Georgia's Approach to Proportionality and Sanctions for the Spoliation of Electronically Stored Information

• Publication year: 2021

Georgia's Approach to Proportionality and Sanctions for the Spoliation of Electronically Stored Information

Matthew Daigle
mdaigle1@student.gsu.edu

[Page 603]

GEORGIA'S APPROACH TO PROPORTIONALITY AND SANCTIONS FOR THE SPOLIATION OF ELECTRONICALLY STORED INFORMATION

Matthew C. Daigle^*

Abstract

The rapid evolution and implementation of technology in society has resulted in the increasing use of data as evidence in court. While the scope of discovery is limited by, among other things, the burden imposed on the producing party, the sheer magnitude of electronic evidence compared to its physical counterpart necessitates a different framework for evaluating such a burden. Without limiting factors, the discoverability of electronically stored information (ESI) exposes producing parties to liability disproportionate to the value of a case. While the Federal Rules of Civil Procedure have evolved to address the discovery of ESI, the Georgia Civil Practice Act has remained largely stagnant, requiring judges to retrofit existing case law governing physical evidence to include ESI. This Note examines Georgia's approach to the discovery of electronic evidence and proposes changes to modernize the state's approach to eDiscovery.

[Page 604]

CONTENTS

Introduction................................................................................605

I. Background............................................................................607

A. Proportionality Under Rule 26(b)......................................608

1. Duty to Preserve...........................................................608
2. Reasonable Preservation Measures..............................610
3. Proportionality in Production......................................610

B. Preservation Sanctions: Addressing Spoliation Under Rule 37(e)....................................................................................611

1. Were Reasonable Steps Taken to Preserve ESI?..........612
2. Was the Non-Producing Party Prejudiced by the Loss of Information?.................................................................613
3. Did the Producing Party Intend to Deprive a Party of the Information in Litigation?............................................614

II. Analysis..................................................................................616

A. Comparison of the Georgia State and Federal Rules.........616

1. Scope of Discovery........................................................617
2. A llocation of Discovery Costs.......................................618
3. Means of Production.....................................................619
4. Failure to Make Discovery and Sanctions....................620

B. Georgia's Spoliation Approach..........................................620

1. Spoliation Framework .................................................. 621
2. Remedies to Spoliation Available in Georgia...............624

III. Proposal..................................................................................626

A. Conceptual Changes to Georgia's Discovery Procedure... 626

1. Georgia Must Explicitly State the Role Proportionality Plays in the Discovery of ESI.......................................626
2. Georgia Should Adopt the Two-Tiered Approach to Sanctions Established in Federal Rule of Civil Procedure 37(e) .............................................................................. 628

B. Implementing Changes to Georgia Law ............................. 629

1. Legislation to Modernize the Civil Practice Act...........629
2. Promulgation of Uniform Rules by the Supreme Court of Georgia ......................................................................... 631

Conclusion...................................................................................634

[Page 605]

Introduction

The epoch of big data and the utilization of emerging technologies give rise to new litigation practices surrounding the discovery and use of electronically stored information (ESI).¹ Particularly in Georgia, a rapidly evolving hub for technology and innovation, the procedures governing the discovery of ESI struggle to keep up with the developments.² The current laws provide little distinction between physical evidence and electronically stored data, leaving parties at risk of unintended consequences where best practices around these two types of evidence diverge.³

Electronic discovery (eDiscovery), "[t]he process of identifying, locating, preserving, collecting, preparing, reviewing, and producing [ESI] in the context of the legal process," began as a nuanced aspect of complex litigation surrounding large corporations with massive amounts of data but is slowly making its way into smaller cases across the judicial system.⁴ These changes in technology and its use

[Page 606]

in court implicate ethical obligations for attorneys who are required to zealously advocate for their clients.⁵

