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Georgia Legislature Adopts Automatic Stay of Discovery Rule

The Georgia legislature recently adopted a bill (H.B. 29) that, in addition to allowing for electronic service of pleadings via email, imposes an automatic stay of discovery in civil suits where the defendant files a motion to dismiss at or before the time when an answer must be filed.

Governor Perdue has already commented favorably on the bill, so its passage seems likely.

The logic of the bill is that it allows the defendant to avoid (or at least delay) the expense of discovery until the court has the opportunity to rule on the preliminary motion. The rationale is that defendants who expect to be dismissed at the preliminary motion stage should be entitled to avoid the expense of discovery.

The reform would not, however, do anything to reduce the expense of litigation for those cases where the plaintiff's pleadings are logically valid but ultimately non-merit-worthy. A preliminary motion does not address the ultimate merits of the case, but merely asks whether the plaintiff's complaint "states a claim on which relief may be granted."

While nearly half of all complaints are dismissed through motions for summary judgment, very few are dismissed on a motion to dismiss of the kind contemplated in H.B. 29.

HB 29 was originally coupled with a loser-pays provision that would have imposed the defendant's attorneys' fees on the plaintiff if the preliminary motion to dismiss prevailed but that provision was booted (at least in part) because lawmakers could not adequately define the term "substantial merit" (the lack of which would have triggered the payment of attorneys fees). In addition, the provision could have complicated the use of Georgia's somewhat unique "offer of judgment" rule in O.C.G.A. 9-11-68.

Fellow Atlantan Ken Shigley predicts that H.B. 29 will prompt a "rash of frivolous motions to dismiss as a stalling tactic" but will eventually become "much ado about nothing."

He reasons that defendants who file frivolous motions to dismiss will be sanctioned for doing so and that this will eventually curtail the practice, an outcome that's hard to dispute, although I seem to have missed the plaintiff's bar using that argument in favor of H.B. 29 before it was passed.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.