Electronic Discovery in Georgia: Bringing the State Out of the Typewriter Age

• Publication year: 2010

Georgia State University Law Review

Volume 26 . „

Article 2

Issue 2 Winter 2009

3-21-2012

Electronic Discovery in Georgia: Bringing the State Out of the Typewriter Age

Kevin Bradberry

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Recommended Citation

Bradberry, Kevin (2009) "Electronic Discovery in Georgia: Bringing the State Out of the Typewriter Age," Georgia State University Law Review: Vol. 26: Iss. 2, Article 2.

Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss2/2

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ELECTRONIC DISCOVERY IN GEORGIA: BRINGING THE STATE OUT OF THE TYPEWRITER AGE

Kevin Bradberry *

Introduction

On August 12, 2008, U.S. Magistrate Judge Laporte of the U.S. Northern District of California imposed hundreds of thousands of dollars in sanctions on a party who failed to preserve certain electronically stored documents.¹ Not only did the judge set record high fines, but she also ordered an adverse jury instruction at the trial.² Earlier that year in Qualcomm v. Broadcom, another judge meted out an eight-and-a-half million dollar sanction against a party and its attorneys for failure to use "crucial search terms" in retrieving electronic documents.³ Although technology has changed, those changes have not altered the duty of counsel to satisfy discovery obligations.

"It is refreshing to be able to cite authorities from the last century . . . and to experience the rare and unusual assurance that... the law changes slowly or not at all."⁴ Nonetheless, old rules that have served

* J.D. Candidate, 2010, Georgia State University College of Law. He thanks his family and friends for their love and support, and thanks the editors of the Georgia State University Law Review for this opportunity.

1. David Narkiewicz, E-Discovery: The Essentials, 30-DEC Pa. Law. 18,19 (2008) (citing Keithley v. Homestore.com, Inc., No. C-03-04447 SI (EDL), 2008 WL 3833384 (N.D. Cal. Aug. 12, 2008)). Although the adverse jury instruction was later overturned, this case illustrates the wide variety of tools judges have at their disposal to punish negligent parties. See Keithley v. Homestore.com, Inc., No. C-03-04447 SI (EDL), 2008 WL 4830752, at *4 (N.D. Cal. Nov. 6,2008).

2. Narkiewicz, supra note 1, at 19 (citing Keithley v. Homestore.com, Inc., No. C-03-04447 SI (EDL), 2008 WL 3833384 (N.D. Cal. Aug. 12,2008).

3. Laura Lewis Owens & Anna A. Summer, Discovery About Discovery, 783 PLl/Lrr 343, 347 (2008). Missing search terms were not the only omissions Qualcomm made—the court found that Qualcomm failed to perform basic searches, did not search the computers of the most relevant employees, and did not attempt to correct its mistake once it knew the searches had been inadequate. Thus, the court concluded that Qualcomm "intentionally withheld tens of thousands of decisive documents from its opponent in an effort to win this case." Id. at 347-48 (citing Qualcomm, Inc. v. Broadcom Corp., No. 05cvl958-B (BLM), 2008 WL 66932, at *9 (S.D. Cal. Jan. 7,2008).

4. Jay E. Grenig & William C. Gleisner, m, l eDiscovery & Digital Evidence § 1:2 (2007) (citing Quick v. State, 569 So. 2d 1197, 1199 (Miss. 1990)).

551

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the community for some time must now adapt to new technology, producing a less than seamless transition.⁵ The advent of the Digital Age and the widespread use of computers for document processing, information storage, and analytical computing present one such area of difficulty.⁶ In a world populated by people who still remember (and sometimes prefer) the use of typewriters and slide rules, computerized information confronts litigation attorneys with difficult and expensive questions about what information is discoverable, what should be protected, and what digital information is completely irrelevant. This problem is exacerbated for attorneys practicing within Georgia because the state has made little or no effort toward adopting comprehensive electronic discovery (e-discovery) rules.

The purpose of this Note is to assist lawmakers in building a template for addressing the arising issues with electronic discovery. Part I of this Note contrasts the differences between conventional discovery and electronic discovery, highlights some of the difficulties that electronic documents present and explains why having a particularized set of rules is important.⁸ Part II discusses the various approaches adopted in pursuing comprehensive e-discovery guidelines,⁹ and Part III concludes that Georgia should adopt the 2006 e-discovery amendments to the Federal Rules of Civil Procedure with a few improvements and modifications.¹⁰

5. A potential cause of problems, for example, may arise from the fact that an estimated thirty-five percent of electronic documents have never been translated into a paper format. Martin H. Redish, Electronic Discovery and the Litigation Matrix, 51 DUKEL.J. 561, 591 (2001).

