Discovery Interrogatories from Plaintiff to Defendant with Production Requests
Note: This summary is not intended to be an all-inclusive
summary of discovery law in Georgia, but does include basic and other information.
Definitions
Discovery: A procedure designed to allow disclosure
of information between Plaintiffs and Defendants. Written questions, oral
questioning, document production and admissions requests are generally
allowed. Discovery was designed to to prevent trial by ambush.
Interrogatories: Written questions from Plaintiff to
Defendant, or from Defendant to Plaintiff. The questions are mailed to
the Plaintiff, Defendant or the attorney for response in writing. The answers
or responses are usually due between 20-30 days.
Deposition: A procedure where verbal questions are
asked a Plaintiff or Defendant for immediate response. Depositions are
usually recorded by a court reporter, who swears the person to tell the
truth before questioning begins.
Production of Documents: The method of obtaining documents
from the other party relevant to the case such as all documents a party
intends to introduce at trial.
Requests for Admissions: Written questions where you
request the other party to admit or deny some relevant fact.
Objections: Objections may be made to all discovery
questions if the questions are not relevant, or likely to lead to the discovery
of relevant evidence.
Civil Procedure Rules: Virtually all states have adopted
a version of civil procedure rules which include rules dealing with discovery.
Georgia Uniform Court Rules
Georgia has adopted Uniform Court Rules which are contained in
the Georgia Code, Sections 9-11-26 through 9-11-37. The discovery rules
also apply in divorce actions.
Discovery Methods: Parties may obtain discovery by one or
more of the following methods: (1) depositions upon oral examination or
written questions; (2) written interrogatories; (3) production of documents
or things or permission to enter upon land or other property, for inspection
and other purposes; and (4) requests for admission. Unless the court orders
otherwise, the frequency of use of these methods is not limited. (Georgia
Code, Section 9-11-26)
Scope: Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the issues raised by the claims or
defenses of any party. The discovery may include the existence, description,
nature, custody, condition and location of any books, documents, or other
tangible things; and the identity and location of persons (i) having knowledge
of any discoverable matter or (ii) who may be called as witnesses at the
trial. It is not ground for objection that the information sought will
be inadmissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence. A party may
obtain without the required showing a statement concerning the action or
its subject matter previously made by that party. (Georgia Code, Section
9-11-26)
Experts: A party may through interrogatories require
any other party to identify each person whom the other party expects to
call as an expert witness at trial, to state the subject matter on which
the expert is expected to testify, and to state the substance of the facts
and opinions to which the expert is expected to testify and a summary of
the grounds for each opinion. (Georgia Code, Section 9-11-26)
Supplementation of Responses. A party who has responded to
a request for discovery with a response that was complete when made is
under no duty to supplement his response, except to supplement with respect
to any question directly addressed to (A) the identity and location of
persons (i) having knowledge of discoverable matters, or (ii) who may be
called as witnesses at the trial, and (B) the identity of each person expected
to be called as an expert witness at trial, the subject matter on which
he is expected to testify, and the substance of his testimony.
A party is under a duty seasonably to amend a prior response if
he obtains information upon the basis of which (A) he knows that the response
was incorrect when made, or (B) he knows that the response, though correct
when made, is no longer true and the circumstances are such that a failure
to amend the response is in substance a knowing concealment. (Georgia Code,
Section 9-11-26)
Before Whom Depositions May Be Taken: (a) Within the United
States and its possessions. Within the United States or within a territory
or insular possession subject to the dominion of the United States, depositions
shall be taken before an officer authorized to administer oaths by the
laws of the United States or by the laws of the place where the examination
is held or before a court reporter appointed by the court in which the
action is pending or, if within this state, before a certified court reporter
or as otherwise provided by the rules of the Board of Court Reporting.
A person so appointed has power to administer oaths and take testimony.
(b) In foreign countries. In a foreign state or country depositions
shall be taken on notice before a secretary of embassy or legation,consul
general, consul, vice-consul, or consular agent of the United States, or
before such person or officer as may be appointed by commission or under
letters rogatory. A commission or letters rogatory shall be issued
only when necessary or convenient, on application and notice, and on such
terms and with such directions as are just and appropriate. Officers may
be designated in notices or commissions either by name or by descriptive
title and letters rogatory may be addressed "To the Appropriate Judicial
Authority in (here name the country)."
