Electronic Discovery in a Georgia Divorce or Georgia Civil Case
What is E-Discovery?
Broadly, e-discovery is the process by which electronic data is sought, searched, located, and ultimately produced for use as evidence in court. Attorneys use e-discovery to obtain documents, audio or video files, photographs, etc. that are stored on computer components in a format that can be used in court - a tangible item that can be marked as an exhibit, authenticated, and shown to a judge or jury.
Georgia Electronic Discovery Rules / Challenge of Transparency:
Georgia does not have a specific electronic discovery statute, and there are limited Georgia cases addressing e-discovery, unlike in the federal context. Unfortunately for requesting parties, under Georgia law, the producing party can insist that they handle the search and initial production of requested e-discovery without oversight. Accordingly, the requesting party must propound technically sophisticated and detailed electronic discovery. Please contact Atlanta Electronic Discovery Attorney Russell Hippe on how to obtain electronic discovery in a Georgia divorce or civil case.
What is Electronically Stored Information?
Electronically stored information ("ESI") includes emails, word processing files, accounting files, spreadsheets, voice mails (if stored electronically), program files, backup and archival files and tapes, system history files, web site files, browser history files, audio and video files, photographs, web log files, cache files, cookies, metadata, organic and native data, electronic calendars, activity logs, etc. Meta or native data is "data about data".
How is E-Discovery Requested?
In Georgia, e-discovery is requested under the basic party document production statute - O.C.G.A. section 9-11-34. Under O.C.G.A. section 9-11-34(a), ESI can be obtained by making a request for the production of this data in tangible format by referencing the ESI as any "data compilation" contained on any computer hard drive, network server, PDAs or tablet, etc in the producing party's custody or control.
Additionally, although in Georgia the requesting party does not have the right to conduct the actual search of the responding party's data storage components, at least not initially, if the requesting party can make a showing that the producing party has not produced ESI in good faith, the requesting party can move to obtain a direct inspection of specific components.
Accordingly, to secure ESI, your e-discovery requests must be detailed. You should request: (1) the specific ESI you want; (2) the identification of any components that house any relevant electronic data - desktop hard drives, workstations, network servers, lap top computers, tablets, PDAs etc. by make, model, serial number, and physical location; (3) id of the specific software packages, versions, and applications in use; (4) that specific "key word" and date search parameters for the ESI search be used; (5) id of all individuals / technicians involved in the search (for possible deposition later); and (6) the production of exact "mirror image" copies of the full hard dives of all components requested for identification, as well as the right to inspect these components, in case a showing for a direct inspection can later be made.
Further, in your request, you should state how you would like the production to be made (tangible paper, pdf files, tiff files, etc.). The responding party is required to "translate" the data into a reasonably usable form that you can use it in court.
Consider Whether Your Client Can Legally Scan and Image E-Data Prior to Filing
In business cases, the parties ordinarily do not have physical access to the opponent’s computer components. This is not true in domestic cases. Spouses typically have physical access to marital property, specifically to their partner’s personal computers and electronic devices. In Atlanta, it is customary for domestic lawyers to advise their clients that they can secure an image of the hard drive of any marital property, such as a family pc in the marital residence or a personal laptop purchased by a spouse during the marriage.
Unfortunately, there is no Georgia case that specifically addresses whether evidence obtained in this manner is admissible.
Make the Earliest Possible Non-Spoliation Demand Concerning Electronic Data
Anytime a party is seeking to obtain ESI, at the earliest possible time, a “Non-Spoliation” demand for the preservation of all electronic data and messages should be issued. This is a demand that the opposing party preserve all electronic evidence and not delete, discard, or destroy any electronic data or messages. See, O.C.G.A. section 24-14-22.
Prior to Serving E-Discovery, Consult or Retain an Expert
If e-discovery is going to be critical, it is important to consult or retain an expert to assist with detailed and narrowly tailored interrogatory and production requests to make it as difficult as possible for the producing party to omit production of incriminating evidence or obstruct e-discovery.
If you case is one where sophisticated e-discovery will be required, you should contact Atlanta divorce attorney Russell Hippe.