A task force of lawyers has recommended legislation regulating discovery of electronically stored information, an increasingly complex part of civil litigation that most other states have addressed in their laws.
The proposed Georgia law would set limits on the frequency and extent of parties’ requests for the other sides’ emails, text messages, spreadsheets and other documents. The bill also would compel the sides to discuss how to conduct discovery.
"We wanted to have a mechanism [in the law] for cooperation and lawyers working together on how to get e-discovery issues dealt with early on in a case," said task force member Rocco Testani, a partner at Sutherland, Asbill & Brennan whose practice includes defending companies and government agencies in civil litigation. Those issues, he said, include cost, time and format for producing the information.
House Judiciary Committee Chairman Wendell Willard said he is considering filing a bill later this week that incorporates the task force’s recommendations so it can be vetted before the General Assembly reconvenes in 2014.
"I want to put the bill out so people can start reading it," Willard said, adding he expects to hold hearings on it during the late summer or early fall.
The task force’s proposals would allow the court to limit "unreasonably cumulative or duplicative" or "unduly burdensome or expensive" discovery requests. It also would give parties 40 days from when a complaint is filed to request a meeting in which they would hash out a discovery plan. The meeting would have to take place within 21 days of the request.
Parties also would be required to consider possibilities for settlement and resolve any problems regarding the scope of preservation during their discovery meeting.
Resulting discovery plans would have to contain a schedule, preservation requirements (including conditions for terminating the duty to preserve information), details about the format or procedures by which electronically stored information will be produced, identification of any sources of electronically stored information that are not reasonably accessible, the method for asserting attorney-client privilege or proprietary status and any limitations on discovery. If parties can’t agree to a discovery plan, they must appear before the presiding judge for a discovery conference in which the court shall order one.
If the General Assembly and governor ultimately approve regulations, "we will follow over 45 other states that have already addressed these discovery issues," wrote task force member Alison Grounds, a partner at Troutman Sanders and co-founder of the firm’s Electronic Discovery and Data Management practice group.
"The proposed rule changes address the impact of increasing volumes of ESI [electronically stored information] generated and stored by individuals, companies and other entities and the exponentially increasing costs and burdens associated with preserving, collecting, reviewing and producing ESI in litigation," Grounds added.
Cobb County Superior Court Judge Stephen Schuster, who chaired the task force, said its members represented "a broad and diverse group of litigation attorneys." Discussions about tweaking the state’s Civil Practice Act to regulate e-discovery began a few years ago within the Chamber of Commerce. Last year, the State Bar of Georgia joined the discussion, thus creating the task force.
According to the Chamber and Schuster, other task force participants were Emily Bair, owner of a family law practice; Leslie Bryan, of counsel at Hawkins Parnell Thackston & Young and former president of the Georgia Trial Lawyers Association; John Childs, Georgia-Pacific assistant general counsel and head of litigation; Michael McGlamry, a named partner at Pope, McGlamry, Kilpatrick, Morrison & Norwood; Kimberly Johnson, a complex litigation, personal injury and products liability attorney at Pope, McGlamry, Kilpatrick, Morrison & Norwood; Charlotte Perrell, founding partner of Perrell & Wright whose practice includes business and commercial litigation; Mary Prebula, a general practitioner in Duluth; and Henry Walker, a partner at Kilpatrick Townsend & Stockton and vice chairman of the Georgia Chamber of Commerce’s Law & Judiciary Committee.
In a letter to Bar President Robin Frazer Clark, Schuster indicated the task force drafted the bill after studying laws in surrounding states and big commerce states, such as Delaware and New York, as well as federal rules.
"I can comfortably state that everyone on the task force agrees with ninety percent of the proposal," Schuster wrote. "The parts not agreed upon are sections that attorneys from different practice areas will probably never reach agreement. These good faith disagreements (which were not consistent with all members) were resolved by me with an eye towards what will assist a court in moving a lawsuit to a fair resolution at an appropriate pace."
The task force’s proposal also would require a party to produce electronic documents in the same form as they are kept in the usual course of business unless otherwise stipulated in a discovery request or ordered by the court.
Parties seeking protective orders shielding them from discovery must prove that requests for electronically stored information presents an undue burden or cost. The legislation would allow the court to order discovery any way and would prohibit the court from granting a protective order if the party seeking it failed to prove that it made a good faith effort to reach agreement with the other parties first.
"A party or attorney requesting discovery from a non-party must take reasonable steps to avoid imposing undue burden or expense on the non-party," the proposed bill states. "The requesting party shall pay reasonable costs associated with the production of electronically stored information by non-parties."
Parties who do not make good faith attempts to confer with a non-party to resolve a discovery dispute or attempt to avoid undue expense may be ordered to pay attorneys fees or other costs.
The task force also built in safe harbor provisions that would protect parties who unintentionally destroy electronic documents sought in discovery.
Many companies regularly purge files, but those policies are supposed to be suspended on documents when litigation is filed and discovery is looming. However, mistakes happen, Testani said.
"It’s easier in many ways to inadvertently get rid of electronic material than hard-copy files," he said. Companies’ IT systems can easily become overwhelmed trying to retain emails, document files and other electronic information.
In order to impose sanctions, the court would have to find that failure to preserve such documents was "willful or in bad faith and caused substantial prejudice in the litigation" or that it "deprived a party of a meaningful opportunity to present a claim or defense," the proposal states.
John Krueger, vice president of public policy at the Georgia Chamber of Commerce, said members have not thoroughly analyzed the task force’s recommending legislation but believe both plaintiffs’ lawyers and defense attorneys will eventually have a bill they can support.
"After an initial look, we thought it was a good starting point. There was a lot of good progress," he said. "We understand there may need to be some further negotiation."
Georgia Trial Lawyers Association chief lobbyist Bill Clark said he couldn’t offer a detailed analysis because his organization is primarily focused on the current session, which is slated to end on March 28. However, he said GTLA is hopeful that the task force’s proposed e-discovery regulations "struck an even balance."
"We are not supportive of something that allows defendants to hide the ball and charges plaintiffs to find the ball," Clark said, referring to the association’s general stance on discovery regulations.
Bar President Clark, who is married to Bill Clark, said she also has not had time to review the task force’s proposal. She said it will follow the routine vetting procedure, which requires approval first from the bar’s Advisory Committee on Legislation, then Executive Committee approval and, lastly, approval from the Board of Governors.
The task force members are:
-Cobb County Superior Court Judge Stephen Schuster, chairman;
-Emily Bair, owner of a family law practice;
-Leslie Bryan, of counsel at Hawkins Parnell Thackston & Young and former president of the Georgia Trial Lawyers Association;
-John Childs, Georgia-Pacific assistant general counsel and head of litigation;
-Alison Grounds, a partner at Troutman Sanders and co-founder of the firm’s Electronic Discovery and Data Management practice group;
-Kimberly Johnson, a complex litigation, personal injury and products liability attorney at Pope, McGlamry, Kilpatrick, Morrison & Norwood;
-Charlotte Perrell, founding partner of Perrell & Wright whose practice includes business and commercial litigation;
-Mary Prebula, a general practitioner in Duluth;
-Rocco Testani, a partner at Sutherland, Asbill & Brennan whose practice includes defending companies and government agencies in civil litigation