328 Ga. App. 642
Ga. Ct. App.2014Background
- Coosawattee sued Agio and others alleging fraudulent transfers of resort lots to avoid homeowners’ association assessments; it sought to inspect electronic data on a shared office server and hard drives.
- Coosawattee served an OCGA § 9-11-34 inspection request seeking all computer systems, backups, and electronic data, including the shared server used by defendant Jerry Sewell.
- Agio and non-party Blanton Law Firm objected, asserting the shared server contains privileged and non-party data and proposing a neutral special master/forensic process or a firewall to isolate Agio data.
- Coosawattee’s expert opposed a firewall before imaging, arguing that installing one could destroy evidence; Coosawattee proposed forensics imaging (full copy) first, then sealing the copy and later erecting a firewall on the original.
- The trial court denied protective orders and ordered the defendants/non-parties to allow copying (full image) of the shared server/hard drives for preservation; appellants sought immediate interlocutory review.
Issues
| Issue | Plaintiff's Argument (Coosawattee) | Defendant's Argument (Agio / Blanton) | Held |
|---|---|---|---|
| Admissibility of firewall settlement discussion | Discussions about firewall show risk of evidence loss and justify imaging | Those settlement/compromise discussions are inadmissible under OCGA § 24-4-408 | Court did not rely on exclusionary rule; discussion occurred at hearing and was admissible for non-settlement purpose |
| Requirement to show "good cause" under OCGA § 9-11-34(c)(1) | Not applicable because Coosawattee did not move to compel under § 9-11-34(c)(1) | Trial court should have required good cause before permitting server access | Court: § 9-11-34(c)(1) good-cause showing applies to motions to compel; not required here |
| Whether requesting party may directly image and copy entire shared server | Coosawattee argued imaging preserves evidence and is necessary before altering server | Agio/Blanton argued direct copying exceeds § 9-11-34(a) scope, risks disclosure of privileged/non-party data; proposed translation/firewall/in-camera review | Court reversed: trial court abused discretion by allowing direct copying of entire server; requesting party is ordinarily limited to translated, reasonably usable product produced by responding party unless specific showing justifies direct access |
| Protection of non-party and privileged data on shared server | Imaging necessary to preserve evidence and can be sealed/subject to later court control | Imaging will expose privileged communications and non-party data; less intrusive alternatives (special master, in-camera review, firewalled extraction) available | Court did not decide privilege question but found procedure ordered (unrestricted imaging) improper; remanded (reversed trial court order) |
Key Cases Cited
- Bridges v. 20th Century Travel, 149 Ga. App. 837 (Ga. App. 1979) (standard of review for protective orders)
- Fulton County Bd. of Assessors v. Saks Fifth Avenue, 248 Ga. App. 836 (Ga. App. 2001) (discretionary review of protective order rulings)
- Norfolk Southern R. Co. v. Hartry, 316 Ga. App. 532 (Ga. App. 2012) (untranslated electronic data must ordinarily be translated by responding party before production)
- In re Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003) (Rule 34 does not grant unrestricted direct access to a respondent’s raw database; responding party should translate raw data into reasonably usable form)