Bill on Electronic Discovery Expected to Increase Costs, Burdens for Litigants

House Bill 1017, sponsored by Barry Fleming (R-Harlem), was proposed legislation governing the discovery process in civil litigation. The bill addresses electronic discovery, but will increase costs and burdens of all kinds of discovery for all litigants. Although ultimately endorsed by the Georgia Bar, the bill contains provisions strongly opposed by over 40 leading Georgia companies, significant portions of the Georgia Bar, the Georgia Chamber and other like-minded trade associations.

The beneficiaries of this proposed legislation are personal injury lawyers who seek to weaponize discovery by imposing overly-broad preservation and production obligations, without consideration of “proportionality”””i.e., the amount at stake in the litigation or the costs of such requirements.”¯ This concept of “proportionality” ensures that litigants don’t spend $100,000 preserving, collecting and producing documents in a case with $10,000 at stake. The bill affirmatively rejects the common sense approach of proportionality, even though it was recently reemphasized by new Federal Rules of Civil Procedure which were enacted in December of 2015 after five years of debate, public comment and compromise from a wide array of participants representing all viewpoints. This bill means Georgia would be bucking the consensus trend and become the first state to reject these recent reforms in favor of a unique-to-Georgia set of rules.

The legislation also departs from the new Federal Rules in that case-determinative sanctions can be imposed for negligent discovery mishaps rather than requiring a court to find proof of intentional misconduct.

By rejecting proportionality and embracing a low bar for severe sanctions, the bill will force businesses to settle cases to avoid the costs of defending a lawsuit regardless of the merits of the case. If HB 1017 is passed, Georgia will be alone in affirmatively acting to make discovery more expensive and time-consuming, ultimately impacting the state’s ability to attract and develop industry.

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