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
§ 24-13-27. Notice to Produce

Where a party desires to compel production of evidence in the possession, custody, or control of another party, in lieu of serving a subpoena under this article, the party desiring the production may serve a notice to produce upon counsel for the other party. Service may be perfected in accordance with Code Section 24-13-24, but no witness fees or mileage shall be allowed therefor. Such notices may be enforced in the manner prescribed by Code Section 24-13-26, and Code Section 24-13-23 shall also apply to such notices. The notice shall be in writing, signed by the party seeking production of the evidence, or the party's attorney, and shall be directed to the opposite party or his or her attorney.

(Code 1981, §24-13-27, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

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

- For article discussing available means of discovery for criminal cases in Georgia, see 12 Ga. St. B.J. 134 (1976). For note, "Criminal Discovery: The Use of Notices to Produce," see 30 Mercer L. Rev. 331 (1978).

ANALYSIS

• General Consideration
• Criminal Cases

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Laws 1841, Cobb's 1851 Digest, p. 465, former Code 1873, §§ 3508, 3509, 3510, 3511, 3512, 3513, and 3834, former Code 1882, §§ 3508, 3509, 3510, 3511, 3512, 3513, 3834, former Civil Code 1895, §§ 5248, 5249, 5250, 5251, 5252, 5253, and 5254, former Civil Code 1910, §§ 5837, 5838, 5839, 5840, 5841, 5842, 5843, former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, and 38-807, and former O.C.G.A. § 24-10-26 are included in the annotations for this Code section.

- Notice under the former provisions was the appropriate means of procuring the primary evidence, or of laying the foundation for secondary evidence. McAdam v. Weikel & Smith Spice Co., 64 Ga. 441 (1879) (decided under former Code 1873, §§ 3508, 3509, 3510, 3511, 3512, 3513, 3834).

- Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965).

- Papers were produced under notice, when directed to parties or their counsel; when in the possession of others, they must have been reached by a subpoena duces tecum. Wright v. Central R.R. & Banking Co., 21 Ga. 345 (1857) (decided under former Laws 1841, Cobb's 1851 Digest, p. 465); Ex parte Calhoun, 87 Ga. 359, 13 S.E. 694 (1891);.

- Provisions of former statute were applicable to all cases, whether the relief prayed for be legal or equitable. Georgia Iron & Coal Co. v. Etowah Iron Co., 104 Ga. 395, 30 S.E. 878 (1898).

- There was no necessity for a technical description of the papers to have the papers produced; a very general description would have been effectual. Fletcher v. Faust, 22 Ga. 559 (1857).

- Notice to produce should have been specific enough in its demands to relate the documents sought to the questions at issue. Horton v. Huiet, 113 Ga. App. 166, 147 S.E.2d 669 (1966).

- Description was sufficiently definite if the party who was called on to produce or to give an inspection would have been enabled to know what to produce or what the party must give an inspection of. Fluker v. Bank of Union Point, 178 Ga. 297, 173 S.E. 149 (1934).

- Failure to produce material not in possession, control, or custody did not constitute a failure to comply with notice to produce. Gibson v. State, 150 Ga. App. 718, 258 S.E.2d 537 (1979).

- Determination of the materiality of evidence involved the exercise of a judicial function; the conclusion of a witness that the contents of a paper were material, when there was no proof as to what the paper contained, was no proof that the papers sought to be produced were in fact necessary, and could not relieve the court from the duty of passing upon the question of materiality. Central of Ga. Ry. v. Lewis, 2 Ga. App. 428, 58 S.E. 674 (1907).

- Notice to produce was not defective in that the notice did not specifically call for the production of the paper from "term to term," and the party served therewith was not relieved from compliance with the notice because the trial occurred at a term subsequent to the term at which such party was notified to produce the paper. Carrington v. Brooks, 121 Ga. 250, 48 S.E. 970 (1904).