(c) Disqualification for interest. No deposition shall be taken
before a court reporter who is a relative, employee, attorney, or counsel
of any of the parties, or who is a relative or employee of such attorney
or counsel, or who is financially interested in the action, excepting that
a deposition may be taken before a court reporter who is a relative of
a party or of an attorney or counsel of a party if all parties represented
at the deposition enter their explicit consent to the same upon the record
of the deposition. (Georgia Code, Section 9-11-28)
Stipulations: Unless the court orders otherwise, the parties
may, by written stipulation: (1) Provide that depositions may be taken
before any person, at any time or place, upon any notice, and in any manner
and, when so taken, may be used like other depositions; and
(2) Modify the procedures provided by this chapter for other methods
of discovery. (Georgia Code, Section 9-11-29)
Summary of Georgia Code, Section 9-11-29.1:
Georgia Code, Section 9-11-29.1 specifically lists when depositions
and other discovery material, otherwise required to be filed with the court
shall not be required to be filed.
The entire rule provides:
(a) Depositions and other discovery material otherwise required
to be filed with the court under this chapter shall not be required to
be so filed unless:
(1) Required by local rule of court;
(2) Ordered by the court;
(3) Requested by any party to the action;
(4) Relief relating to discovery material is sought under this chapter and said material has not previously been filed under some
other provision of this chapter, in which event copies of thematerial in
dispute shall be filed by the movant contemporaneously with the motion
for relief; or
(5) Such material is to be used at trial or is necessary to apretrial
or posttrial motion and said material has not previously been filed under
some other provision of this chapter, in whichevent the portions to be
used shall be filed with the clerk of the court at the outset of the trial
or at the filing of the motion,insofar as their use can be reasonably anticipated
by the partieshaving custody thereof, but a party attempting to file and
use such material which was not filed with the clerk at the outset ofthe
trial or at the filing of the motion shall show to the satisfaction
of the court, before the court may authorize such filing and use, that
sufficient reasons exist to justify that late filing and use and that the
late filing and use will not constitute surprise or manifest injustice
to any other party in the proceedings.
(b)Until such time as discovery material is filed under paragraphs
(1)through (5) of subsection (a) of this Code section, the original of
all depositions shall be retained by the party taking the deposition and
the original of all other discovery material shall be retained by the party
requesting such material, and the person thus retaining the deposition
or other discovery material shall be the custodian thereof. (Georgia Code,
Section 9-11-29.1)
When Depositions May Be Taken:
(a) When depositions may be taken. After commencement of the action,
any party may take the testimony of any person, including a party, by deposition
upon oral examination. Leave of court, granted with or without notice,
must be obtained only if the plaintiff seeks to take a deposition prior
to the expiration of 30 days after service of the summons and complaint
upon any defendant or service made under subsection (f) of Code Section
9-11-4, except that leave is not required if a defendant has served a notice
of taking deposition or otherwise sought discovery or if special
notice is given as provided in paragraph (2) of subsection (b)
of this Code section. The attendance of witnesses may be compelled
by subpoena as provided in Code Section 9-11-45. The deposition of
a person confined in a penal institution may be taken only by leave of
court on such terms as the court prescribes.
(b) Notice of examination.
(1) General requirements. A party desiring to take the deposition
of any person upon oral examination shall give reasonable notice in writing
to every other party to the action. The notice shall state the time and
place for taking the deposition, the means by which the testimony shall
be recorded, and the name and address of each person to be xamined, if
known, and, if the name is not known, a general description sufficient
to identify the person to be examined or the particular class or group
to which he or she belongs. If a subpoena for the production of documentary
and tangible evidence is to be served on the person to be examined, the
designation of the materials to be produced, as set forth in the subpoena,
shall be attached to, or included in, the notice.
