Full Text of Plaintiff’s Brief

COURT of APPEALS of GEORGIA

Case Number A26I0004

P.A.M. TRANSPORT, INC. AND SECORA WADE,

Defendants / Applicants

— Versus —

CAROLYN EDWARDS, as mother and as Next of Kin of Shawanda Edwards, deceased, and as Administrator of the Estate of Shawanda Edwards, deceased,

Plaintiff / Respondent

Plaintiff’s Response to Application for Interlocutory Appeal

Leighton Moore

Georgia Bar No. 520701

THE MOORE LAW FIRM, PC

1819 Peachtree Street NE Suite 403

Atlanta, GA 30309

Phone: 404-285-5724 leighton@moorefirmpc.com

Daniel E. Holloway

Georgia Bar No. 658026

DEH LAW, PLLC

2062 Promise Road, Unit 1305

Rapid City, SD 57701

(404) 670-6227

dan@dehlegal.com

Andre Dennis

Georgia Bar No. 606645

THE DENNIS LAW FIRM, LLC

101 Marietta Street NW, Suite 2200 Atlanta, Georgia 30303

Tel: (404) 850-7951

Fax: (404) 850-7948

Email: andre@afirmthatfights.com

Shean D. Williams

Georgia Bar No. 764139

Gary B. Andrews

Georgia Bar No. 019299

THE COCHRAN FIRM ATLANTA

100 Peachtree Street, NW, Suite 2600 Atlanta, Georgia 30303

Tel: (404) 222.9922

Fax: (404) 222-0170

Email: swilliams@cochranfirmatl.com gandrews@cochranfirmatl.com

Attorneys for Plaintiff

TABLE OF CONTENTS

SUMMARY OF ARGUMENT 5

THE PARTIES, CLAIMS, AND ISSUES 9

THE TRIAL COURT’S ORDER 12

ARGUMENT 13

1. The Defense does not meet Condition 1: The trial court’s order is not dispositive. 14

2. The Defense does not meet Condition 2: The trial court’s order is correct. It is not an abuse of discretion. 14

The Law Concerning the Fifth Amendment & Civil Discovery 15

The trial court’s denial of the motion was correct. It was not an abuse of discretion. 17

3. The Defense does not meet Condition 3: The Supreme Court and this Court already have precedent that controls this issue, so new precedent is not necessary or desirable. 19

CONCLUSION 21

TABLE OF AUTHORITIES

Cases

Austin v. Nagareddy, 344 Ga. App. 636, 812 S.E.2d 162 (2018) 16-17

Axson v. National Surety Corp., 254 Ga. 248, 327 S.E.2d 206 (1985) 5, 7, 15-17, 19-21

Chumley v. State, 282 Ga. App. 117, 637 S.E.2d 763 (2006) 7, 15, 17, 19, 20

Classic Art Corp. v. State, 245 Ga. 448, 265 S.E.2d 593 (1980) 15

Dempsey v. Kaminski Jewelry, Inc., 278 Ga. App. 814, 630 S.E.2d 77 (2006) 7, 15-17, 19, 20

Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307 (1999) 12

Parham v. Stewart, 308 Ga. 170, 839 S.E.2d 605 (2020) 13

Thompson v. State, 294 Ga. App. 363, 669 S.E.2d 421 (2008) 15

United States v. Hubbell, 530 U.S. 27, 120 S. Ct. 2037 (2000) 16

Regulations

49 C.F.R. § 390.6 11

49 C.F.R. § 391.23 11

49 C.F.R. § 393.40 11

49 C.F.R. § 395.1 11

49 C.F.R. § 396.3 11

Rules

Ga. Ct. App. R. 30 9, 13-14, 19, 21

[W]here a party asserts the Fifth Amendment … he must respond to each question asked, asserting the privilege to those questions he deems necessary. Accordingly, the trial court was correct in denying appellant’s motion for a blanket protective order.

— Axson v. National Surety, 254 Ga. 248 (1985).

SUMMARY OF ARGUMENT

The Defendants seek an interlocutory appeal from a trial court order that denied a frivolous motion seeking to stay a case entirely, for an indefinite duration, based on speculation that some discovery issues might in the future implicate Fifth Amendment rights of one of two Defendants. This case involves a car crash. Defendant Wade drove a truck (a tractor-trailer). According to Wade, Shawanda Edwards’ car was stalled and stopped in Wade’s lane. Wade says he couldn’t stop in time. The crash killed Edwards. Police did not cite Wade for any violation. In this civil suit, Wade did not plead the Fifth Amendment when answering interrogatories (which included the core, substantive issues). Later, when Wade’s lawyers made an Open Records request to the police, the department withheld some documents on the ground that other records “pertain to a pending investigation.” Wade has not been indicted. Given the lack of a traffic citation, it seems unlikely he ever will be. Wade offers no reason to think he will. Wade’s interrogatory responses do not incriminate him. To invoke the Fifth Amendment, one must show that “a real danger of incrimination exists.” Wade offers nothing to show such a danger exists — or ever will exist — from any discovery in this case.

