Georgia Motion to Compel Discovery

Introduction

Key Things to Know

1. 1

   Georgia asks for two filings, not one. The motion itself asks the superior court for an order compelling an answer, a designation, or inspection under O.C.G.A. Section 9-11-37(a)(2), when a party ignored discovery you served, answered evasively, or objected. Alongside it, Uniform Superior Court Rule 6.4(B) provides that prior to filing a motion seeking resolution of a discovery dispute, counsel for the moving party shall confer with counsel for the opposing party and any objecting person or entity in a good faith effort to resolve the matters involved. The certifying statement is the second paper: at the time of filing the motion, counsel shall also file a statement certifying that such conference has occurred and that the effort to resolve by agreement the issues raised failed. Both of those contents are prescribed, and the rule extends to cases where no discovery has been provided.

2. 2

   Rule 6.4(A) tells you what the motion must contain, and it is a reproduction exercise rather than an argument. A motion to compel discovery in accordance with O.C.G.A. Section 9-11-37 shall quote verbatim, or attach a copy as an exhibit of, each interrogatory, request for admission or request for production to which objection is taken or to which no response or an insufficient response is provided; include the specific objection or response claimed to be insufficient; include the grounds for the objection if not apparent from the objection; and include the reasons supporting the motion. The same subsection binds the other side too: any objections shall be addressed to the specific item and shall not be made generally.

3. 3

   Rule 6.3 is why the first two items are worth real effort. Unless otherwise ordered by the court, motions in civil actions in Georgia are decided by the court without oral hearing, and the narrow exceptions written into the rule are not discovery motions. So the paper you file is normally the whole presentation, and a judge reading it will see each disputed request quoted or attached exactly as Rule 6.4(A) requires. Rule 6.2 gives the party opposing the motion 30 days after service of the motion to serve and file a response, reply memorandum, affidavits or other responsive material. Rule 6.1 requires the motion itself to include or be accompanied by citations of supporting authorities, and supporting affidavits or citations to evidentiary materials of record where unstipulated facts are relied on.

4. 4

   There is a clock on using the court's compulsory process at all, and it is easy to miss because it is not in the motion rule. Uniform Superior Court Rule 5.1, captioned Prompt Completion, provides that in order for a party to utilize the court's compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within six months after the filing of the answer. Where no answer is filed within 30 days of service, or by an extended or ordered date, the six month period begins to run 30 days after service. It is not a waiver and it is not fixed: the same rule says that at any time the court, in its discretion, may open, extend, reopen or shorten the time.

5. 5

   Georgia splits the remedy on whether an order to compel is needed at all. Where some response was served, you move under Section 9-11-37(a)(2), and Section 9-11-37(a)(3) treats an evasive or incomplete answer as a failure to answer. Georgia's version of that deeming provision is wider than most states copied: it applies for purposes of the provisions of the whole chapter relating to depositions and discovery, not just within the one subsection. Where a party served nothing at all, neither answers nor objections, Section 9-11-37(d)(1) lets the court act on motion and take any action authorized under Section 9-11-37(b)(2)(A) through (b)(2)(C), with no prior order to compel, and makes the expense award mandatory on that track too.

6. 6

   The expense award is mandatory in both directions and names the lawyer in both. Section 9-11-37(a)(4)(A) provides that 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 the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees. Section 9-11-37(a)(4)(B) is the mirror: if the motion is denied the court shall require the moving party, or the attorney advising the motion, or both of them, to pay the expenses of opposing it. Only two escapes appear in either limb, substantial justification and other circumstances making an award unjust, where the current federal rule carries three.

7. 7

   Count the clock and check the caps before anything. Section 9-11-33(a)(2) gives 30 days after service of interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint, and Section 9-11-34(b)(2) carries the same pair for a request for inspection. Because all three devices may be served on a party with or after service of the summons and complaint, a defendant served with discovery attached to the complaint owes nothing for 45 days from being served with process. Section 9-11-33(a)(1) caps interrogatories at 50 including subparts, with more only by leave of court on a showing of complex litigation or undue hardship. Uniform Superior Court Rule 5.3 limits a deposition to one day of seven hours unless the court authorizes more or the parties stipulate.

Georgia Requirements for Motion to Compel

• The Rule 6.4(B) Conference, Held Before Filing

  Uniform Superior Court Rule 6.4(B) provides that prior to filing a motion seeking resolution of a discovery dispute, counsel for the moving party shall confer with counsel for the opposing party and any objecting person or entity in a good faith effort to resolve the matters involved. It is phrased as something that happens before the motion exists, not as something described afterwards, and the rule's closing sentence extends it to cases where no discovery has been provided, so receiving nothing at all does not excuse it. Record the date, who took part and what was discussed, because the certifying statement has to speak to it.

