09 LC
29 3719S
The
House Committee on Judiciary offers the following substitute to HB
73:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 6 of Chapter 11 of Title 9 of the Official Code of Georgia
Annotated, relating to civil trials, so as to provide for the appointment of
special masters; to provide for authority; to provide for orders and reports; to
provide for procedure; to provide for compensation; to provide for related
matters; to provide for an effective date; to repeal conflicting laws; and for
other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
6 of Chapter 11 of Title 9 of the Official Code of Georgia Annotated, relating
to civil trials, is amended by adding a new Code section to read as
follows:
"9-11-53.
(a)
Appointment,
removal, and substitution.
(1)
Upon the motion of any party or upon the court's own motion, a court may appoint
a special master only to:
(A)
Perform duties consented to by the parties;
(B)
Monitor implementation of and compliance with orders of the court;
(C)
Investigate and report to the court on factual issues identified by the
court;
(D)
Conduct an accounting as instructed by the court and report on the results of
such accounting; or
(E)
Review other matters allowed to be reviewed by special masters under the laws of
this state, subject to the procedural requirements of this Code
section.
(2)
Upon the motion of any party, a court may appoint a special master only
to:
(A)
Address discovery matters that the court cannot efficiently, effectively, or
promptly address;
(B)
Provide guidance, advice, and information to the court on complex or specialized
subjects, including, but not limited to, technology issues related to the
discovery process; or
(C)
Monitor implementation of settlement agreements.
(3)
A special master shall not have a relationship to the parties, counsel, action,
or court that would require disqualification of a judge under Code Section
15-1-8, unless the parties consent with the court's approval to appointment of a
particular person after disclosure of any potential grounds for
disqualification.
(4)
The court shall notify the parties in writing of its intention to appoint a
special master, and the parties shall have ten days from the date of such notice
to agree upon a person to be appointed as special master and to notify the court
in writing of such agreement. If agreed upon, such person may be appointed as
the special master. If the parties cannot agree on the person to serve as
special master, the parties may suggest candidates for appointment, but the
court may select any person to serve as special master.
(5)
In appointing a special master, the court shall consider the fairness of
imposing the likely expenses on the parties and shall protect against
unreasonable expense or delay.
(6)
A special master may be removed or substituted by order of the court, upon
motion of a party, or sua sponte.
(b)
Order
appointing a special master.
(1)
The court shall give the parties notice and an opportunity to be heard before
appointing a special master.
(2)
The order appointing a special master shall direct the special master to proceed
with all reasonable diligence and shall state:
(A)
The special master's duties, including any investigation or enforcement duties,
and any limits on the special master's authority under subsection (c) of this
Code section;
(B)
The circumstances, if any, in which the special master may communicate ex parte
with the court or a party;
(C)
The nature of the materials to be preserved and filed as the record of the
special master's activities;
(D)
The time limits, method of filing the record, other procedures, and standards
for reviewing the special master's orders, findings, and recommendations;
and
(E)
The basis, terms, and procedure for fixing the special master's compensation
under subsection (h) of this Code section.
(3)
The court may enter the order appointing a special master only after the special
master has filed an affidavit disclosing whether there is any ground for
disqualification under Code Section 15-1-8 and, if a ground for disqualification
is disclosed, after the parties have consented with the court's approval to
waive the disqualification; the special master shall certify in such affidavit
that he or she will discharge his or her duties as required by law and pursuant
to the court's instructions without favor to, or prejudice against any
party.
(4)
The order appointing a special master may be amended at any time after notice to
the parties and an opportunity to be heard.
(c)
Special
master's
authority.
Unless the appointing order expressly directs otherwise, a special master has
authority to regulate all proceedings and take all appropriate measures to
perform fairly and efficiently the assigned duties. The special master may by
order impose upon a party any noncontempt sanction provided by Code Section
9-11-37 or 9-11-45, and may recommend a contempt sanction against a party and
sanctions against a nonparty.
(d)
Evidentiary
hearings.
Unless the appointing order expressly directs otherwise, a special master
conducting an evidentiary hearing may exercise the power of the appointing court
to compel, take, and record evidence.
(e)
Special
master's
orders. A
special master who makes an order shall file such order with the clerk of court
for docketing and promptly serve a copy of such order on each party unless
otherwise directed by the court. The clerk shall enter the order on the
docket.
(f)
Special
master's
reports.
Unless otherwise indicated in the appointment order, a special master shall
report to the court:
(1)
All motions submitted by the parties;
(2)
All rulings made on all issues presented and all conclusions of law and findings
of fact;
(3)
All evidence offered by the parties and all rulings as to the admissibility of
such evidence; and
(4)
Such other matters as the master may deem appropriate.
(g)
Action
on special master's order, report, or recommendations.
(1)
In acting on a special master's order, report, or recommendations, the court
shall afford the parties an opportunity to be heard and object to any portion
thereof. The court may receive evidence, and may adopt or affirm, modify,
reject or reverse in whole or in part, or resubmit some or all issues to the
special master with instructions.
(2)
A party may file a motion to reject or modify the special master's order,
report, or recommendations no later than 20 days from the date on which the
special master's order, report, or recommendations are served, unless the court
sets a different time. The special master's order, report, or recommendations
shall be deemed received three days after mailing by United States mail or
transmission electronically, or on the same day if served by hand delivery. In
the absence of a motion to reject or modify an order, report, or recommendation
within the time provided, the order, report, or recommendation shall have the
force and effect of an order of the court.
(3)
The court shall decide de novo all objections to findings of fact made or
recommended by a special master unless the parties stipulate with the court's
consent that:
(A)
The special master's findings will be reviewed for clear error;
or
(B)
The findings of a special master appointed under subparagraph (a)(1)(A) of this
Code section shall be final.
(4)
The court shall decide de novo all objections to conclusions of law made or
recommended by a special master.
(5)
Unless the order of appointment establishes a different standard of review, the
court may set aside a special master's ruling on a procedural matter only for an
abuse of discretion.
(h)
Compensation.
(1)
The court shall fix the special master's compensation on the basis and terms
stated in the order of appointment, but the court may set a new basis and terms
after notice and an opportunity to be heard.
(2)
The compensation fixed under paragraph (1) of subsection (h) of this Code
section shall be paid either:
(A)
By a party or parties; or
(B)
From a fund or subject matter of the action within the court's
control.
(3)
The court shall allocate payment of the special master's compensation among the
parties after considering the nature and amount of the controversy, the means of
the parties, and the extent to which any party is more responsible than other
parties for the reference to a special master. An interim allocation may be
amended to reflect a decision on the
merits."
SECTION
2.
This
Act shall become effective on January 1, 2010.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.