Against that background, based on speculation about a future indictment and an unexplained assumption that Wade’s self-exonerating testimony will somehow incriminate him, Wade and his corporate co-Defendant, jointly sought to stay the entire case.

Even on the most generous view, the Defense over-reached. For starters, corporations have no Fifth Amendment rights. For that reason alone, it would have been an abuse of discretion for the trial court to grant the motion. The trial court properly denied the motion.

The order is reviewed for abuse of discretion. For the trial court’s order to be an abuse of discretion, Georgia law would have to say a trial court can never refuse to stay a case entirely when a defendant intends to assert Fifth Amendment rights. But Georgia law does not say that. Georgia law says the opposite. Even when a civil defendant has already been indicted — where the Fifth Amendment issue is definite and acute, not speculative and remote — our Supreme Court holds that a trial court properly refuses to stay the civil case entirely. This Court has applied that ruling in the pre-indictment context, too.

In Axson v. National Surety, 254 Ga. 248 (1985), an individual was indicted criminally. Before the criminal trial, he was sued in a civil case. In the civil case, the defendant “filed a motion for protective order, asking that all discovery in the civil action be stayed pending outcome of the criminal proceedings” — just as the Defendants did here. In Axson the trial court denied the motion — just as the trial court did here. The Supreme Court affirmed the trial court — just as this Court would be bound to do here:

We hold that where a party asserts the Fifth Amendment privilege against self-incrimination to matters sought to be discovered, he must respond to each question asked, asserting the privilege to those questions he deems necessary. Accordingly, the trial court was correct in denying appellant’s motion for a blanket protective order. This is not to say that appellant may not now raise the privilege against self-incrimination during discovery.

This Court followed Axson in another case in which the civil defendant had already been indicted. The Court affirmed the trial court’s refusal to stay the entire civil case pending the outcome of the criminal case. Chumley v. State, 282 Ga. App. 117 (2006). And this Court also applied Axson in a pre-indictment case, too: Dempsey v. Kaminski Jewelry, 278 Ga. App. 814 (2006). These decisions control the issue here.

The trial court did not abuse its discretion by following Axson, Chumley, and Dempsey.

The Defense deals with this line of caselaw by misrepresenting their motion — saying their motion sought only to delay Wade’s deposition. (Application, pg. 7.) Not so. The motion sought to stay the entire case — even as to Wade’s corporate co-defendant, which has no Fifth Amendment rights. The motion sought to stay document discovery from Wade (to which the Fifth Amendment likely has no application). The Defense is asking for exactly what the defendants in Axson, Chumley, and Dempsey asked for — that all discovery in the civil action be stayed pending outcome of the criminal proceedings.

There’s no getting around Axson, Chumley, and Dempsey. They control this issue. The trial court’s denial of the motion was correct.

Under this Court’s Rule 30, there is no lawful basis for an interlocutory appeal. Rule 30 prescribes three conditions, at least one of which must be met, to allow an interlocutory appeal:

An application for leave to appeal an interlocutory order will be granted only when it appears from the documents submitted that:

(1) The issue to be decided appears to be dispositive of the case; or

(2) The order appears erroneous and will probably cause a substantial error at trial or will adversely affect the rights of the appealing party until entry of final judgment, in which case the appeal will be expedited; or

(3) The establishment of precedent is desirable.

Condition 1 does not apply, because the trial court’s order is not dispositive. Condition 2 does not apply, because the order straightforwardly applies controlling precedent. And Condition 3 does not apply, because there is already controlling precedent.

The Defense meets none of the conditions necessary to authorize an interlocutory appeal. An interlocutory appeal here would accomplish nothing but unnecessary work, expense, and delay. The law refuses the Application.

THE PARTIES, CLAIMS, AND ISSUES

In the trial court, the Defense sought to stay all proceedings in this case — every request to inspect the truck at issue, every request for documents, every (additional) interrogatory, every deposition of every witness, every question in every deposition. The Defense motion (which the trial court denied) thus sought “an order preventing the July 14, 2025 deposition of Secora Wade and granting a stay in proceedings….” (Ex. 3 to Application at 1.) To understand the breadth of the Defense’s request, one must understand the Defendants, the claims, and the discovery issues.

