Georgia Appeals Court Considers Proper Form of Document Production and Confidentiality

29 Jul 2013

Proprietary issues in business litigation can sometimes result in disputes regarding confidentially and discovery production. In the state court case Hull, et al. v. WTI, Inc., A13A0003 (Ga.Ct.App. June 18, 2013), the Court of Appeals in Georgia took up an interlocutory appeal regarding sanctions imposed on defendants for the trial court’s finding of discovery abuses.

The underlying court case involved complex business litigation, and as such, there was concern about the release of confidential, proprietary business information.  To remedy this problem, the court entered a detailed, 12 page stipulated protective order that the parties could designate documents “confidential,” or “highly confidential.” Documents deemed “highly confidential” could only be viewed by the attorneys, not their clients. This has the potential to be extremely burdensome, as the attorneys could not have their clients assist them in the review of these “highly confidential” documents. After receiving plaintiff’s document requests, the defendants produced over 156,000 pages in disarray, of which 95 percent of the pages were labeled “highly confidential.”

After unsuccessful attempts to resolve the issue, plaintiff filed a motion for sanctions. At the hearing, plaintiff trial attorneys pointed out some examples of documents that were labeled “highly confidential,” but did not meet that description. Defendants reclassified those documents at the hearing, so about 83 percent of the remaining documents were labeled “highly confidential.”

The mislabeling was not the only problem with this defense production. Plaintiff characterized the production as a “document dump,” that was unorganized and was not labeled to coordinate with the categories in the discovery requests. The defendants claimed that the production was rendered in the usual course of business, as allowed in Fed.R.Civ.P. 34(b)(2)(E). Although this is a state case, Georgia courts base their rules on the federal rules and case law dictates that in Georgia courts may properly consider the federal courts’ construction of the rules. Barnum v. Coastal Health Svcs., 288 Ga. App.209, 215 (2007).

So does the unorganized “document dump” violate Georgia Civil Procedure or the federal rules? Will the appeals court agree with the trial court that labeling 83 percent of documents as “highly confidential” to be abusive? More on Hull v. WTI in our next blog.

ILS – Plaintiff eDiscovery Experts