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controlling.”); Byrnes v. IDS Realty Trust, 85 F.R.D. 679, 683
(S.D.N.Y. 1980) (“[T]hat the [technical] information in these
documents was not necessarily confidential [,] ‘that is, known
only to the client’[,] does not defeat the privilege as long as
the communication is made in confidence.”).
Admission of the exhibits and of any testimony of Kelly
regarding the contents of the exhibits would disclose a
privileged communication between client and attorney.
Given the existence of privileged communications, who has held,
and who now holds, the privilege?
From the Kelly affidavit, we conclude that, with respect to
the legal advice contained in the exhibits, Kelly believed his
client to be Surgery Center, and only Surgery Center, and we find
that his client was Surgery Center. As stated, Surgery Center is
a Georgia limited liability company, and a member of a Georgia
limited liability company is considered a person separate from
the company. Yukon Partners, Inc. v. Lodge Keeper Group, Inc.,
572 S.E.2d 647, 651 (Ga. Ct. App. 2002).
International admits that Georgia courts have not addressed
whether an attorney who represents a limited liability company
also represents the individual members of the company.
International argues, however, that Georgia law largely is in
accord with Federal law on the question of who holds, and hence
has the power to assert or waive, a corporation’s attorney-client
privilege. Compare Zielinski v. Clorox Co., 504 S.E.2d 683, 685
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