Challenge to LexisNexis Moving at Glacial Pace
ATLANTA (CN) - A hearing to discuss the pre-trial progress of a class action against LexisNexis Courtlink and Fulton County ended with a decision to table consideration of outstanding motions until the pre-certification discovery process is complete.
The lawsuit revolves around the issue of whether the Fulton County court has the authority to mandate the use of LexisNexis' e-filing system or else lose access to the court.
Among those in attendance at the Sept. 21 hearing at the DeKalb County Superior Court was Steven J. Newton, attorney for The Best Jewelry Manufacturing Co. and Kenneth Clowdus, administrator for the estate of Kenneth Larry Clowdus, Fulton County attorney William Miles, and William K. Whitner, attorney for LexisNexis.
Its intent was to discuss the results of discovery exchanges that have occurred in the slow-moving case over the past few months.
However, as the discussion got under way it quickly became clear that the process was far from complete. Whitner claimed he is still awaiting feedback on submissions to the Best Jewelry-Clowdus team, while the plaintiffs' attorneys complained of receiving Fulton County's documents literally days before the hearing.
"We got some 20,000 documents from Fulton County only three days ago. Obviously, we haven't had the chance to look through [that many] documents, but we feel that with those documents we may have enough to go forward with class certification," said Irwin Stolz, Newton's co-council.
Stolz said Miles filed "various and sundry little motions" that had done little but delayed the case. As a case in point, he pointed to Miles' intention to file a motion for dismissal of any damage liability against Fulton County that very day.
Stolz asked DeKalb Superior Court Judge Clarence Seeliger to set a deadline first for class pre-certification discovery before starting merit discovery, after which LexisNexis owner Reed Elsevier and Fulton County might file their merit-based motions.
Miles insisted that the motion to dismiss damages didn't involve merits.
"It has to do with the fact that [Fulton County is] entitled to sovereign immunity as a matter of law," Miles said. "It doesn't matter how true their facts are, or how badly we acted, we're still entitled to sovereign immunity against damages."
He inferred that the sovereignty right negated the need for a class action, stating that "it wouldn't matter if it was one person, two people, or a thousand".
Miles also anticipates filing for summary judgment in the future.
"I'm not going to address that yet," said Judge Seeliger, after Stolz countered that Fulton County has no immunity for violating the law.
Whitner agreed with Miles, stating that a class action in this case was not appropriate, and responded to Newton co-council Shuli Green's on-the-spot request for facts that might preclude class certification.
"Our position is these interrogatories are premature. We have not yet seen [Best Jewelry-Clowdus'] motion for class certification. It would be inadequate to ask us at this time to answer with facts," said Whitner.
The Best Jewelry-Clowdus team has until December 1 to formally file for class certification, and to submit requests for any further discovery needed.
The parties will have until February 1 to complete the class certification discovery process, after which the certification hearing will be scheduled.Seeliger also agreed to delay discovery on merits until certification discovery is completed.