A lawsuit against Newton County will continue after a hearing in Superior Court Monday.

Sam M. Hay III’s case against the county will proceed to the discovery stage after a hearing of multiple motions in the courtroom of Judge Eugene Benton. During the discovery process, both sides will share information before going to trial, making delays in court less likely.

Benton granted the motion for discovery for John Strauss, Hay’s attorney, with the exception of deposing Newton County Commissioner J.C. Henderson concerning a video made of him and Billy Durden. Strauss, however, is free to talk with Henderson — and other commissioners — about other issues of the case, not related to the video.

Determining whether or not the video, made by Durden, was legally obtained took up much of the time in court. Durden made the recording in July by turning on the cell phone camera on his hip while he talked with Henderson about issues related to his former lawn maintenance contract.

In the video, played during the hearing, Henderson said “there were a whole lot of negative emails going back and forth.”

Strauss and Hay saw the video, and the latter, having never seen the correspondence mentioned on tape, filed an open records request with the county in September.

Newton County responded with a suit of their own against Hay, stating he was colluding and conspiring with Durden to extort money, that Durden be made party to the action, and that the original case be dismissed.

Those motions led to Monday’s hearing.

Ed Tolley, representing Newton County, argued that Strauss should be dismissed from the case, that Hay was trying to commit extortion and that the case should be thrown out, due in large part to the video he considered being illegal.

Strauss argued back, saying the extortion claim was unwarranted because extortion is a criminal, not civil, violation. This case is a civil case.

“Threatening to sue is not extortion,” Strauss said. “Criticism of the county’s waste of money is extortion? There’s no way.”

“I cannot think of anything other than First Amendment rights more important for a citizen than to be able to file a grievance against the government.”

After Strauss made those initial statements during the hearing the day’s proceedings centered on the video.

Tolley said the video was taken in the privacy of Henderson’s home and was illegal, and that Henderson was threatened to have the video shown if Durden was not paid $100,000 by the county.

“That is a crime,” Tolley said. “Not extortion as the crime, per say, but a crime to do the video tape.”

After declaring there were no emails between commissioners discussing the documents in question, Tolley presented cases to try to prove the video’s illegality.

He used an example of a case involving a video taken of sexual acts in someone’s bedroom, and a part of the Georgia Code 16-11-62 under eavesdropping. Section 2 of that code states: “Any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view; provided, however, that it shall not be unlawful.”

The video of Henderson was filmed on his front porch, at times with him going in and out of his front door, and at other times waving to pedestrians walking by his house. Therefore, Tolley claimed the setting was in what is expected to be his private residence, and Strauss claimed the setting was in public view. Both arguments matched different parts of the law as it appears in the code.

Benton wanted further instances whether or not the video was in filmed in private, or that it was considered public.

“If anyone was standing on their front porch naked, they could be charged with public indecency,” Benton said.

He later gave both attorneys 10 days to bring more legal evidence defining the public view, private place aspects of taking the video, and impounded the video until he could rule further.

During the hearing both Durden and Henderson took the witness stand, explaining the video and other topics.

Durden was asked by Tolley the dates of the video and of his conversations with Strauss. Tolley then questioned Henderson about the video and his contact with Strauss.

Henderson told Tolley and Benton that Strauss had contacted him without first going through Newton County’s attorney Tommy Craig.

That prompted Tolley to ask that Strauss be removed from the case or the case be dismissed.

Benton ruled that Strauss could stay on the case, but was to not have direct contact with anyone to do with it without going through their attorney.

Strauss also served as Durden’s attorney on a case against Newton County concerning the termination of Durden’s lawn maintenance contract — which was settled out of court — and another case Durden has claiming slander against Chairman Keith Ellis, the estate of former county manager John Middleton and Gary Campbell, who took over the county’s lawn maintenance contract — which was dismissed in superior court.

Benton also ruled to add Durden to the open records case, which allows the county to pursue claims that he conspired with Hay and violated a settlement agreement of his wrongful termination case.

Tolley and Strauss now have about a week to present their findings of any proof of the video’s legality before a ruling will be made and the future of Hay’s open records case determined.

“We were originally here for a petition by Mr. Hay saying that the county is in violation of the Georgia Open Records Act,” Benton said. “All the other stuff is how we get to the bottom line.”

Editor's note: The tenth paragraph of this story has been changed to reflect that extortion is a criminal charge and the case of Hay vs. Newton County is civil.