6. grenig & gleisner, supra note 4, § 1:2; Steven C. Bennett & Cecilia R. Dickson, E-Discovery May Be a Job for Special Masters, nat'l L.J., at S5 (July 17, 2006) (more than ninety percent of information is created and stored electronically); Nat'l Conference of Comm'rs on Unif. State Laws, Uniform Rules Relating to the Discovery of Electronically Stored Information (2007) [hereinafter uniform rules].

7. grenig & gleisner, supra note 4, § 1:3. Typical assumptions related to paper documents such as assuming that litigants know what information they possess, and counting on counsel to have the abilities to procure all that information are not always accurate in a digital world.

8. See discussion infra Part I.

9. See discussion infra Part n. 10. See discussion infra Part III.

2010] ELECTRONIC DISCOVERY IN GEORGIA 553

I. Why Adapt? Differences Between Conventional and Electronic Discovery

A. Comparative Differences

Considering society's increasing reliance on electronic documents and their consequent use in litigation, the need for a standardized set of rules is evident.¹¹ Differences arising from digital and conventional discovery are numerous but may be subdivided into

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three general categories: volume, retrieval, and translation. More specifically, e-discovery presents special problems due to differences in volume, dynamicism, dispersion, persistence, and environment/structure dependence.

1. Volume

Digital information may take the form of e-mails, word processing documents, spreadsheets, graphics, images, voice mail, electronic calendars, internet bookmarks, cookies, and history logs.¹⁴ Further increasing the amount of discoverable documents is the fact that

11. See David K. Isom, Electronic Discovery Primer forjudges, 2005 fed. CTS. L. Rev. 1, 6 (2005) ("The duties of lawyers to raise, negotiate and resolve discovery issues, and the need for courts to manage discovery actively, are more important for electronic discovery than they were for paper discovery."); grenig & gleisner, supra note 4, § 6:5 (citing Corinne L. Giacobbe, Allocating Discovery Costs in the Computer Age: Deciding Who Should Bear the Costs of Electronically Stored Data, 57 Wash. & Lee L. Rev. 257,258 (2000) (defendant who stored all materials potentially relevant to litigation incurred costs in excess of three million dollars responding to discovery requests)).

12. grenig & gleisner, supra note 4, at § 6:5; see also uniform rules, supra note 6, at 1 ("Principle among these differences is the sheer volume of information in electronic form, the virtually unlimited places where the information may appear, and the dynamic nature of the information.").

13. The Sedona Conference Working Group, The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production (2007), available at http://www.thesedonaconference.org/content/miscFiles/publications_html (follow 'TSC_PRJNCP_2nd_ed_607.pdf' hyperlink; then enter name and e-mail address to download) [hereinafter Sedona Principles (Second Edition)]. Environment/structure dependence refers to electronic data's coded format, without which the document may not be properly viewable.

14. grenig & Gleisner, supra note 4, § 1.2. For further discussion of how phones, faxes, and PDAs might have discoverable information in electronic discovery, see id. § 6:8 (citing michael R. arkfeld, Electronic Discovery and Evidence § 2.05[F] (2004) (noting that cell phones present another potential source of electronic information, especially considering that they store addresses, names, email information, conversations, calendars, and in the case of voice-mail, metadata about the caller and the length of the call)).

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many systems automatically save multiple copies of documents on digital backup tapes, several users may have copies of e-mails or reports, and users typically save documents on both a private and common drive.¹⁵ With the advent of digital technology and the widespread use of personal computers, personal communication devices, and digital storage systems, vastly more electronic documents exist than ever before, resulting in a significantly higher number of documents that attorneys may discover in preparation of litigation.¹⁶ For example, in 1998 the U.S. Postal Service processed only 1.98 billion pieces of hard copy mail, whereas electronic users managed to send an estimated 182.5 billion e-mails in that same year.¹⁷ With such copious amounts of information it is important that attorneys have clear rules governing discovery. Electronic data is also "dynamic" in that it is "designed to change

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over time even without human intervention." Data modification can occur...