A few days after Christmas 2024, P.A.M. Transport’s driver, Secora Wade, was driving a tractor-trailer on I-85 North a few miles outside Atlanta. Wade drove into Shawanda Edwards’ car and killed her.

In March 2025, Defendant Wade answered interrogatories that addressed not only mundane issues (name, address, etc.) but also the core, substantive issues in the case. Wade answered each interrogatory. He did not invoke the Fifth Amendment. Wade was not given a traffic citation. (Ex. 2 to the Application, Interrogatory 10.) Wade’s “in detail” description of the crash was that Edwards’ car was stalled in his lane and Wade couldn’t stop his truck in time.

(Id.) None of Wade’s answers incriminate him.

There are two Defendants in this case: Secora Wade and P.A.M. Transport Inc. (“PAM”). The claims against PAM include not only vicarious liability for Wade’s negligence, but direct liability for PAM’s own negligence. The complaint alleges that “Defendants WADE, and PAM TRANSPORT, each committed acts of omission and commission.” (Ex. 1 (Complaint), ¶ 26.) Specifically, the complaint alleges that PAM violated various provisions of the Federal Motor Carrier Safety Regulations.

These alleged regulatory violations raise issues of PAM’s direct liability. For example, 49 CFR 390.6 provides that “A motor carrier [i.e., PAM] may not coerce a driver of a commercial motor vehicle to operate such vehicle in violation of” various regulations. Section 391.23 required PAM to investigate Wade before employing him. Section 393.40 required PAM to outfit the truck with certain types of brakes. Section 395.1 required PAM to limit Wade’s driving hours. Section 396.3 required PAM to perform regular maintenance on the truck. These are only examples. The case embraces a multitude of requirements for PAM.

The case involves a multitude of discovery issues concerning PAM’s own acts and omissions — irrespective of Wade. Discovery from PAM will include inspection of the truck, document requests, and depositions of PAM officers or employees other than Wade.

The case also includes a variety of issues concerning Wade. These issues range from mundane background issues (his age, his work history, his health) to the core, substantive questions. Discovery will also involve document discovery from Wade.

THE TRIAL COURT’S ORDER

The trial court’s order denied the Defense motion but made no additional decisions. This is the entirety of the order:

The order made no decision about whether and to what extent Wade has waived his Fifth Amendment rights by testifying through interrogatory responses. The order made no decision about what questions the Fifth Amendment right applies to if Wade did not waive it. And the order made no decision about whether to give an adverse-inference instruction at trial.

ARGUMENT

To permit an interlocutory appeal, the law requires the Defense to establish at least one of three conditions:

An application for leave to appeal an interlocutory order will be granted only when it appears from the documents submitted that:

(1) The issue to be decided appears to be dispositive of the case; or

(2) The order appears erroneous and will probably cause a substantial error at trial or will adversely affect the rights of the appealing party until entry of final judgment, in which case the appeal will be expedited; or

(3) The establishment of precedent is desirable.

Ga. Ct. App. Rule 30. The Defense meets none of these conditions, so the law does not permit an interlocutory appeal.

1. The Defense does not meet Condition 1: The trial court’s order is not dispositive.

The denial of a protective order is not dispositive. So Condition 1 does not authorize an interlocutory appeal.

2. The Defense does not meet Condition 2: The trial court’s order is correct. It is not an abuse of discretion.

Condition 2 requires two findings: (a) that the order appears erroneous, and (b) that the order will probably cause a substantial error at trial or adversely affect PAM’s rights and Wade’s rights. As for finding (a) this would mean showing that the trial court’s order appears to be an abuse of discretion. The order denied a motion for a protective order, and such orders are discretionary. See Chumley v. State of Ga., 282 Ga. App. 117 (2006):

The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court and the exercise of that discretion is reviewed on appeal for abuse.

The trial court’s order is correct — not an abuse of discretion.

The Law Concerning the Fifth Amendment & Civil Discovery

We start by laying out the principles the trial court was required to apply. The Defendants’ motion was based solely on Defendant Wade’s potential invocation of the Fifth Amendment.

The Fifth Amendment does not apply to corporations.

• Classic Art Corp. v. State, 245 Ga. 448 (1980): “Under the 5th Amendment, a corporation cannot avail itself of the privilege against self-incrimination.”

• Thompson v. State, 294 Ga. App. 363 (2008): “Under both Georgia and Federal law, corporations have no Fifth Amendment rights…. It is well established that corporations and other collective entities are treated differently than individuals regarding the right against self-incrimination in that corporations have no right or privilege against self-incrimination.”

