BY ALYSSA BASKAMIt’s go time. You’ve filed your case. You served discovery with the complaint. You are ready to move. Forty-five days pass and you receive in response—Defendant will produce responsive requests subject to a protective order.
Most trial lawyers have received this response and felt their case’s momentum dwindle as they begrudgingly negotiate protective order provisions. It is easy to believe you have no bargaining power when the other side refuses to produce responsive documents until that protective order is inked.
However, O.C.G.A. § 9-11-26(c) on its face and the case law applying it work to limit their use and breadth of protective orders. Here are some ways to use those to your advantage.
“Upon motion by a party or by the person from whom discovery is sought and for good cause shown, the court in which the action is pending or, alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . .”
O.C.G.A. § 9-11-26(C) REQUIRES A TIMELY MOTION
Defendants regularly insist on protective orders before properly responding to discovery requests. However, Georgia law makes clear that if a party does not respond to discovery requests and does not file a motion for protective order, their inadequate discovery responses will not be excused under Georgia law. See e.g. Georgia Cash Am., Inc. v. Strong, 286 Ga. App. 405, 411–15 (2007) (“A party’s failure to comply with discovery will not be excused on the ground that the discovery sought is objectionable unless the party applied for a protective order under OCGA § 9–11–26(c).”). (physical precedent only)
As stated by Judge Wayne M. Purdom, the proper time to file a motion is before discovery is due. See Ga Civil Discovery § 4.8_ “[t]he timing of the motion for a protective order is important. The motion must be filed before the due date for the discovery or the date that the deposition is to be taken, and not afterwards. If the discovering party files a motion to compel, the responding party cannot then seek a protective order. A motion for a protective order filed after the court rules on the motion to compel should not be granted. See also Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 745-46 (1987) (upholding trial court’s finding that appellant waived its right to object to producing documents by failing to raise objections before the production deadline).
Thus, one way to make O.C.G.A. § 9-11-26(c) work for you is as a negotiation deadline. Instead of getting pulled into a long back-and-forth over the provisions of a protective order – one which commonly involves several weeks of “waiting to hear from the client” – send a 6.4(b) letter to make sure defense counsel knows that their client’s desire for a protective order does not relieve them of their obligations to respond to discovery – they will need to negotiate quickly or run afoul of the Civil Practice Act. If they delay, seek sanctions for their failure to respond to discovery requests.
And, if you seek sanctions, consider O.C.G.A. § 9-11-37(d). Pursuant to O.C.G.A. § 9-11-37(d), one who fails to comply with standard discovery requests may be subject to any of the sanctions listed in O.C.G.A. § 9-11-37(b)(2)(A) through (b)(2)(C); or reasonable expenses, including attorney’s fees. O.C.G.A. § 9-11-37(d) specifically does not allow parties to be excused for failing to act on the ground that the discovery sought is objectionable, “unless the party failing to act has applied for a protective order as provided by subsection (c) of Code Section 9-11-26.” Further, “an evasive or incomplete answer is to be treated as a failure to answer.” O.C.G.A. § 9-11-37(c).
O.C.G.A. § 9-11-26(C) REQUIRES GOOD CAUSE SHOWN
Assuming next that the opposing party does file a timely motion for protective order, they still have the burden of showing good cause. “[W]ithout substantial evidence that bad faith or harassment motivates the discoveror’s action, the court should not intervene to limit or prohibit the scope of pretrial discovery.” Bullard v. Ewing, 158 Ga. App. 287, 291 (1981) (citing “Intl. Ser. Ins. Co. v. Bowen, 130 Ga. App. 140, 144 (1973). Accord, Young v. Jones, 149 Ga. App. 819, 825 (1979) (“Good cause for the issuance of a protective order designed to frustrate discovery must be clearly demonstrated. Such cause necessarily is not established by stereotyped or conclusional statements, bereft of facts.”) (internal citation omitted). Keep this burden in mind as you negotiate a protective order or respond to a motion for protective order – if they cannot demonstrate good cause, courts will not enter a protective order.
Along the same lines, be on guard against provisions that would shift that burden to you, such as “contest” provisions requiring the plaintiff to show why a document should not be confidential under the order instead of requiring the defendant to show why a document should be confidential. The burden is theirs, not yours.
