“Frivolous Litigation” Bill Stripped of “Loser Pays” Provisions but Automatic Stay of Discovery Still Has Potential for Mischief

At the beginning of the current legislative session, the Governor announced plans for a “frivolous litigation” to require that any plaintiff who loses a motion to dismiss to pay the defendant’s attorney fee, and to have an automatic and indeterminate stay of discovery while a motion to dismiss is pending.

As of yesterday, the bill was watered down by removing the attorney fee provisions, which are duplicative of not less than five other “loser pays” provisions in existing Georgia law, and to limit the automatic stay to 120 days with earlier discovery permitted regarding the basis of the motion to dismiss.

I testified briefly at the Senate Judiciary subcommittee that took up the bill.  While I expressed appreciation for withdrawal of the attorney fees provision, I pointed out that a defendant may already file a motion for protective order or motion for stay of discovery.  The bill does nothing positive that cannot be done under existing Georgia law.  Current law is not broken on this point, and that the “law of unintended consequences” is in full force and effect. 

The potential for frivolous motions to dismiss being used for purposes of delay, and for “accidental” destruction of evidence during the automatic stay is troubling.

If this bill becomes law, plaintiffs’ attorneys faced with a motion to dismiss will need to immediately conduct aggressive discovery about the basis of the motions including exhaustive 30(b)(6) depositions of corporate defendants regarding the basis of their motions,  serve notices to withdraw the frivolous defenses under existing attorney fee statutes, and schedule an expedited hearing to get the court to rule on the motions.  We would do well to have targeted discovery and briefs ready to meet any frivolous motions to dismiss. 

The new law, if enacted, will just add another layer of complexity, expense and delay, while accomplishing virtually nothing that the proponents say they want .

Ken Shigley is a trial attorney in Atlanta, Georgia who was recently listed for the fifth consecutive year as a “Super Lawyer” (Atlanta Magazine).  He is also included among the “Legal Elite” (Georgia Trend Magazine) and in the Bar Register of Preeminent Lawyers (Martindale).  Mr. Shigley is a Certified Civil Trial Advocate of the National Board of Trial Advocacy. With longexperience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases, he now serves as Secretary  of the 40,000 member State Bar of Georgia.