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By: Bart Gary
On June 18, 2013, the Georgia Court of Appeals decided a case involving electronic discovery. In a business dispute, and in response to about 100 unique requests for production of documents from the plaintiff, defendants scanned all paper documents in their files in the form and order in which they were keep in the file cabinets; and extracted electronic documents from hard drives and messages from the email accounts. The documents “were processed into images” and Bates-stamped in the order they were found. The defendants then produced the about 156,000 pages of documents in digital format. In response to plaintiff’s motion to compel, the trial court order the defendants “to designate by Bates-stamp number each document responsive to each request for production served on each defendant.” It rejected the defendants’ argument that it satisfied the discovery rules by having produced documents as they were kept in the ordinary course of business. The Court of Appeals refused to disturb the trial court’s discretion and affirmed the order. The decision imposes a substantial burden upon the defendants in document-intensive cases. Ordinarily it is sufficient for a party to produce documents in the form and manner in which they are and were maintained. The Court of Appeals also affirmed the trial court’s sanctions, plaintiff’s attorney’s fees, imposed on defendants for failing to act in good faith in designating documents “highly confidential,” that did not meet the criteria of the protective order. Eighty percent (80%) of the documents produced were so designated.