Data and its corresponding metadata provide searchable information that enable a party to learn more about electronic files and their origins.⁶ Metadata, data about data, include descriptive, structural, administrative, or reference data relating to a particular file—information that may be useful in pending litigation.⁷ For example, the metadata for an image file might include the time the photo was taken, the device it was taken on, and, in some cases, the GPS location where the photo was taken.⁸ But failure to properly preserve and collect this kind of digital evidence to avoid spoliation can impair, if not eliminate, its utility.⁹ The Sedona Conference—a research group comprised of practicing lawyers from both the plaintiffs' and defense bar, judges, and academics seeking to advance legal study surrounding litigation and technology—defines spoliation

[Page 607]

as "the destruction of records or properties, such as metadata, that may be relevant to ongoing or anticipated litigation, government investigation or audit."¹⁰

This Note evaluates the state of eDiscovery in Georgia in comparison to federal law on the subject. Part I examines the current body of federal law surrounding eDiscovery. Part II analyzes the application and implementation of Georgia's standards in court, addresses significant differences between state and federal laws, and identifies current barriers to the advancement and expansion of the law. Part III proposes alterations to Title 9 of the Official Code of Georgia Annotated (Code) that would modernize Georgia's rules of civil practice in the age of big data.

I. Background

EDiscovery, as a body of evidentiary case law distinct from that controlling physical evidence, emerged with the new millennium and evolved over the subsequent decade.¹¹ The 2006 and 2015 amendments to the Federal Rules of civil Procedure (FRcP) further shaped the discovery of ESI in the federal court system by codifying rules that distinguish data from other forms of evidence.¹² The amendments impacted the "scope, speed and specificity" of a party's obligations in discovery, particularly by establishing guidance for proportionality and preservation standards.¹³

[Page 608]

A. Proportionality Under Rule 26(b)

An overarching principle of proportionality guides the discovery of evidence; however, the sheer magnitude of existing data underscores the particularly important role in its application to ESI.¹⁴ Rule 26(b)(1) balances the burdens of production with the benefits the evidence would provide at trial.¹⁵ The proportionality standard of Rule 26(b) governs both the extent of the evidence that a party must preserve and the scope of production.¹⁶

1. Duty to Preserve

The duty to preserve evidence arises from a common-law duty, supplemented by the propagation of the FRCP.¹⁷ Though Rule 26(b) limits the scope of discovery, it creates an affirmative obligation to preserve evidence relevant either to pending litigation or a reasonably foreseeable future lawsuit.¹⁸ Producing parties need not preserve every document that may be discoverable; rather, they must show a good faith effort relative to the magnitude of the case at hand.¹⁹

[Page 609]

Compliance with the preservation obligation requires a determination of when the duty to preserve took effect and of the scope of evidence it may cover.²⁰

Most often, notice of a lawsuit triggers a party's preservation obligation.²¹ However, the duty arises "not only during litigation but extends" to the period before litigation when a party should reasonably know that the evidence may be relevant to anticipated litigation.²² As such, a party's reasonable expectation of a pending lawsuit triggers a producing party's common-law obligation to refrain from the destruction of relevant evidence and affirmative statutory obligation to preserve information and data that may be sought in litigation.²³

Must a producing party perfectly preserve all data? Once pending litigation triggers the preservation obligation, a party must preserve that which is reasonable and proportionate in light of litigation.²⁴ The 2015 amendments narrowed the interpretation of "relevance" by removing key phrases from the text of the rule that otherwise allowed

[Page 610]

discovery of information related to "the subject matter involved in the action" and that which appears "reasonably calculated to lead to the discovery of admissible evidence."²⁵ In the context of ESI, the language intended to mollify concerns of discovery abuse surrounding high-volume data by curtailing the scope of what a party can request.²⁶

2. Reasonable Preservation Measures

Recognizing the near impossibility of perfect preservation, the law only requires a preserving party demonstrate good-faith, reasonable steps to preserve ESI.²⁷ Reasonable preservation measures balance an entity's duty to preserve with its need to minimize disruption and continue operating.²⁸ Practices such as identifying relevant custodians and implementing legal holds tend to weigh in favor of a good faith determination, though the final...