Plaintiff Awarded Fees for Unorganized and Misclassified Defense Production
In our last blog, we began a discussion of the state court case Hull et al. v. WTI, Inc., A13A0003 (Ga.Ct.App. June 18, 2013). In this complex business litigation case, the defendants produced 156,000 documents that the plaintiffs characterized as unorganized and a violation of defendant’s discovery duties. Additionally, the defendant’s characterized 83 percent of documents to be “highly confidential” per a protective order, meaning only the attorneys, not the parties, could view the documents.
The trial court entered a sanctions order for discovery abuse against defendants, including $7,500 paid to plaintiff trial lawyers for abusing the “highly confidential” label and for the unorganized production. The defendants appealed the interlocutory order. The first argument was:
1. The trial court erred in ordering the defense production documents be designated as responsive to each plaintiff discovery request.
The trial court had ordered the defendants to designate with a Bates-stamp number which documents were responsive to each request. The defendants argued that their production was organized as kept in the “usual course of business” as allowed in Fed.R.Civ.P. 34. The appeals court noted it was proper to look to the federal rules. However, the appeals court noted that just because the court could have found the production sufficient, it was within its permitted discretion to determine it was insufficient under the rules. Additionally, since the defendants had to review all the documents to determine whether the “highly confidential” label was accurate, it was not a huge burden to order that the production be labeled to identify which documents corresponded with the requests.
2. The trial court erred in awarding attorney fees to plaintiff.
The court noted a discrepancy in the defendants’ arguments. As defendants did not appeal the finding that they acted in bad faith regarding the mislabeling of the “highly confidential” documents, they cannot concurrently argue they were justified in opposing the resulting motion to compel. The finding of bad faith justified the attorney fee award. Finally, the court noted the award of $7,500 was only half of the attorney fees plaintiff incurred in pursing the motion. The appeals court affirmed the trial court’s order.