Following the recent new changes to the Federal Rules of Civil Procedure which took effect December 1, 2015, changes to the Georgia Civil Practice Act have been proposed as part of currently pending legislation, HB 1017. The changes are largely being touted as updating the code sections for e-discovery. However while there are many minor changes which simply insert the phrase “electronically stored information” into existing rules which contemplate the discovery and/or production of documents or similar items, there are several changes which go beyond just electronic discovery.
One of the biggest changes is contained in O.C.G.A. § 9-11-26(5) Claiming Privilege or Protecting Trial Preparation Materials. Unlike the changes to Federal Rule of Civil Procedure (FRCP) 26 which provides for a consideration of the proportionality of the discovery sought in relation to the scope of discovery, the proposed Georgia rule includes the proportionality only in the section related protective orders. The other changes to this section also include an increased burden on notifying an opposing party when information is being withheld based on privilege or if information which is produced is subject to a claim of privilege or protection.
The proposed changes to O.C.G.A. § 9-11-34 also follow those of FRCP 34 with respect to production of documents and electronically stored information. The proposed statutory section, like the Federal Rule provides that in responses to requests for production or inspection: “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” (Proposed change to O.C.G.A. § 9-11-34(b)(2)(B).).
Likewise proposed changes to O.C.G.A. § 9-11-34(b)(2)(C) regarding objections provides, like the new FRCP 34 that: “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.”
The last major change in the pending legislation is to O.C.G.A. §9-11-37(e) which governs failure to make discovery. The proposed change tracks some of the new FRCP 37(e) with respect to the duty to preserve electronically stored information but deviates with respect to the section related to findings of the court related to spoliation or failure to preserve the evidence, although the proposed language does not use the term spoliation.
“If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, and the Court finds that there is prejudice to another party from the loss of the information:
(1) The Court may order measures no greater than necessary to cure the prejudice;
(2) If measures are insufficient to cure the prejudice, and further considering the practical importance of the evidence and whether the party who failed to preserve acted in good or bad faith the Court may instruct the jury that it may presume the information was unfavorable to the party; or
(3) Upon finding the party who failed to preserve acted with intent to deprive potential litigants of the information’s use in litigation or to avoid civil, administrative, regulatory or criminal sanctions or penalties, may:
a. Instruct the jury that it shall presume the information was unfavorable to the party; or
b. Strike the party’s claims or defenses, dismiss the action or enter a default judgment.
(4) Any party or the Court may request a hearing. Upon the request of a party, the Court shall in its ruling make findings of fact and conclusions of law.”
As the proposed legislation is still pending it’s unclear if it will pass as it is now or if changes will be made. Likewise the FRCP changes only recently having gone into effect the impact of the changes is as yet unknown. With the prevalence and only increasing amount of information being used and maintained electronically like the changes to the FRCP this proposed legislation seeks to both seek to limit unnecessary or excessive discovery with the proportionality requirement while also emphasizing the need for parties to take reasonable steps to preserve that growing amount of electronic information in today’s world.
Lara P. Percifield