• The Separately Filed Statement Certifying the Conference and Its Failure

  This is a second document, not a paragraph in the motion. Rule 6.4(B) requires that at the time of filing the motion, counsel shall also file a statement certifying that such conference has occurred and that the effort to resolve by agreement the issues raised failed. Two contents are prescribed, so a statement that records only the attempt and not its failure does not match the rule. The rule states no penalty for omitting the statement, and none is asserted here. Note the related statutory point, though: Section 9-11-37(a)(4) leaves out the federal escape for a movant who filed without first trying informally to obtain the discovery, so Georgia's expense provision supplies no written answer on that ground.

• Each Disputed Item Quoted Verbatim or Attached, With Its Objection

  Uniform Superior Court Rule 6.4(A) requires a motion to compel discovery in accordance with OCGA Section 9-11-37 to quote verbatim, or attach a copy as an exhibit of, each interrogatory, request for admission or request for production to which objection is taken or to which no response or an insufficient response is provided; to include the specific objection or response claimed to be insufficient; to include the grounds for the objection if not apparent from the objection; and to include the reasons supporting the motion. Build it per item. The same subsection also requires any objections to be addressed to the specific item and not made generally, so flag any blanket objection against the item it was aimed at.

• Which Provision Applies, Section 9-11-37(a)(2) or Section 9-11-37(d)(1)

  A response that arrived and is objected to, evasive or insufficient goes to Section 9-11-37(a)(2), with Section 9-11-37(a)(3) treating an evasive or incomplete answer as a failure to answer for purposes of the whole chapter relating to depositions and discovery. Total silence on interrogatories, a request for inspection, or the party's own noticed deposition goes to Section 9-11-37(d)(1), where the court on motion may take any action authorized under Section 9-11-37(b)(2)(A) through (b)(2)(C) with no prior order to compel, and where the expense award is likewise mandatory. If the target is a nonparty, Section 9-11-34(c)(1) adds a good cause showing and Section 9-11-37(a)(1) may send the application to another county.

• The Two Possible Due Dates, and the Certificate That Proves Them

  Section 9-11-33(a)(2) gives 30 days after service of interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint, and Section 9-11-34(b)(2) carries the same pair for a request for inspection. Because all three devices may be served with or after service of the summons and complaint, discovery that travelled with the initiating papers runs on the 45 day date. Neither clock has a party-stipulation mechanism; only the court may allow a shorter or longer time. Uniform Superior Court Rule 5.2(2) is what makes the computation provable, requiring a certificate to be filed with the court indicating the pleading served, the date of service, or that it was delivered for service with the summons, and the persons served.

• Whether Rule 5.1's Six Month Period Is Still Open

  Uniform Superior Court Rule 5.1 provides that in order for a party to utilize the court's compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within six months after the filing of the answer, with the period beginning 30 days after service where no answer is filed within 30 days of service or by an extended or ordered date. This is not a waiver and not a fixed cutoff: the same rule provides that at any time the court, in its discretion, may open, extend, reopen or shorten the time. Work out the date from the answer, and if it has passed, address the rule rather than ignoring it.

• Citations, Affidavits, and the Fact That There Will Probably Be No Hearing

  Uniform Superior Court Rule 6.1 requires every pretrial motion in a civil action, except one consented to by all parties, to include or be accompanied by citations of supporting authorities and, where allegations of unstipulated fact are relied upon, supporting affidavits or citations to evidentiary materials of record, and requires an e-filing party to notify the opposing parties and the assigned judge by e-mail no later than 24 hours after e-filing. Rule 6.2 gives each opposing party 30 days after service of the motion to serve and file a response on the same terms. Rule 6.3 is the reason to over-prepare the paper: unless otherwise ordered by the court, motions in civil actions are decided without oral argument, and a discovery motion is not among the narrow exceptions.

• The Expense Request, and the Exposure Running at You and Your Lawyer

  Section 9-11-37(a)(4)(A) provides that 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 the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the opposition was substantially justified or other circumstances make an award unjust. The verb is shall, so ask for it. Then read (B), which is the mirror and is unusual in naming the lawyer: if the motion is denied the court shall require the moving party or the attorney advising the motion or both of them to pay the expenses of opposing it, on the same two escapes. Georgia gives only those two, and Section 9-11-37(a)(4)(C) apportions on a split result.