2020 Georgia Code
Title 24 - Evidence
Chapter 13 - Securing Attendance of Witnesses and Production and Preservation of Evidence
Article 2 - Subpoenas and Notice to Produce
§ 24-13-23. Subpoena for Production of Documentary Evidence; Motion to Quash or Modify

Universal Citation: GA Code § 24-13-23 (2020)
  1. A subpoena may also command the person to whom it is directed to produce the evidence designated therein.
  2. The court, upon written motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may:
    1. Quash or modify the subpoena if it is unreasonable and oppressive; or
    2. Condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the evidence.

(Code 1981, §24-13-23, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Cross references.

- Discovery of documentary and tangible evidence generally, § 9-11-34.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, §§ 3514, 3515, former Civil Code 1895, §§ 5255, 5256, former Civil Code 1910, §§ 5844, 5845, former Code 1933, §§ 38-901, 38-902, and former O.C.G.A. § 24-10-22 are included in the annotations for this Code section.

Relevance.

- While admissibility was a matter to be determined when records, documents, or other items were tendered in evidence and was not a test for determining whether an order requiring production should be entered, pertinence or relevance was. Horton v. Huiet, 113 Ga. App. 166, 147 S.E.2d 669 (1966) (decided under former Code 1933, § 38-902).

Required prima facie showing of relevancy under the former statute entailed proof of: (1) the existence of a grand jury investigation; (2) a general characterization of the subject matter and purpose of the investigation; and (3) the fact that each general category of the subpoenaed documents bore some relevance to the investigation being pursued. Morris v. State, 246 Ga. 510, 272 S.E.2d 254 (1980) (decided under former Code 1933, §§ 38-901, 38-902).

"Unreasonable and oppressive" standard was tested by the peculiar facts arising from the subpoena itself and other proper sources. Kamensky v. Southern Oxygen Supply Co., 127 Ga. App. 343, 193 S.E.2d 164 (1972) (decided under former Code 1933, §§ 38-901, 38-902); Aycock v. Household Fin. Corp., 142 Ga. App. 207, 235 S.E.2d 578 (1977); 240 Ga. 570, 241 S.E.2d 835 (1978), cert. dismissed, Washburn v. Sardi's Restaurants, 191 Ga. App. 307, 381 S.E.2d 750 (decided under former Code 1933, §§ 38-901, 38-902); 191 Ga. App. 923, 381 S.E.2d 750 (1989);cert. denied,(decided under former O.C.G.A. § 24-10-22).

Applicable only to court proceedings.

- Former statute providing for quashing or modifying a subpoena upon stated grounds was applicable only to court proceedings and not to investigative procedures. Southeastern Adjusters, Inc. v. Caldwell, 229 Ga. 4, 189 S.E.2d 76 (1972) (decided under former O.C.G.A. § 24-10-22).

Parties.

- Subpoena duces tecum never issued to any one who is a party to the cause. Ex parte Calhoun, 87 Ga. 359, 13 S.E. 694 (1891) (decided under former Code 1882, §§ 3514, 3515).

Grand jury.

- In a proper case, a subpoena duces tecum may have issued in a cause pending before the grand jury to be brought before that body. In re Lester, 77 Ga. 143 (1886) (decided under former Code 1882, §§ 3514, 3515).

Necessity for production.

- Court, before requiring the peremptory order to produce the books or papers of the adverse party, should have satisfied itself of the necessity for such production. Fluker v. Bank of Union Point, 178 Ga. 297, 173 S.E. 149 (1934) (decided under former Code 1933, §§ 38-901, 38-902).

Inauguration of suit.

- Subpoena duces tecum was not process by which to inaugurate a suit, or by which to connect a new party with a pending suit. Ex parte Calhoun, 87 Ga. 359, 13 S.E. 694 (1891) (decided under former Code 1882, §§ 3514, 3515).

Burden of proof.

- An individual moving to quash a grand jury subpoena duces tecum as unreasonable had the general burden of persuasion. Morris v. State, 246 Ga. 510, 272 S.E.2d 254 (1980) (decided under former Code 1933, §§ 38-901, 38-902).

Burden of going forward.

- Regarding the relevancy component of reasonableness, since the secrecy of grand jury deliberations ensured that the party moving to quash a subpoena duces tecum had no precompliance knowledge of the subject matter of the investigation, the party who caused a subpoena duces tecum to issue had the burden of going forward, to make a prima facie showing that the subpoenaed documents are relevant to a legitimate grand jury investigation. Morris v. State, 246 Ga. 510, 272 S.E.2d 254 (1980) (decided under former Code 1933, §§ 38-901, 38-902).

