Discovery of Information About the Case Flashcards
Generally: Scope of Discovery
- Scope of Discovery
a. The scope of discovery includes all matters “relevant to the subject matter involved in the pending action,”without
the need to show “good cause” to request any
information beyond that relevant to the claim or defense of a party.
b. Much broader than admissibility.
Depositions: Location
a. A subpoena can compel a deponent to attend an examination:
(1) In a county where the deponent resides, is employed, or transacts his business in person;
(2) In a county in which he is served with a subpoena while
therein; or
(3) At any place not more than 30 miles from the county seat of the county where the witness resides, is employed, or transacts his business in person.
Number of Depositions Allowed
The Georgia rule does not include a limit on the number of depositions that may be taken by a party, and therefore does not require leave to take more than 10 depositions.
When can a Deposition be taken?
A deposition can be taken at any time without leave of court if within 30 days of service of summons and complaint unless you can show there is reason to believe that the witness will be unavailable.
Depositions: Limit on Examination
a. Georgia does not follow the Federal Rule’s limitation to one day of 7 hours for the taking of a deposition.
b. A court may order termination or limitation of the examination upon a showing that: the examination is being conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the
deponent or party.
Use of Depositions at Trial
a. Impeachment
b. Georgia permits use of a witness’s deposition if: the witness is out of the county unless it appears that the absence of the witness was procured by a party offering the deposition.
c. Georgia also permits use of a deposition where:
(1) Because of the nature of the business or occupation of the witness, it is not possible to secure his personal attendance without manifest inconvenience to the
public or third persons; or
(2) Where the witness will be a member of the General Assembly and the session of the General Assembly will conflict with the session of the court in which the case is to be tried.
Written Discovery: Interrogatories
a. Number
(1) Georgia permits 50 interrogatories to be propounded without leave of court, which will be granted only upon a showing of complex litigation or undue hardship.
b. Time Limits for Serving Interrogatories, Answers, and Objections
(1) Interrogatories may, without leave of court, be served upon the plaintiff any time after commencement of the
action.
(2) Answers and objections must be served: within 30 days.
(a) A defendant in Georgia may serve answers or objections within 45 days after service of the summons and complaint upon that defendant.
c. Grounds for Objections
(1) Unlike Fed. R. Civ. P. 33, the Georgia rule does not
require specificity in stating the ground for an objection to interrogatories.
Written Discovery: Requests for Production of Documents, Entry Upon Land- Time limits for serving requests and responses
a. Time Limits for Serving Requests and Responses
(1) The request for these forms of discovery may be
served, without leave of court, upon the plaintiff anytime after commencement of the action, and may be served
upon any other party with or after service of the
summons and complaint upon that party.
(2) Responses and objections must be served: within 30 days.
(a) A defendant in Georgia may serve responses and objections within 45 days after service of the summons and complaint upon that defendant.
Written Discovery: Requests for Production of Documents, Entry Upon Land- Requests to Non-parties
(1) The non-party or any party may file an objection to the request.
(2) To the extent the non-party produces information in response to the request, the party seeking production
must make all reasonable efforts to make the
information available to all parties.
(3) Discovery may also be sought from a non-party who is a practitioner of the healing arts, a hospital, or a health care facility.
(a) Where the request seeks records of a non-party, a copy of the request must be served upon all parties of
record, and the person whose records are sought
(and his counsel, if known).
Written Discovery: Requests for Admission
a. In Georgia, requests for admission may be served,
without leave of court, upon the plaintiff anytime after commencement of the action, and upon any other party with or after service of summons and complaint upon that
party.
b. A party served with requests for admission has 30 days to respond, as in the Federal Rule, before the matter is deemed admitted, but unless the court shortens the time,
a defendant has 45 days to serve answers or objections after service of the summons and complaint upon that defendant.
Physical or Mental Examination
The Georgia rule regarding a physical or mental
examination is nearly identical to the Federal Rule.
Duty to Supplement
- Georgia imposes a lesser duty to supplement or amend discovery responses as new facts are discovered or occur.
- A party is under a duty seasonably to supplement his response with respect to any question directly addressed to:
a. The identity and location of persons having knowledge of discoverable matters; and
b. Expert witnesses – their identity and the subject matter and substance of their 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 a failure to amend the response
would be “a knowing concealment.”
Sanctions
- Unlike the Federal Rule, Georgia does not require
certification of good faith efforts made to obtain the
information requested before moving for a protective order. - Georgia has no provision for failure to participate in framing
a discovery plan, since such plans are not required. - Georgia has no provision for failure to make initial disclosures, since such disclosures are not required.
Expert Witnesses: Testifying Expert
a. In Georgia, discovery of facts known and opinions held by experts and acquired or developed in anticipation of litigation or for trial may be obtained only as follows:
(1) A party may issue interrogatories to any other party to identify all experts expected to be called at trial, and
state the subject matter and substance of their
expected testimony, and the grounds for each opinion.
(2) A party may take the deposition (oral or written) or seek production of documents from an expert, the same as any other witness.
(3) The party seeking discovery must pay a reasonable fee to the expert for his or her time spent responding to the
request, subject to the right of the expert or any party to obtain a determination by the court as to whether the fee is reasonable.
Expert Witnesses: Consulting Expert
a. A party may seek discovery of facts known or opinions held by a non-testifying expert who is retained or specially employed in anticipation of litigation or preparation for trial, only where:
(1) The expert conducted a physical or mental examination
pursuant to court order, in which case a report of the
expert’s findings may be produced; or
(2) The party seeking discovery makes a showing of exceptional circumstances under which it is impracticable for that party to obtain the information by other means.
b. Unless manifest injustice would result:
For discovery sought from a non-testifying expert, the
court will require the party seeking discovery to pay a reasonable fee to the expert for time spent responding to discovery, and to pay the other party a fair portion of the
fees and expenses reasonably incurred by the latter party in obtaining discovery from the expert.
