Delays Likely in Georgia Case Against Lexis-Nexis

ATLANTA (CN) - A class action against LexisNexis Courtlink and Fulton County is progressing slowly after a scheduling conference at the DeKalb County Courthouse.

Steven J. Newton and other attorneys represent a group challenging the legality of the mandatory e-filing system that LexisNexis runs for the Fulton County court system, and demanding a refund of unauthorized fees.

Newton's associate Shuli L. Green attended the scheduling conference this week, along with William Whitner, attorney for Reed Elsevier-owned LexisNexis Courtlink and Fulton County attorney Kaye W. Burwell.

DeKalb Superior Court Judge Clarence Seeliger presided over the hearing, called to set a schedule for discovery to determine whether to certify the class defined by Newton for the case first filed in Fulton County Superior Court.

Seeliger is the latest in a series of judges assigned to the case. The lawsuit was removed from Fulton County after DeKalb Superior Court Judge Robert Castellani ordered the recusal of the entire Fulton County bench.

Castellani assigned the case to Judge Courtney Johnson, who recused herself without explanation, and Seeliger was Castellani's next choice.

Since he did not have time to review the filing after Judge Johnson's unexpected recusal, Seeliger opened the hearing on Monday with a request for an explanation of the case before deciding on Newton's call for a 120-day discovery period.

Newton, who represents The Best Jewelry Manufacturing Co. and Kenneth Clowdus, administrator for the estate of Kenneth Larry Clowdus, recapped his argument against the mandatory nature of the Fulton County court e-filing system.

"When the court system administrated this, they were not under authority to mandate the use of LexisNexis or [else lose] access to the court," Newton said. "You can at your desk pay, or access a terminal at the courthouse. It's not free to go to the court."

"The administrative orders have stepped into the arena of the General Assembly," he added. "Setting up a system where you have to pay a fee without the [approval of] the General Assembly is ultra vires."

Newton said judges do not have the power to require e-filing without the General Assembly's involvement, and that he has no problem with an optional e-filing system.

In dealing with LexisNexis, Best Jewelry's attorney could not access the court because of an account-payment issue, Newton said.

LexisNexis representative Carol Murphy told attorney Jeffrey Banks that "if you have an account that is in arrearage, you are completely locked out of the court system," Newton continued, citing a telephone transcript.

LexisNexis attorney William K. Whitner said he was frustrated with Newton's repeated attempts to sue.

"I want to make it clear that the defendant Lexis filed the motion to dismiss," Whitner said. "We're now on the eighth complaint. We make a move, and then they change it."

He referred to his previous request for dismissal, which Judge Castellani denied.

Whitner repeated the primary defense used during that dismissal attempt, the voluntary-payment doctrine detailed in Official Code of Georgia Annotated 13-1-13. "The plaintiffs knew they were making a payment for a service, and they should be barred from seeking compensation," Whitner said, adding that that argument still applies.

Whitner also cited the dismissal of the plaintiffs' former fraud allegation against LexisNexis and Fulton County, which Newton voluntarily dismissed without prejudice.

Newton rebutted Whitner's view of the fraud dismissal.

"We had several other arguments in addition to the fraud, and their motion to dismiss was denied, and they did not appeal it," Newton said. "That doesn't bar our seeking discovery."

The attorneys struggled to summarize a case that has undergone so many changes. Plaintiffs' attorney Shuli Green said "it [didn't] seem appropriate to discuss [the fraud dismissal] while attempting to get a schedule for discovery."

Judge Seeliger interrupted the attorneys to ask about class seeking to be certified. Newton replied: "Our class is all past, current and future litigants who have been or will be subject to the unlawful e-filing scheme and charged unlawful fees in connection therewith."

NexisLexis charges $7 to $12 per filing, Newton said.

Whitner said that 120 days would not be enough for discovery.

Both Whitner and Burwell were served with interrogatories during the hearing, and Newton acknowledged that the defense attorneys would need time to form their anticipated objections.

Whitner gave the attorneys a 15-minute recess to discuss the next step they wished to take.

The attorneys agreed to ask for a 45-day period during which the defense will form objections or answer. Seeliger agreed and set the date for the next hearing in September.

Burwell said she anticipates filing a motion on behalf of Fulton County to dismiss refund claims for the use of the LexisNexis e-file service. She said her pursuit of that dismissal should not hinder the discovery process.

The next hearing is set for 9:30 a.m. on Sept. 21 at the DeKalb County Courthouse.

This is Newton's fourth claim against Fulton County and Lexis-Nexis Courtlink.

The Fulton County Superior Court case was originally filed in May 2009, then voluntarily dismissed and refiled on Jan. 6.

Newton filed a similar lawsuit against Lexis-Nexis Courtlink and Fulton County in federal court. He filed the original federal claim in December 2007 but withdrew it in March 2008, then refiled it in June 2008.

Cathlene "Tina" Robinson and Mark N. Harper, Fulton County Superior and State Court clerks, were defendants in the federal case. That case was dismissed in March.

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