Pleadings.

- An abstract company could not be compelled by a subpoena duces tecum to make discovery of the contents of lost public records in a proceeding to establish a copy of such records since the pleadings did not allege or set out anything whatever as the specific contents to be proved. Ex parte Calhoun, 87 Ga. 359, 13 S.E. 694 (1891) (decided under former Code 1882, §§ 3514, 3515).

Request to modify subpoena properly denied.

- Trial court did not abuse the court's discretion in denying the motion to modify the subpoena, particularly in light of the wide latitude given to make complete discovery possible, the burden on the hospital to show more than that the materials would not themselves be admissible at trial, and the fact that the hospital did not argue that the material was privileged or that the discovery request was burdensome. WellStar Kennestone Hosp. v. Roman, 344 Ga. App. 375, 810 S.E.2d 600 (2018).

Sufficiency of subpoena.

- After a document had been produced under a subpoena duces tecum, the sufficiency of the subpoena as a means of compelling is not a material question in the case. Starr v. Mayer & Co., 60 Ga. 546 (1878) (decided under former Code 1873, § 3514, 3515).

Deletion of privileged matter.

- When any document sought to be produced contained a mixture of privileged and nonprivileged communication or information, ample remedy wais provided to delete privileged matter, and this also would have been within the inherent power of the court. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969) (decided under former Code 1933, §§ 38-901, 38-902).

Subpoena directed to corporation.

- It was proper to issue a subpoena directed simply to a named company, and to have it served upon the general manager of such corporation; the documents called for being in the possession of the manager at the time, it was the manager's duty to respond to the subpoena duces tecum and produce the documents before the grand jury unless the manager desired to test the validity and sufficiency of the subpoena duces tecum by legal means. Jones v. State, 99 Ga. App. 858, 109 S.E.2d 859 (1959) (decided under former Code 1933, §§ 38-901, 38-902).

Subpoena for information on certification of drug dog.

- Trial court improperly granted the state's motion to quash the defendant's subpoena for all records and documents pertaining to the drug detection dog and the dog's handler involved in the detection of drugs in the defendant's luggage because the appellate court could not determine from the existing record whether the training materials were relevant to the issue of reliability of the drug dog as certification of the drug dog on the day of the alert did not preclude a challenge to its reliability; other than the blanket assertion that training materials were irrelevant to show reliability, the state offered no other basis for the state's objection to the subpoena; and the trial court had the discretion to modify the subpoena if the subpoena was overly broad. Harris v. State, 341 Ga. App. 831, 802 S.E.2d 708 (2017).

Interference by third party in ordering individual in possession of corporate documents sought by subpoena duces tecum to turn the documents over to the party for the purpose of concealing, destroying, or otherwise withholding the information therein contained from the grand jury would be an act of contempt which the court would be well authorized to punish. Jones v. State, 99 Ga. App. 858, 109 S.E.2d 859 (1959) (decided under former Code 1933, §§ 38-901, 38-902).

Identical subpoenas served on president and employee of corporation.

- When identical subpoenas directed to a corporation were served upon the president in control of the corporation and an employee having actual custody of the papers, it was perfectly proper for the president to demand and acquire custody of the documents from the president's employee for the purpose of producing the papers in compliance with the subpoena served upon the individual as such president; it did not constitute a contempt of court that the defendant, before complying with the subpoena, saw fit to test its sufficiency by means of a motion to quash, since the defendant did in fact, upon obtaining a ruling by the court adverse to the defendant's contentions, surrender the documents called for by the subpoena. Jones v. State, 99 Ga. App. 858, 109 S.E.2d 859 (1959) (decided under former Code 1933, §§ 38-901, 38-902).

Agent of receiver.

- Fact that the person directed to produce evidence was the agent of the receiver for a railway did not exempt the person from the enforcement of the order for the production of the freight-bills and receipts in the person's possession, where they were material evidence in the investigation of criminal charges against the accused named in certain cases pending before the grand jury. Blitch v. State, 145 Ga. 882, 90 S.E. 42 (1916) (decided under former Civil Code 1910, §§ 5844, 5845).

An entire record could not be removed from one court to another by a notice to the officers to produce the record, or by a subpoena duces tecum directed to and served upon them. In re Lester, 77 Ga. 143 (1886) (decided under former Code 1882, §§ 3514, 3515).

Cell phone records not discoverable.