(2) Special notice. Leave of court is not required for the taking
of a deposition by plaintiff if the notice:
(A) States that the person to be examined is about to go out of
the county where the action is pending and more than 150 miles
from the place of trial, or is about to go out of the United States,
or is bound on a voyage to sea, and will be unavailable for amination unless
the deposition is taken before expiration of the 30 day period; and
(B) Sets forth facts to support the statement. The plaintiff's attorney
shall sign the notice, and said attorney's signature constitutes a certification
by him or her that, to the best of his or her knowledge, information, and
belief, the statement and supporting facts are true. If a party shows that,
when he or she was served with notice under this paragraph, he or she was
unable through the exercise of diligence to obtain counsel to represent
him or her at the taking of the deposition, the deposition may not be used
against such party.
(3) Time requirements. The court may, for cause shown, enlarge or
shorten the time for taking the deposition.
(4) Recording of deposition. Unless the court orders otherwise,
the testimony at a deposition must be recorded by stenographic means, and
may also be recorded by sound or sound and visual means in addition to
stenographic means, and the party taking the deposition shall bear the
costs of the recording. A deposition shall be conducted before an officer
appointed or designated under Code Section 9-11-28. Upon motion of a party
or upon its own motion, the court may issue an order designating the manner
of recording, preserving, and filing of a deposition taken by nonstenographic
means, which order may include other provisions to assure that the recorded
testimony will be accurate and trustworthy. Any party may arrange for a
transcription to be made from the recording of a deposition taken by nonstenographic
means. With prior notice to the deponent and other parties, any party may
designate another method to record the deponent's testimony in addition
to the methods specified by the person taking the deposition. The additional
record or transcript shall be made at that party's expense unless the court
otherwise orders. The appearance or demeanor of deponents or attorneys
shall not be distorted through camera or sound-recording techniques. Notwithstanding
the foregoing provisions of this paragraph, a deposition may be taken by
telephone or other remote electronic means only upon the stipulation of
the parties or by order of the court. For purposes of the requirements
of this chapter, a deposition taken by telephone or other remote electronic
means is taken in the state and at the place where the deponent is to answer
questions.
(5) Production of documents and things. The notice to a party deponent
may be accompanied by a request made in compliance with Code Section 9-11-34
for the production of documents and tangible things at the taking of the
deposition. The procedure of Code Section 9-11-34 shall
apply to the request.
(6) Deposition of organization. A party may, in his or her notice,
name as the deponent a public or private corporation orapartnership or
association or a governmental agency and signate with reasonable particularity
the matters on which examinationis requested. The organization so named
shall designate one or more officers, directors, or managing
agents, or other persons who consent to testify on its behalf, and may
set forth, for each person designated, the matters on which he or she will
testify. The persons so designated shall testify as to matters known or
reasonably available to the organization. This paragraph does not preclude
taking a deposition by any other procedure authorized in this chapter.
(Georgia Code, Section 9-11-30)
Interrogatories
(a) Availability; procedures for use.
(1) Any party may serve upon any other party written interrogatories
to be answered by the party served or, if the party served is a public
or private corporation or a partnership or association or a governmental
agency, by any officer oragent, who shall furnish such information as is
available to the party. Interrogatories may, without leave of court, be
served upon the plaintiff after commencement of the action and upon any
other party with or after service of the summons and complaint upon
that party; provided, however, that no party may serve interrogatories
containing more than 50 interrogatories, including subparts, upon any other
party without leave of court upon a showing of complex litigation or undue
hardship incurred if such additional interrogatories are not permitted.
(2) Each interrogatory shall be answered separately and fully in
writing under oath, unless it is objected to, in which event thereasons
for objection shall be stated in lieu of an answer. The answers are to
be signed by the person making them, and the objections signed by the attorney making them. The party upon whom
the interrogatories have been served shall serve a copy of the answers,
and objections if any, within 30 days after the service of the interrogatories,
except that a defendant may serve answers or objections within 45 days
after service of the summons and complaint upon that defendant. The court
may allow a shorter or longer time. The party submitting the interrogatories
may move for an order under subsection (a) of Code Section 9-11-37 with
respect to any objection to or other failure to answer an interrogatory.
(b) Scope; use at trial.
