A task force of lawyers from the State Bar and Georgia Chamber of Commerce is finalizing a package of rules on electronic discovery that it will propose to the Legislature during the upcoming session.
“What we found is that Georgia does not have rules on electronic discovery either in the Civil Practice Act or in the uniform state and superior court rules,” said task force member Rocco Testani, a partner at Sutherland Asbill & Brennan whose practice includes defending companies and government agencies in civil litigation. “Over 30 states have rules on e-discovery, and that includes every single state that surrounds Georgia.”
While Georgia litigators and trial judges commonly approach e-discovery disputes by looking for analogous guidance from federal rules or another state’s rules, “there is consensus that it would be a far better idea to have certainty as to how we are going to be handling this growing area of discovery,” Testani said.
E-discovery comes into play frequently in cases involving large companies, but culling digital evidence is becoming more common in other areas of the civil arena, such as divorce and personal injury, according to task force members. Digital evidence may include emails, text messages, cellphone call logs, and Facebook and Twitter posts.
“We live in an electronic world,” said task force member Leslie Bryan, a partner at Doffermyre Shields Canfield & Knowles and former vice president of the Georgia Trial Lawyers Association. “We correspond by email and text messages. We don’t do things via the traditional paper route. I know that there are a lot of people resistant to the notion of getting involved in e-discovery, but it’s coming.”
The task force has not released its draft of proposals, which its members are still commenting on and revising. But Testani said the key themes are proportionality, protocol and safe harbor.
Often, electronic discovery is more difficult, time consuming and expensive than traditional discovery because of the volume of records created and stored on computers, cellphones and other digital media, said Testani.
“If it costs $100,000 to harvest all e-discovery relevant in a particular case when the amount at issue is $20,000, there needs to be limitations brought to bear,” he said. “Right now, under our rules, we have a general standard that [a party] can get any information that would lead to the discovery of admissible evidence at trial. That’s a very broad standard.”
One way to apply proportionality is through cost sharing, he said.
“If you want a lot of discovery in a case … then there ought to be a mechanism that would allow the court to allocate costs fairly,” Testani said. “The other thing we acknowledged in our committee work is the need for communication between litigants and lawyers.”
Establishing an e-discovery protocol that requires conferences early in a case would help better establish what records a party needs, how records are kept and what is available, he said. The task force is considering developing a model checklist that would guide discussions with record custodians to help the seeking party narrow down its request and the records-keeping party better understand what information is being sought. For instance, it could help parties agree on search terms for years’ worth of emails that may save thousands of pages from being processed.
The task force also is considering adopting a safe harbor policy similar to the one found in federal rules that does not sanction a party that unintentionally loses or destroys electronic records that may have been relevant to a case.
“This would not apply to Enron or anyone going out and having a shredding party,” Testani said. Records retention, especially in a large company, can be complex and complicated.
“Often things get deleted by people, usually when there are a lot of users, who may not know what’s going on. Those folks shouldn’t be sanctioned if it was an innocent mistake,” he added.
Bryan said she has some concerns about safe harbor and records retention.
“I have concerns about whether the [record] preservation requirements are strong enough and the sanctions for failure to preserve are strong enough,” she said.
Testani said the task force did not tackle preservation of electronic records because Georgia already has a standard in place.
“It was an issue that existed before we had computers,” he said. “The standard is if you reasonably anticipate litigation then you do have an obligation to preserve evidence.”
While there have been moves at the federal level to develop a specific, bright-line test to define what and when it means to reasonably anticipate litigation, Testani said, “We’re not wading into that here. We should get some basic rules in place first.”
Discussions about amending the state’s Civil Practice Act to regulate e-discovery began a few years ago within the Chamber of Commerce’s membership, said Testani, who also is a member of the chamber’s Law & Judiciary Committee. Last spring, the State Bar of Georgia joined in, thus creating the nine-member panel tasked with negotiating and proposing a set of guidelines.
The task force is led by Cobb County Superior Court Judge J. Stephen Schuster and includes four bar appointees and four chamber appointees.
Corporate and defense attorneys generally support limits on e-discovery, saying limits would restrain the costs associated with retrieving, redacting and producing digital evidence, such as companies’ databases, that can be so staggering they prompt companies to settle regardless of liability.
“It can be a small business and face enormous expenses in responding to e-discovery,” said William Custer, a commercial and product liability litigator at Bryan Cave and chamber member, during a November tort reform discussion hosted by the Georgia Defense Lawyers Association. “I had a fairly mid-sized business that received some e-discovery requests recently, and an outside vendor gave me a quote of $2 million to respond to those requests. I had a very large case recently in which an outside vendor gave me a quote of $15 million to respond to e-discovery requests—and that was using lawyers in Mumbai. And so, there’s no inexpensive way out of that trap.”
But Bryan said the legal community shouldn’t view regulating e-discovery as tort reform. Rather, she said, it’s an issue of fairness for plaintiffs as well.
“Plaintiffs are not just victims of car wrecks; they are also corporations,” she said. The task force’s proposed regulations “should account for the interest of everybody: a spouse seeking divorce, the victim of a trucking wreck, Coca-Cola seeking its rights as a plaintiff. The defense can conduct e-discovery on a plaintiff. That door does swing both ways.”
Testani said the task force aims to have a final draft of proposals ready by Friday. The Georgia General Assembly will convene for the 2013-2014 session on Jan. 14.
During the upcoming session, lawmakers also may see a renewed push for legislation that would codify deadlines in so-called Holt demands, which is on the chamber’s wish list for tweaks to state tort laws.
Defense lawyers and chamber members have blasted the demand letters, used primarily in personal injury and wrongful death cases, as tools for plaintiff’s lawyers to extract big settlements by setting short time frames for response and then slapping the defense with a bad faith claim when they can’t or don’t respond. Opponents of the letters also claim they cause the defense to rush to a settlement decision without having time to fully review all the records of a case.
Legislation last session known as House Bill 1175 would have allowed an insurer at least 60 days to respond to an offer of settlement before a bad faith claim could be brought. The bill also would have required settlement offers to include several documents, including copies of medical and treatment records and billing statements. HB 1175 passed the House Insurance Committee but failed to secure a vote on the House floor before the 30th day of the session, when bills must pass their chamber of origin or die.