’s

alleged adultery. Consequently, the trial court did not abuse its discretion in denying

the husband’s motion for a protective order.

2. Without citing any authority, the husband argues that the trial court erred in

denying his motion to quash the wife’s subpoena for his iPhone records, because the

subpoena is the fruit of the poisonous tree. We disagree.

As set forth above, matters which are relevant and not privileged are

discoverable, regardless of whether the information sought will be admissible at trial.

4 The husband also citesto Middleton v. Middleton, 259 Ga. 41 (376 SE2d 368)

(1989), which held that tape-recordings made by the husband of the wife’slascivious

conversations on a family telephone were inadmissible.

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OCGA § 9-11-26 (b) (1). The husband does not argue that his iPhone records are not

discoverable. Accordingly, the husband has not shown that the trial court erred in

denying his motion to quash the subpoena for his iPhone records.

Judgment affirmed. Andrews, P. J., and Branch, J., concur.

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