(1) Interrogatories may relate to any matters which can be inquired
into under subsection (b) of Code Section 9-11-26, andthe answers may be
used to the extent permitted by the rules ofevidence.
(2) An interrogatory otherwise proper is not necessarily objectionable
merely because an answer to the interrogatory involves an opinion
or contention that relates to fact or to the application of law to fact;
but the court may order that such an interrogatory need not be answered
until after designated discovery has been completed or until a pretrial
conference or other later time.
(c) Option to produce business records. Where the answer to
an
interrogatory may be derived or ascertained from the business
records of the party upon whom the interrogatory has been served
or from an examination, audit, or inspection of such business records,
or from a compilation, abstract, or summary based thereon, and the burden
of deriving or ascertaining the answer is substantially the same for the
party serving the interrogatory as for the party served, it is a sufficient
answer to the interrogatory to specify the records from which the answer
may be derived or ascertained and to afford to the party serving the interrogatory
reasonable opportunity to examine, audit, or inspect such records and to
make copies, compilations, abstracts, or summaries. (Georgia Code, 9-11-33)
PHYSICAL AND MENTAL EXAMINATIONS OF PERSONS
(a) Order for examination. When the mental or physical condition
(including the blood group) of a party, or of a person in the custody or
under the legal control of a party, is in controversy, the court in which
the action is pending may order the party to submit to a physical or mental
examination by a physician or to produce for examination the person in
his custody or legal control. The order may be made only on motion for
good cause shown and upon notice to the person to be examined and to all
parties and shall specify the time, place, manner, conditions, and scope
of the examination and the person or persons by whom it is to be made.
(b) Report of examining physician.
(1) If requested by the party against whom an
order is
made under subsection (a) of this Code section or by the person
examined, the party causing the examination to be made shall deliver to
him a copy of a detailed written report of the examining physician setting
out his findings, including results of all tests made, diagnoses, and conclusions,
together with like reports of all earlier examinations of the same condition.
(2) Any party shall be entitled, upon request, to receive from the
party whose physical or mental condition is in issue, or who is in control
of, or has legal custody of, a person whose physical or mental condition
is in issue, a report of any and every examination, previously or thereafter
made, of the condition in issue, unless, in the case of a report of examination
of a person not a party, the party shows that he is unable to obtain it.
(3) The court, on motion, may make an order against a partyrequiring
delivery of a report under paragraph (1) or (2) of this subsection on such
terms as are just; and, if a physician fails or refuses to make a report,
the court may exclude his testimony if offered at the trial.
(4) By requesting and obtaining a report of the examination so ordered
or by taking the deposition of the examiner, the party examined waives
any privilege he may have in that action, or any other action involving
the same controversy, regarding the testimony of every other person who has examined or may thereafter
examine him in respect to the same mental or physical condition.
(5) Paragraphs (1) through (4) of this subsection apply to examinations
made by agreement of the parties, unless the agreement expressly provides
otherwise. Paragraphs (1) through (4) of this subsection do not preclude
discovery of a report of an examining physician or the taking of a deposition
of the physician in accordance with any other Code section of this chapter.
(Georgia Code, 9-11-35)
Requests for Admissions
(a) Scope; service; answer or objection; motion to determine sufficiency.
(1) A party may serve upon any other party a written request for
the admission, for purposes of the pending action only, of the truth of
any matters within the scope of subsection (b) of Code Section 9-11-26
which are set forth in the request and that relate to statements or opinions
of fact or of the application of law to fact, including the genuineness
of any documents described in the request. Copies of documents shall be
served with the request unless they have been or are otherwise furnished
or made available for inspection and copying. The request may, without
leave of court, be served upon the plaintiff after commencement of the
action and upon any other party with or after service of the summons and
complaint upon that party.
(2) Each matter of which an admission is requested shall be
separately set forth. The matter is admitted unless, within 30 days after
service of the request or within such shorter or longer time as the court
may allow, the party to whom the request is directed serves upon the party
requesting the admission a written answer or objection addressed to the
matter, signed by the party or by his attorney; but unless the court shortens
the time, a defendant shall not be required to serve answers or objections
before the expiration of 45 days after service of the summons and complaint
upon him. If objection is made, the reasons therefor shall be stated.