The Fifth Amendment does not apply to discovery of pre-existing documents unless the bare admission of possessing the documents would be incriminating.

• Dempsey v. Kaminski Jewelry, 278 Ga. App. 814 (2006): “The act of producing a document, financial or otherwise, does not in itself automatically create evidence by means of a testamentary act in the way that placing a foot in a shoe print, responding to a pre-trial interrogatory, or testifying at trial does. Instead, as here, where the trial court has found that the act of producing the information is not sufficiently incriminating to implicate the right against self-incrimination, the act may merely allow access to evidence already in existence, like the operation to recover a bullet in a defendant’s body.”

• US v. Hubbell, 530 US 27 (2000): “a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege. … On the other hand, we have also made it clear that the act of producing documents in response to a subpoena may have a compelled testimonial aspect. … By producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic.”

The Fifth Amendment protects information only on a showing that a real danger of incrimination exists.

• Axson v. National Surety, 254 Ga. 248 (1985): “Where questions are on their face innocent, the party raising the privilege may be required to provide sufficient information on which the court may find that a real danger of incrimination exists.”

The Fifth Amendment must be invoked question by question. Blanket invocations are invalid.

• Axson v. National Surety, 254 Ga. 248 (1985): “We hold that where a party asserts the Fifth Amendment privilege against self-incrimination to matters sought to be discovered, he must respond to each question asked, asserting the privilege to those questions he deems necessary. … It is for the court to say whether his silence is justified.”

• Austin v. Nagareddy, 344 Ga. App. 636 (2018): “where a party invokes the privilege against self-incrimination in discovery matters, he may not make a blanket refusal to answer all questions, but must specifically respond to every question, raising the privilege in each instance he determines necessary.”

The Fifth Amendment does not require a general stay of discovery in a civil action.

• Axson v. National Surety, 254 Ga. 248 (1985): “We hold that where a party asserts the Fifth Amendment privilege against self-incrimination to matters sought to be discovered, he must respond to each question asked…. Accordingly, the trial court was correct in denying appellant’s motion for a blanket protective order.”

• Austin v. Nagareddy, 344 Ga. App. 636 (2018): “a merely conclusory allegation that any and all discovery would prejudice the criminal investigation, without more, would frustrate legitimate discovery.”

• Chumley v. State, 282 Ga. App. 117 (2006): “Chumley … filed a motion for a protective order … requesting that he not be required to respond to the State’s discovery request pending the final disposition of his criminal case. … The question before us is whether Chumley can rely on the Fifth Amendment to justify a protective order to stay all discovery pending the conclusion of his criminal RICO case. We can find no legal basis for concluding the affirmative.”

The trial court’s denial of the motion was correct. It was not an abuse of discretion.

Under the controlling precedent shown above, the trial court’s denial of the motion was correct — for multiple reasons.

First, the Defense motion sought to stay discovery from Defendant PAM, a corporation. As shown above, corporations have no Fifth Amendment rights. That Wade might invoke the Fifth Amendment on some issues could not justify staying discovery from PAM. The Defense does not (because they cannot) explain how protecting Wade against self-incrimination could require a stay of discovery from PAM. The Fifth Amendment does not protect Wade from being incriminated by PAM. It is a right against self-incrimination only. The motion was overbroad, and there is no plausible argument that the trial court abused its discretion by denying the motion. So Condition 2 of Rule 30 does not authorize an interlocutory appeal.

Second, the Defense motion sought to stay all discovery from Defendant Wade, including document discovery. In this automobile crash case, it is hard to imagine how Wade’s mere production of relevant documents that pre-existed the crash could constitute a self-incriminating admission. The Defense does not say it could, much less explain how. Because the Defense motion baselessly sought to prevent document discovery from Wade, again the motion was over-broad, and there is no plausible argument that the trial court abused its discretion by denying the motion. For this independent reason, Condition 2 does not authorize an interlocutory appeal.

Third, as to Wade’s deposition, the Defense sought an indefinite delay on all topics. If Wade has not waived his Fifth Amendment rights by his interrogatory answers (which he likely has), then a tailored request for relief might have sought to delay the deposition on topics that might incriminate Wade personally — while proceeding on topics that could incriminate no one or that bear only on PAM’s potential liability. But instead of a tailored motion, the Defense chose to go for broke — to delay everything. Again, there is no plausible argument that the trial court abused its discretion by denying a motion that included forms of relief the Defense did not (and still does not) even try to justify.

For these three independent reasons, Condition 2 does not authorize an interlocutory appeal.

3. The Defense does not meet Condition 3: The Supreme Court and this Court already have precedent that controls this issue, so new precedent is not necessary or desirable.

