Rep. Wendell Willard: No plans for additional hearings on the bill this year.
Rep. Wendell Willard: No plans for additional hearings on the bill this year. (John Disney/Daily Report)

A bill overhauling the state’s discovery rules has fizzled out despite having navigated its way through both judiciary committees of the Georgia General Assembly.

The Senate on Tuesday voted 25-20 against House Bill 643, signaling a victory for plaintiffs lawyers who opposed the latest version. A subsequent vote in the chamber to reconsider the bill passed, but, per Senate rules, the vote placed the bill back in the Rules Committee—which wasn’t scheduled to meet again before the end of the session today.

House Judiciary Committee Chairman Wendell Willard, who filed the original version of the bill last year, held months of meetings with plaintiffs’ and business groups leading up to the current session. He said his committee had forged a delicate compromise between the two sides through changes this spring that would have insured the bill’s passage.

His version of HB 643 passed the House by a 116-54 vote on Feb. 25. But when the bill went to the Senate, he said the Georgia Chamber of Commerce “overshot the runway in trying to make changes and didn’t recognize that the balance had to be maintained, otherwise the likelihood of the bill moving forward would deteriorate.”

“I was a little disturbed that the Chamber did not include me in the discussions it was having with the Senate to make changes,” Willard added.

Georgia Trial Lawyers Association chief lobbyist Bill Clark declined comment Wednesday. However, in written debate on the bill published Tuesday in the Daily Report, GTLA President Brian “Buck” Rogers said the bill would “drive up costs of litigation for small businesses, create significant barriers to justice, unnecessarily burden requesting parties in civil litigation and allow responding parties to stonewall legitimate requests for discovery and destroy discoverable evidence without the fear of sanctions.”

While GTLA lobbied to kill it, the legislation was strongly backed by the Chamber. On Wednesday, its president and CEO, Chris Clark (no relation to Bill Clark), issued a statement thanking the members of the Senate who voted for HB 643.

“This bill in no way restricts either a plaintiff or defendant’s ability to have access to information pertinent to a case,” Clark said. “It is difficult to understand why anyone would oppose the creation of reasonable parameters with regard to scope and cost that, frankly, would benefit both sides.

“At the end of the day, this is about Georgia’s ability to maintain an environment in which our citizens can successfully run businesses, make a living and create jobs,” added Clark. “It is those very people who will be hurt by the runaway costs that will be allowed to continue. “

Two provisions in the Senate version in particular drew the ire of GTLA. They were the inclusion of proportionality—the cost of producing evidence versus the value of a case—as a factor in deciding the scope of discovery in a case and a safe harbor clause protecting records holders that destroy evidence.

The changed bill garnered the approval of the Senate Judiciary Committee on March 12, but committee Chairman Josh McKoon spoke in opposition to the bill on the Senate floor, echoing many of the GTLA’s arguments.

“One of the things I’ve heard for the last two years about this proposal is that we were going to solve a problem regarding proportionality of discovery requests—that companies were being leveraged into settling by overbroad, expensive discovery requests,” said McKoon, a civil litigator and Republican representing Columbus. “That’s just an argument that I have not seen evidence brought forward on other than the general statements being made. I felt the proportionality language did not need to be in the bill and that it would significantly curtail the ability of parties to seek discovery.”

More than proportionality, what made the bill “untenable from my perspective,” McKoon added, “was the spoliation language that literally required written notice be provided by the adverse party before the [records holder] had any duty to preserve documents.”

Current Georgia case law has established a standard of reasonableness for preserving evidence, McKoon said, meaning that a records holder has an affirmative obligation to preserve evidence if it reasonably anticipates being involved in litigation or reasonably expects its records are subject to discovery.

“Replacing that standard with written notice would create an enormous incentive to destroy every document you’ve got,” McKoon said.

McKoon said the changes made to the bill while in his committee were proposed by the bill’s Senate sponsor, Sen. Bill Cowsert, a lawyer and Republican representing Athens, and backed by the Chamber. Cowsert did not respond to requests for comment on Wednesday.

Most of the changes Cowsert proposed sought to undo changes made in the House at the request of GTLA and to restore original language proposed by a joint task force of plaintiffs lawyers, defense lawyers and judges that drafted the bill last year.

“We felt what we presented to Chairman Willard over a year ago was the product of debate, discussion and compromise,” said Rocco Testani, a defense lawyer at Sutherland, Asbill & Brennan and member of the joint task force that drafted the original bill. “We viewed [the original filed bill] as the product of study and review of what was happening all over the country and at the federal level.

“I am confused by those who would say that the Senate was suddenly changing the thrust of the bill,” added Testani, who authored the Chamber’s side of the debate in the Daily Report on Tuesday.

“Clearly after the bill came up again this legislation session, the GTLA became much more active in voicing their concerns. And their changes to the original bill did get reflected in the House Judiciary Committee, but I wouldn’t call that a compromise.”

Both Willard and Testani said they were disappointed in the bill’s ultimate defeat because the underlying intent was to regulate e-discovery, which accounts for most discovery in civil litigation but is not addressed specifically in the Georgia Civil Practices Act, and to bring Georgia’s discovery rules more in line with federal rules.

Willard said he does not plan to hold additional hearings on the proposed legislation this year, but he said he will be closely monitoring how federal courts decide on rules revisions they’re consideration now regarding proportionality and spoliation. Testani also said he hopes the federal courts will decide on the changes later this year so Georgia policy makers will have better direction during the next state legislative session.

“We’re now one of five or six states that haven’t adopted [e-discovery] rules and I intend for us not to be No. 50,” Testani said. “My hope is to see where the federal rules end up and then we can make another effort to get our rules up to date.”