The answer shall specifically deny the matter or set forth in detail
the reasons why the answering party cannot truthfully admit or deny the
matter. A denial shall fairly meet the substance of the requested
admission; and, when good faith requires that a party qualify his
answer or deny only a part of the matter of which an admission is
requested, he shall specify so much of it as is true and qualify or deny
the remainder. An answering party may not give lack of information
or knowledge as a reason for failure to admit or deny unless he states
that he has made reasonable inquiry and that the information known
or readily obtainable by him is insufficient to enable him to admit or
deny. A party who considers that a matter of which an admission has been
requested presents a genuine issue for trial may not, on that ground alone,
object to the request; he may, subject to subsection
(c) of Code Section 9-11-37, deny the matter or set forth reasons
why he cannot admit or deny it.
(3) The party who has requested the admissions may move to determine
the sufficiency of the answers or objections. Unless the court determines
that an objection is justified, it shall order that an answer be served.
If the court determines that an answer does not comply with the requirements
of this subsection, it may order either that the matter is admitted or
that an amended answer be served. The court way, in lieu of these orders,
determine that final disposition of the request be made at a pretrial conference
or at a designated time prior to trial. Paragraph (4) of subsection (a)
of Code Section 9-11-37 shall apply to the award of expenses incurred
in relation to the motion.
(b) Effect of admission. Any matter admitted under this Code section
is conclusively established unless the court, on motion, permits withdrawal
or amendment of the admission. Subject to Code Section 9-11-16 governing
amendment of a pretrial order, the court may permit withdrawal or
amendment when the presentation of the merits of the action will be subserved
thereby and the party who obtained the admission fails to satisfy the court
that withdrawal or amendment will prejudice him in maintaining his action
or defense on the merits. Any admission made by a party under this Code
section is for the purpose of the pending action only and is not an admission
by him for any other purpose, nor may it be used against him in any other
proceeding. (Georgia Code, 9-11-36)
Motion Compelling Discovery
(a) Motion for order compelling discovery. A party, upon reasonable
notice to other parties and all persons affected thereby, may apply
for an order compelling discovery as follows:
(1) Appropriate court. An application for an order to a party may
be made to the court in which the action is pending or, on matter relating
to a deposition, to the court in the county where the deposition is being
taken. An application for an order to
deponent who is not a party shall be made to the court in thecounty
where the deposition is being taken;
(2) Motion; protective order. If a deponent fails to answer question
propounded or submitted under Code Section 9-11-30 or 9-11-31, or a corporation
or other entity fails to make designation under paragraph (6) of subsection
(b) of Code Section 9-11-30 or subsection (a) of Code Section 9-11-31,
or a part fails to answer an interrogatory submitted under Code Section
9-11-33, or if a party, in response to a request for inspection submitted
under Code Section 9-11-34, fails to respond that inspection will be permitted
as requested or fails to permit inspection as requested, the discovering
party may move for an order compelling an answer, or a designation, or
an order compelling inspection in accordance with the request. When taking
a deposition on oral examination, the proponent of the question may complete
or adjourn the examination before he applies for an order. If the court
denies the motion in whole or in part, it may make such protective order
as it would have been empowered to make on a motion made pursuant to subsection
(c) of Code Section 9-11-26;
(3) Evasive or incomplete answer. For purposes of the provisions
of this chapter which relate to depositions and discovery, an evasive or
incomplete answer is to be treated as a failure to answer; and
(4) Award of expenses of motion.
(A) If the motion is granted, the court shall, after opportunity
for hearing, require the party or deponent whose conduct necessitated the
motion or the party or attorney advising such conduct or both of them to
pay to the moving party the reasonable expenses incurred in obtaining the
order, including attorney's fees, unless the court finds that the opposition
to the motion was substantially justified or that other circumstances make
an award of expenses unjust.
(B) If the motion is denied, the court shall, after opportunity
for hearing, require the moving party or the attorney advising the motion
or both of them to pay to the party or deponent who opposed the motion
the reasonable expenses incurred in opposing the motion, including attorney's
fees, unless the court finds that the making of the motion was substantially
justified or that other circumstances make an award of expenses unjust.
