A Guide to Winning Your Ediscovery Dispute and Teaching the Judge Along the Way

• Citation: Vol. 30 No. 4 Pg. 0022
• Year: 2025
• Pages: 0022

A Guide to Winning Your eDiscovery Dispute and Teaching the Judge Along the Way No. Vol. 30 No. 4 Pg. 22 Georgia Bar Journal May 2025

Attorneys who educate the judge, seek common sense solutions and make a case for the “need” for discovery are more likely to win their eDiscovery dispute.

BY HON. JANE P. MANNING

Imagine walking into a college test at the end of a semester. Over the course of the class, you realize that your textbook is about 50 years old. You do not have a professor. You have two study partners who are knowledgeable about the subject but rarely agree on much. You would like to do some research to learn more about the subject, but you are prohibited by the Student Code of Conduct to do independent research. Surprisingly, a lot is riding on your answers to the test. Your test has been selected to justify a SI million dollar grant for your college. If your answers are correct, your college gets the money. If your answers are incorrect, the college must lay off 100 people.

Welcome to being a judge in an eDiscovery dispute.

Despite ever evolving technologies which house discoverable material, the Georgia Civil Practice Act has not changed much since its adoption in 1972.^[1]On the other hand, the Federal Rules of Civil Procedure have twice been amended so far in this century. Some changes addressed issues with eDiscovery—namely providing for a proportionality analysis and cost-sharing.^[2] As such, Georgia judges have fewer "tools in their toolbox" than their federal counterparts.

Because the Georgia judicial code of ethics prohibits judges conducting their own research, Georgia judges are hampered in their quest to "get it right" with evolving technologies.^[3] For example, a judge could not watch a YouTube video on how to retrieve deleted emails. And it is likely that your judge is not an IT genius. This creates a golden opportunity for attorneys to educate the judge about technology when confronted with a dispute.

In addition to educating the judge, attorneys should be prepared to argue relevancy and proportionality, and to make common sense recommendations. Victories in eDiscovery disputes will come to the attorney who is well-prepared and who works to make the judge's job easier.

How Do You Make the Judge's Life Easier?

Know Your Audience

It is important to know who is sitting on the bench. The judge's prior experience may give you clues as to their level of expertise in eDiscovery. Many judges were previously government lawyers. A former prosecutor may have little familiarity with civil discovery disputes. However, a lawyer who worked for the state Attorney General's Office or the local County Attorney's Office may have extensive experience in civil litigation. Of course, it is always a good idea to review the judge's standing order which may contain eDiscovery protocols. Many judges prefer a conference call before the filing of discovery motions. And, you can always ask your fellow attorneys if they know of the judge's previous rulings and pet peeves.

Be Proactive

Communicate with the judge before you file your motion. Even if a standing order does not compel it, see if you can get a conference call before filing a motion for contempt or protective order. In lieu of a conference call, you may give the judge a heads up on the dispute by sending an email (no more than two printed pages) to the judge outlining the problem. Of course, copy all counsel. It is even better if the parties send a joint email distilling the issues.

Narrow Your Areas of Disagreement

Cooperation is appreciated. Engage in give-and-take with your opposing counsel and leave the tough decisions up to the judge. If you are dealing with uncooperative opposing counsel, show the judge that you are not the one being disagreeable. That means being professional in all

your correspondence. Copy the judge on snarky emails at your own peril.

Be Prepared to Educate the Judge on the Platform

How is this platform like another platform? How is it unique? How have other judges handled similar disputes? Always try to be the one with the commonsense solution. With the rule that judges...