- Trial court did not abuse the court's discretion in quashing a subpoena for the appellee's cell phone records as those cell phone records were not reasonably calculated to lead to the discovery of admissible evidence under former O.C.G.A. § 24-10-22 (see now O.C.G.A. § 24-13-23) or information relevant to the intrusiveness nature of the behavior alleged to be tortious. Anderson v. Mergenhagen, 283 Ga. App. 546, 642 S.E.2d 105 (2007) (decided under former O.C.G.A. § 24-10-22).

Continuance on ground of absence of witness.

- When the postponement of a case was requested on the ground of the absence of a witness served with a subpoena duces tecum, it was not an abuse of discretion to refuse the request in view of this statute, when it appeared that the witness was a resident of the county and was not served with the subpoena duces tecum ten days prior to the trial of the case. Frost v. Pennington, 6 Ga. App. 298, 65 S.E. 41 (1909) (decided under former Civil Code 1895, §§ 5255, 5256).

Post-judgment discovery.

- It was clear that any forfeiture would not result from the answering of the questions or production of documents, but rather, as a result of a judgment already entered. Any other interpretation of this privilege would make the Georgia post-judgment discovery rules meaningless. Kushner v. Mascho, 143 Ga. App. 801, 240 S.E.2d 290 (1977) (decided under former Code 1933, §§ 38-901, 38-902).

Judgment creditor was authorized to seek bank records of the debtor's wife in post-judgment discovery because the creditor was entitled to seek information that would lead to any property or other sources of income of the debtor; further, the wife had begun paying the husband's country club dues from her bank accounts after the judgment was entered. Hickey v. RREF BB SBL Acquisitions, LLC, 336 Ga. App. 411, 785 S.E.2d 72 (2016).

Mayor, who was ex-officio the presiding judge of a court of record, was not subject to the subpoena duces tecum, commanding the mayor to bring into the superior court "the information docket" of this court, to be used in evidence before the grand jury, either in a specific case or generally. In re Lester, 77 Ga. 143 (1886) (decided under former Code 1882, §§ 3514, 3515).

Request for records of homicides overbroad.

- Request for statistical information contained in notes, books, records, writings, and/or documents pertaining to any and all homicides both solved and unsolved, either committed within the city limits of Atlanta, Fulton County or the surrounding counties in which bodies were found covering a period of almost a decade was overbroad rendering it unreasonable and oppressive. Williams v. State, 251 Ga. 749, 312 S.E.2d 40 (1983) (decided under former O.C.G.A. § 24-10-22).

Subpoena for irrelevant evidence.

- In the personal injury action filed by plaintiff against the pawn shop, the trial court did not err in granting the pawn shop's motion to quash a subpoena for production of the saw that caused the injury at the hearing on the summary judgment motion; the trial court did not abuse the court's discretion under former O.C.G.A. § 24-10-22(b)(1) (see now O.C.G.A. § 24-13-23) in quashing the subpoena since the manner in which the saw was functioning three years after the accident was not relevant. Walker v. Bruhn, 281 Ga. App. 149, 635 S.E.2d 322 (2006) (decided under former O.C.G.A. § 24-10-22).

Court committed reversible error in quashing subpoena for former police officer's personnel file, where anything in the file tending to show training the former officer received which would enable the officer to commit and cover up the crimes of murder, arson, and rape was relevant to defendant's contention that the former officer committed the crimes. Henderson v. State, 255 Ga. 687, 341 S.E.2d 439 (1986) (decided under former O.C.G.A. § 24-10-22).

Quashing of subpoena for gas chromatograph results reversible error.

- Defendant had right to discovery of printed results from gas chromatograph test of defendant's blood alcohol level, and the trial court's quashing of a subpoena seeking such discovery was reversible error. Price v. State, 269 Ga. 222, 498 S.E.2d 262 (1998), recons. denied; overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019) (decided under former O.C.G.A. § 24-10-22).

In a prosecution for driving with an unlawful blood-alcohol level, defendant was entitled to subpoena from the state's forensic chemist the chain of custody documents and other documents which pertained to the actual test of defendant's blood, including gas chromatograph results. Bazemore v. State, 244 Ga. App. 460, 535 S.E.2d 830 (2000) (decided under former O.C.G.A. § 24-10-22).

Documents which pertained to the qualifications of the person who drew defendant's blood and the certification documentation on the machine were not sufficiently relevant to be discovered by defendant in defendant's prosecution for driving with an unlawful blood-alcohol level. Bazemore v. State, 244 Ga. App. 460, 535 S.E.2d 830 (2000) (decided under former O.C.G.A. § 24-10-22).

Motion to quash properly denied to probationer.