All books covered by the notice to produce must have been produced. American Nat'l Bank v. Brunswick Light & Water Co., 100 Ga. 92, 26 S.E. 473 (1896).

Books which were irrelevant, though produced under notice, were not admissible. Gow v. Charlotte, C. & A.R.R., 68 Ga. 54 (1881).

Motion to produce filed on morning of trial was too late. Williams v. State, 142 Ga. App. 764, 236 S.E.2d 893 (1977).

Motion to produce timely despite expiration of time under Superior Court Rule 5.1. - Plaintiff who served a notice to produce approximately 20 days prior to trial was entitled to have documents produced even though the six-month discovery period provided by Superior Court Rule 5.1 had expired. Gaffron v. Metropolitan Atlanta Rapid Transit Auth., 229 Ga. App. 426, 494 S.E.2d 54 (1997).

- Motions pursuant to O.C.G.A. §§ 9-11-26,9-11-34, and9-11-37 for a protective order or sanctions were not proper vehicles for the quashing or the enforcement of a former O.C.G.A. § 24-10-26 notice to produce. Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 353 S.E.2d 548 (1987).

Motions to compel and for sanctions were not proper vehicles for the enforcement of a notice to produce. Bergen v. Cardiopul Medical, Inc., 175 Ga. App. 700, 334 S.E.2d 28 (1985).

Trial court did not have the discretion to hold that a notice to produce under former O.C.G.A. § 24-10-26 had been converted into a request for production under O.C.G.A. § 9-11-34. Bergen v. Cardiopul Medical, Inc., 175 Ga. App. 700, 334 S.E.2d 28 (1985).

Criminal Cases

1. In General

- See Brown v. State, 238 Ga. 98, 231 S.E.2d 65 (1976) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807); Phillips v. State, 146 Ga. App. 423, 246 S.E.2d 438 (1978); Natson v. State, 242 Ga. 618, 250 S.E.2d 420 (1978) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807); Watson v. State, 147 Ga. App. 847, 250 S.E.2d 540 (1978); Crosby v. State, 150 Ga. App. 804, 258 S.E.2d 593 (1979) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807); Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980); Jackson v. State, 158 Ga. App. 530, 281 S.E.2d 252 (1981) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807);(decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807);(decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807);(decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807).

- Former statute applied not only to the obligation of the state to produce certain items, but also applied to any party who desired to compel production of books, writings, or other documents or tangible things in the possession, custody, or control of another party; accordingly, the state had as much right to utilize the former statute as a defendant. Phillips v. State, 146 Ga. App. 423, 246 S.E.2d 438 (1978) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807).

- Sanctioning the state's resort to the former statute in compelling a defendant to produce specific property for use as evidence against the defendant would have been unconstitutional. Johnson v. State, 156 Ga. App. 496, 274 S.E.2d 837 (1980).

- State may not have used a notice to produce to reseize property and redivest the defendant of custody and possession by retaining the property and using the property as evidence in a criminal proceeding; unconstitutional self-incrimination would have been the result of compliance with the state's notice. Johnson v. State, 156 Ga. App. 496, 274 S.E.2d 837 (1980).

- Proper standard of materiality must have reflected the overriding concern with the justice of the finding of guilt. Such a finding was permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence created a reasonable doubt that did not otherwise exist, constitutional error had been committed. This means that the omission must have been evaluated in the context of the entire record. If there was no reasonable doubt about guilt whether or not the additional evidence was considered, there was no justification for a new trial. On the other hand, if the verdict was already of questionable validity, additional evidence of relatively minor importance might have been sufficient to create a reasonable doubt. Smith v. State, 248 Ga. 507, 284 S.E.2d 406 (1981).

- Although an accused may have utilized the notice to produce provision of the former statute to compel the production of tangible objects and documents at trial, discovery as such was not available to an accused in criminal cases in Georgia. Howard v. State, 144 Ga. App. 208, 240 S.E.2d 908 (1977) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807); Pryor v. State, 238 Ga. 698, 234 S.E.2d 918; 434 U.S. 935, 98 S. Ct. 422, 54 L. Ed. 2d 294 (1977), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006), cert. denied, Toole v. State, 146 Ga. App. 305, 246 S.E.2d 338 (1978) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807);.