SCOPE – “WHAT JUSTICE REQUIRES”
Georgia law limits the permissible scope of protective orders – they must not frustrate or prevent legitimate discovery. See Mead Corp. v. Masterack, 243 Ga. 213, 215 (1979) (“OCGA § 9-11-26(c) does establish a general statutory basis for the entry of protective orders limiting or curtailing discovery under appropriate circumstances, provided such limitations do not have the effect of frustrating and preventing legitimate discovery.” ); Karp v. Friedman, Alpren & Green, 148 Ga. App. 204, 206 (1978) (“[p]rotective orders should not be entered when the effect is to frustrate and prevent legitimate discovery.”); Deloitte Haskins & Sells v. Green, 187 Ga. App. 376, 378 (1988) (Protective orders should be “protective – not prohibitive.”).
Courts hold broad discretion to determine whether a protective order is “actually necessary” as well as the terms of any such order. Fulton Cnty. Bd. Of Assessors v. Saks Fifth Ave., Inc., 248 Ga. App. 836, 842 (2001). However, if a protective order is found to frustrate or prevent legitimate discovery, as the Court of Appeals found in Mead Corp., then a trial court’s granting such an order is an abuse of discretion. Mead Corp., 243 Ga. at 214.
Thus, whether negotiating or responding to a motion for protective order, always keep in mind whether the defendant’s desired provisions go beyond O.C.G.A. § 9-11-26(c).
For example, defendants frequently attempt to expand the scope of O.C.G.A. § 9-11-26(c) with respect to trade secrets. In Georgia, a “trade secret” is information that “is not commonly known or available to the public,” which “[d]erives economic value, actual or potential, from not being generally known,” and “[i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” O.C.G.A. § 10-1-761(4). If there does not “appear to be any element of secrecy or confidential information that is pecul[i]ar to the [defendant’s] business and known only to it and its employees,” there is no trade secret. See e.g. Taylor Freezer Sales Co., Inc. v. Sweden Freezer E. Corp., 224 Ga. 160, 164-65 (1986). Be wary of defense attempts to broaden what a “trade secret” is within the terms of the order itself, or by inaccurately labeling documents as trade secrets.
Also, watch out for any protective order that would limit document sharing. It has been widely established that protective orders should permit document sharing, particularly for similar cases, because it promotes speedy, efficient, and inexpensive litigation, levels the playing field between plaintiffs and defendants, promotes full disclosure of discoverable materials, and promotes judicial economy. See e.g. Kamp Implement Co., Inc. v. J.I. Case Co., 630 F. Supp. 218, 219 (D. Mont. 1986); Wolhar v. General Motors Corp., 712 A.2d 464, 467 (Del. 1997); Grange Mut. Ins. Co. v. Trude, 151 S.W. 3d 803, 814 (Ky. 2004); Burlington City Bd. of Educ. v. United States Mineral Prod. Co., Inc., 115 F.R.D. 188, 190 (M.D.N.C. 1987); Raymond Handling Concepts Corp. v. Superior Court, 39 Cal. App. 4th 584, 591 (1995). Georgia courts have equally permitted sharing orders. See e.g. Ahrendt v. Home Depot U.S.A., Inc., Civil Action File No. 11-A-4554-A, State Court of Cobb County.
With so many benefits recognized, push back when a defendant tries to avoid document sharing – make them try explaining to the court why preventing this efficient, economical, fair discovery practice is “actually necessary.”
Whether in responding to a motion for protective order, or in trying to avoid attempts to seize and slow your case through protective order negotiations, never forget that defendants are not entitled to protective orders under O.C.G.A. § 9-11-26(c). Instead, it is their burden to prove one should be entered, and to demonstrate the value of each provision requested. ●
Alyssa Baskam is an associate attorney with Butler Tobin. Alyssa specializes in the practice areas of catastrophic personal injury, wrongful death, and sexual assault. She has worked on a number of cases tried to verdict since she began practicing, and has experience in every stage of litigation. Alyssa is a graduate of UNC Chapel Hill and Emory University School of Law.
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