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Proposed E-discovery Rules Move Forward

GTLA expresses concerns over bill's creation of "obstacles"

, Daily Report

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Rocco Testani, a partner at Sutherland Asbill & Brennan, says the standards set forth in the proposed legislation are modeled after federal advisory committee recommendations.
Rocco Testani, a partner at Sutherland Asbill & Brennan, says the standards set forth in the proposed legislation are modeled after federal advisory committee recommendations.

Opposing sides are closer to a consensus on proposed state legislation regulating e-discovery that will be taken up by the House Judiciary Committee this month, but sticking points remain, particularly on sanctions for spoliation of electronic documents.

A group of judges, trial lawyers and defense attorneys called together by House Judiciary Committee Chairman Wendell Willard, R-Sandy Springs, met twice this fall to hash out a bill filed late in the 2013 session. The bill sprung from recommendations made last year by a State Bar of Georgia task force on e-discovery. Willard said he expects to file an amended version of House Bill 643 soon after the new session begins on Jan. 13.

"I listened to everyone's concerns, and we'll try to address them the best we can," said Willard, the city attorney for Sandy Springs. Willard said he believes the only major area of discord that will come up during committee hearings revolves around a safe harbor provision that defines what actions constitute bad faith or willful misconduct when it comes to preserving discoverable electronic records.

The bar's task force recommended factors for courts to consider when deciding on sanctions. These were included in the current version of the bill:

• The extent to which the party was on notice that litigation was likely and that the information would be discoverable.

• The reasonableness of the party's efforts to preserve the information, including the use of a litigation hold and the scope of the preservation efforts.

• The clarity and reasonableness of the request to preserve discoverable information.

• Whether the party receiving a request to preserve information and the person who made such request engaged in good faith consultation regarding the scope of preservation.

• The party's resources and sophistication in litigation.

• The proportionality of the preservation efforts to any anticipated or ongoing litigation; Whether a party is able to specify the information that was not preserved.

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