- Notice to produce under former O.C.G.A. § 24-10-26 could not be used as a discovery tool to circumvent discovery reciprocity under the discovery act. Farmer v. State, 222 Ga. App. 506, 474 S.E.2d 711 (1996) (decided under former O.C.G.A. § 24-10-26); McGuire v. State, 243 Ga. App. 899, 534 S.E.2d 549 (2000);.

- Notice to produce in a criminal case was not as all-inclusive as a request to produce discoverable evidence under the Civil Practice Act. Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 901, 66 L. Ed. 2d 830 (1981).

There was no absolute right to examine original evidence; the motion for an independent examination must have been timely made, and the accused must have shown that the original evidence was materially favorable to the accused. Brooks v. State, 141 Ga. App. 725, 234 S.E.2d 541 (1977).

Criminal defendant had burden of showing how defendant's case had been materially prejudiced by failure to produce even when trial court declined to make an in camera inspection. Patterson v. State, 154 Ga. App. 877, 270 S.E.2d 86 (1980).

- On motion for production of specific material, the defendant must have been furnished exculpatory information; i.e., information favorable to the defendant and material either to guilt or punishment. When a motion was made and the prosecutor did not make the specified material available to defense counsel, the trial judge should have made an in camera inspection of the material sought. On motion by the defendant the material examined in camera should either have been sealed and filed, or an inventory or record of the examined material made so as to permit appellate review. Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 901, 66 L. Ed. 2d 830 (1981).

- Prosecution did not suppress evidence by refusing to conduct a search for the evidence, even though the evidence may have been more accessible to the state than to the defense. Baker v. State, 245 Ga. 657, 266 S.E.2d 477 (1980).

- Fourth Amendment right of the victim of a crime to be secure against an unreasonable search must have prevailed over the right of the accused to obtain evidence for the accused's defense. State v. Haynie, 240 Ga. 866, 242 S.E.2d 713 (1978).

- It was within the sound discretion of a trial court whether to require the state to disclose to the defendant the name and address of a confidential informant. Clayton v. State, 145 Ga. App. 541, 244 S.E.2d 67 (1978).

2. Items Not Subject to Notice to Produce

Material not in state's possession was not subject to a notice to produce.

- Ferrell v. State, 149 Ga. App. 405, 254 S.E.2d 404 (1979), cert. denied, 444 U.S. 1021, 100 S. Ct. 679, 62 L. Ed. 2d 653 (1980) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807); Patterson v. State, 154 Ga. App. 877, 270 S.E.2d 86 (1980);.

When the materials sought by defendant were not types of items reasonably expected to be found in the custody of the solicitor (now district attorney) preparing the case against the defendant and such evidence could have been obtained only if the prosecution actively sought the evidence, thereby causing the state to investigate the case for the defense, the trial court did not err in denying the defendant's motion to produce such evidence or in denying the motion for continuance based upon the absence of the materials in the courtroom at the time of trial. Fletcher v. State, 157 Ga. App. 707, 278 S.E.2d 444 (1981).

In a prosecution for homicide by vehicle, it was not error to deny the defendant's motion to produce the deceased's automobile, absent a showing that the automobile was in the state's possession, custody, or control. Wheat v. State, 171 Ga. App. 583, 320 S.E.2d 808 (1984).

State was not required to produce documents pursuant to defendants' motions, since the materials sought were not of the type reasonably expected to be found in the custody of the solicitor (now district attorney) preparing the case. Dixon v. State, 196 Ga. App. 15, 395 S.E.2d 577 (1990).

In a prosecution for driving under the influence, the state was not required to comply with defendant's notice to produce documents relating to the Intoxilyzer because such materials are not reasonably expected to be found in the possession, custody, or control of the prosecutor. Maurer v. State, 240 Ga. App. 145, 525 S.E.2d 104 (1999).