(C) If the motion is granted in part and denied in part, the court
may apportion the reasonable expenses incurred in relation to the motion
among the parties and persons in a just manner.
(b) Failure to comply with order.
(1) Sanctions by court in county where deposition is taken. If a
deponent fails to be sworn or to answer a question after being directed
to do so by the court in the county in which the deposition is being taken,
the failure may be considered a contempt of that court.
(2) Sanctions by court in which action is pending. If a party or
an officer, director, or managing agent of a party or a person designated
under paragraph (6) of subsection (b) of Code Section 9-11-30 or subsection
(a) of Code Section 9-11-31 to testify on behalf of a party fails to obey
an order to provide or permit discovery, including an order made under
subsection (a) of this Code section or Code Section 9-11-35, the court
in which the action is pending may make such orders in regard to the failure
as are just and, among others, the following:
(A) An order that the matters regarding which the order was made
or any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party obtaining
the order;
(B) An order refusing to allow the disobedient party to supportor
oppose designated claims or defenses, or prohibiting him from introducing
designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the action
or proceeding or any part thereof, or rendering a judgment by default against
the disobedient party;
(D) In lieu of any of the foregoing orders, or in addition thereto,
an order treating as a contempt of court the failure to obey any orders
except an order to submit to a physical or mental examination; or
(E) Where a party has failed to comply with an order under
subsection (a) of Code Section 9-11-35 requiring him to produce
another for examination, such orders as are listed in subparagraphs
(A),(B), and (C) of this paragraph, unless the party failing to
comply shows that he is unable to produce such person for examination.
In lieu of any of the foregoing orders, or in addition thereto,
the court shall require the party failing to obey the order or
the attorney advising him, or both, to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the court finds that the
failure was substantially justified or that other circumstances make an
award of expenses unjust.
(c) Expenses on failure to admit. If a party fails to admit the
genuineness of any document or the truth of any matter as requested under
Code Section 9-11-36 and if the party requesting the admissions thereafter
proves the genuineness of the document or the truth of the matter,
he may apply to the court for an order requiring the other party to pay
him the reasonable expenses incurred in making that proof, including reasonable
attorney's fees. The court shall make the order unless it finds that the
request was held objectionable pursuant to subsection (a) of Code
Section 9-11-36, or the admission sought was of no substantial importance,
or the party failing to admit had reasonable ground to believe thathe might
prevaile on the matter, or there was other good reason forthe failure to
admit.
(d) Failure of party to attend at own deposition or serve answers
to interrogatories or respond to request for inspection.
(1) If a party or an officer, director, or managing agent of a
party or a person designated under paragraph (6) of subsection
(b) of Code Section 9-11-30 or subsection (a) of Code Section
9-11-31 to testify on behalf of a party fails to appear before
the officer who is to take his deposition, after being served
with a proper notice, or fails to serve answers or objections
to interrogatories submitted under Code Section 9-11-33, after
proper service of the interrogatories, or fails to serve a written
response to a request for inspection submitted under Code Section 9-11-34,
after proper service of the request, the court in which the action is pending
on motion may make such orders in regard to the failure as are just; and,
among others, it may take any action authorized under subparagraphs (b)(2)(A)
through (b)(2)(C) of this Code section. In lieu of any order,
or in addition thereto, the court shall require the party failing
to act or the attorney advising him, or both, to pay the reasonable
expenses, including attorney's fees, caused by
the failure, unless the court finds that the failure was substantially
justified or that other circumstances make an award of expenses
unjust.
(2) The failure to act described in the provisions of this chapter
which relate to depositions and discovery may not be excused on the ground
that the discovery sought is objectionable unless the party failing to
act has applied for a protective order as provided by subsection (c) of
Code Section 9-11-26. (Georgia Code, 9-11-37)
Domestic Actions Discovery Notes
If you require extra time to respond to discovery, you should ask
the other side for an extension in writing. It may also be necessary to
enter an order granting the extension to protect your rights.
Discovery questions are limited in number so select the most important
questions to ask the other side. Don't waste your requests writing questions
that you already know the answer to.