The final condition that authorizes an interlocutory appeal in some cases is that “The establishment of precedent is desirable.” Here, there is already controlling precedent:

• Axson v. National Surety, 254 Ga. 248 (1985)

• Chumley v. State of Ga., 282 Ga. App. 117 (2006)

• Dempsey v. Kaminski Jewelry, 278 Ga. App. 814 (2006).

In all three of those cases, the respective courts addressed a trial court’s refusal to stay a civil action during the pendency of a related criminal matter. In all three cases, the courts affirmed the trial court’s decision.

We see no material difference between the factual context of those cases and the context of the present case. Of course there are differences (party names, dates of events, causes of action, etc.) but none relevant to the reasoning of Axson, Chumley, or Dempsey. So those decisions control the issue here. New precedent is unnecessary.

To argue for the need for new precedent, the Defense suggests one difference: This case is different, they say, because Wade does not know if he will be criminally charged. That’s not a material difference. First, in Dempsey, the defendant had not been indicted, either. “An indictment has not yet been issued in the criminal case.” 278 Ga. App. at 814. Second, and more important, the case for a stay of discovery is stronger where the defendant has already been criminally indicted — as in Axson and Chumley. After an indictment, the burden on the exercise of Fifth Amendment rights is definite and acute. Before an indictment, the burden is speculative and remote. Axson and Chumley hold that a trial court properly denies a stay of all discovery even when the burden on the defendants’ rights is definite and acute. We see no rational explanation for how those holdings do not also apply where the burden on a defendant’s rights is speculative and remote. The Defense offers no explanation of that. And by following Axson in a pre-indictment case, Dempsey resolves the issue: Axson applies here just as it would after an indictment.

Controlling precedent on the issue here already exists — three times over. So Condition 3 of this Court’s Rule 30 does not authorize an interlocutory appeal, either.

CONCLUSION

This Court’s Rules provide that “An application for leave to appeal an interlocutory order will be granted only when it appears from the documents submitted that” at least one of three conditions are met. None are met here. So the law does not permit an interlocutory appeal. Plaintiff therefore asks the Court to deny the Application.

This submission does not exceed the word count limit imposed by Rule 24.

Respectfully submitted August 4, 2025.

/s/ Leighton Moore

Leighton Moore

Georgia Bar No. 520701

THE MOORE LAW FIRM, PC

1819 Peachtree Street NE Suite 403

Atlanta, GA 30309

Phone: 404-285-5724 leighton@moorefirmpc.com

/s/ Daniel Holloway

Daniel E. Holloway

Georgia Bar No. 658026

DEH LAW, PLLC

2062 Promise Road, Unit 1305

Rapid City, SD 57701

(404) 670-6227

dan@dehlegal.com

/s/ Andre Dennis

Andre Dennis

Georgia Bar No. 606645

THE DENNIS LAW FIRM, LLC

101 Marietta Street NW, Suite 2200 Atlanta, Georgia 30303

Tel: (404) 850-7951

Fax: (404) 850-7948

Email: andre@afirmthatfights.com

/s/ Shean D. Williams

Shean D. Williams

Georgia Bar No. 764139

Gary B. Andrews

Georgia Bar No. 019299

THE COCHRAN FIRM ATLANTA

100 Peachtree Street, NW, Suite 2600 Atlanta, Georgia 30303

Tel: (404) 222.9922

Fax: (404) 222-0170

Email: swilliams@cochranfirmatl.com gandrews@cochranfirmatl.com

Attorneys for Plaintiff

CERTIFICATE OF SERVICE & COMPLIANCE

Pursuant to Court of Appeals Rule 6(b)(2), the foregoing document is being served by United States Postal Service to the following. It will also be served by email.

Brannon J. Arnold

Georgia Bar No. 218034

WEINBERG, WHEELER, HUDGINS, GUNN & DIAL, LLC

3344 Peachtree Road NE, Suite 2400

Atlanta, Georgia 30326

T: (404) 876-2700

barnold@wwhgd.com

Attorney for Applicant/Defendant Secora Wade

Scott W. McMickle

Georgia Bar No. 497779

Matthew R. Sessions

Georgia Bar No. 899806

MCMICKLE KUREY & BRANCH, LLP

217 Roswell Street, Suite 200

Alpharetta, Georgia 30009

T: (678) 824-7800

swm@mkblawfirm.com

msessions@mkblawfirm.com

Attorneys for Applicant/Defendant P.A.M. Transport, Inc.

August 4, 2025

/s/ Daniel E. Holloway

Georgia Bar No. 658026