- Probationer, who was prohibited from obtaining an investigative file from a sheriff's office by way of a subpoena duces tecum in anticipation of a probation-revocation hearing and, thus, since the probationer met the initial burden of showing that the documents sought were relevant and the subpoena was not unreasonable and oppressive, the trial court did not abuse the court's discretion by denying the motion to quash. In re Whittle, 339 Ga. App. 83, 793 S.E.2d 123 (2016).

Attorney fees for quashing subpoena not permitted.

- Trial judge in a criminal case was not authorized to award attorney fees as compensation in conjunction with an order quashing a subpoena duces tecum pursuant to former O.C.G.A. § 24-10-22 (see now O.C.G.A. § 24-13-23). Garcia v. Allen, 202 Ga. App. 529, 414 S.E.2d 742 (1992) (decided under former O.C.G.A. § 24-10-22).

Motion to quash properly granted.

- Because the allegations in the affidavits of title simply described either the relationship of the parties or other objective facts or circumstances affecting title to the property, and nearly all of those allegations were asserted or confirmed by the property owner either in the property owner's answer to the bank's complaint, the property owner's counterclaim or the property owner's brief on appeal, the trial court did not abuse the court's discretion in effectively granting the motion to quash the subpoena for the bank's counsel and refusing to allow the property owner to question the bank's counsel. Cronan v. JP Morgan Chase Bank, N.A., 336 Ga. App. 201, 784 S.E.2d 57 (2016).

Motion to quash improperly denied.

- When attorneys for a defendant in a capital case served a subpoena regarding the funding of indigent services on the Executive Director of the Georgia Public Defender Standards Council, it was error to deny the Council's motion to quash the subpoena. The documents had no bearing on the defendant's guilt or innocence and were irrelevant to the criminal case; moreover, the general funding that other capital defendants might have received had nothing to do with the funding of the present defendant's specific defense. Britt v. State, 282 Ga. 746, 653 S.E.2d 713 (2007) (decided under former O.C.G.A. § 24-10-22).

Cited in Walker v. State, 323 Ga. App. 558, 747 S.E.2d 51 (2013); Connor v. Oconee Fed. S&L Ass'n, 338 Ga. App. 632, 791 S.E.2d 207 (2016); Martin v. Ledbetter, 342 Ga. App. 208, 802 S.E.2d 432 (2017).

ADVISORY OPINIONS OF THE STATE BAR

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 24-10-22 are included in the annotations for this Code section.

Subpoena issued pursuant to former O.C.G.A. § 24-10-22(a) should only have been issued for actual hearings and trials and should not have been requested when in fact no hearing or trial had been scheduled. Likewise, a subpoena issued pursuant to O.C.G.A. § 9-11-45 of the Civil Practice Act should have been requested and issued only for depositions which have been actually scheduled by agreement between parties or when a notice of deposition had been filed and served upon all parties, and should not be issued when no deposition had been scheduled. Adv. Op. No. 84-40 (September 21, 1984) (decided under former O.C.G.A. § 24-10-22).

There was no need for notice of a subpoena issued pursuant to former O.C.G.A. § 24-10-22(a) because all parties receive notice of hearings and trials, so long as they were real hearings and real trials. Adv. Op. No. 84-40 (September 21, 1984) (decided under former O.C.G.A. § 24-10-22).

RESEARCH REFERENCES

C.J.S.

- 32A C.J.S., Evidence, §§ 1012 et seq., 1023, 1024. 98 C.J.S. (Rev), Witnesses, §§ 6, 67et seq.

ALR.

- Construction and application of provisions of Fair Labor Standards Act regarding investigatory subpoena duces tecum, 166 A.L.R. 553.

Compelling production or authentication for use as evidence of court records or writings or objects in custody of court or officer thereof, 170 A.L.R. 334.

Form, particularity, and manner of designation required in subpoena duces tecum for production of corporate books, records, and documents, 23 A.L.R.2d 862.

Pretrial examination or discovery to ascertain from defendant in action for injury, death, or damages, existence and amount of liability insurance and insurer's identity, 13 A.L.R.3d 822.

Privilege against self-incrimination as ground for refusal to produce noncorporate documents in possession of person asserting privilege, but owned by another, 37 A.L.R.3d 1373.

Right of member, officer, agent, or director of private corporation or unincorporated association to assert personal privilege against self-incrimination with respect to production of corporate books or records, 52 A.L.R.3d 636.

Availability of sole shareholder's Fifth Amendment privilege against self-incrimination to resist production of corporation's books and records--modern status, 87 A.L.R. Fed. 177.

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