- Notice to produce could not be used in a criminal case to require the production of the district attorney's work product; reports, memoranda, and documents in the files of law enforcement officers; addresses and telephone numbers of the state's witnesses; or the names and addresses of other persons with knowledge of the facts. Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 901, 66 L. Ed. 2d 830 (1981).

- Defendant in a criminal case did not have the right to inspect the file of the district attorney before the defendant was put on trial. White v. State, 230 Ga. 327, 196 S.E.2d 849, appeal dismissed, 414 U.S. 886, 94 S. Ct. 222, 38 L. Ed. 2d 134 (1973).

Notice to produce could not be used to enable defense counsel to examine, in advance of trial or evidentiary hearing, the contents of the district attorney's file. Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 901, 66 L. Ed. 2d 830 (1981).

Defendant's diaries, which were in the state's possession, were not a proper subject of discovery under former O.C.G.A. § 24-10-26 (now see O.C.G.A § 24-13-27). Sims v. State, 251 Ga. 877, 311 S.E.2d 161 (1984).

- State was under no duty to provide defense counsel a prior contradictory statement of defendant which impeached defendant because the statement was neither exculpatory nor likely to be used in evidence by the defense. Farmer v. State, 222 Ga. App. 506, 474 S.E.2d 711 (1996).

Photos of the crime scene not presented in evidence by the state and not exculpatory were not subject to discovery. Sims v. State, 251 Ga. 877, 311 S.E.2d 161 (1984).

Statements of witnesses in the prosecutor's files, if nothing more appeared, may not have been reached by statutory provisions on notice to produce. Stevens v. State, 242 Ga. 34, 247 S.E.2d 838 (1978) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807); Spain v. State, 243 Ga. 15, 252 S.E.2d 436 (1979); Holton v. State, 243 Ga. 312, 253 S.E.2d 736 (1979) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807); Hamby v. State, 243 Ga. 339, 253 S.E.2d 759 (1979); Stanley v. State, 153 Ga. App. 42, 264 S.E.2d 533 (1980) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807); Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980); Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807); 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982); Hill v. State, 161 Ga. App. 346, 287 S.E.2d 779 (1982) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807); Holbrook v. State, 162 Ga. App. 400, 291 S.E.2d 729 (1982); Ivester v. State, 252 Ga. 333, 313 S.E.2d 674 (1984) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807); Pittman v. State, 175 Ga. App. 50, 332 S.E.2d 356 (1985);cert. denied,(decided under former O.C.G.A. § 24-10-26);(decided under former O.C.G.A. § 24-10-26);(decided under former O.C.G.A. § 24-10-26);(decided under former O.C.G.A. § 24-10-26);.

Witness statements have never been subject to a notice to produce, although exculpatory witness statements were subject to disclosure, if requested under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Welch v. State, 251 Ga. 197, 304 S.E.2d 391 (1983) (decided under former O.C.G.A. § 24-10-26); Ivester v. State, 252 Ga. 333, 313 S.E.2d 674 (1984);.

Pretrial statements of state's witnesses were not within the ambit of former O.C.G.A. § 24-10-26 (now see O.C.G.A. § 24-13-27) notice to produce. Ford v. State, 256 Ga. 375, 349 S.E.2d 361 (1986).

- Failure to produce a photo array which was displayed to an eyewitness before the array was introduced at trial did not violate former O.C.G.A. § 24-10-26 (now see O.C.G.A § 24-13-27) since the array and the identification pursuant to it were used as evidence on behalf of the state, and were not needed by the defendant as evidence in support of the defendant's defense. Gilstrap v. State, 256 Ga. 20, 342 S.E.2d 667 (1986).

Trial court did not err in admitting two photographs of a rape victim when, although the state had not supplied the photographs in response to defendant's pretrial notice to produce, the photographs were used as evidence on behalf of the state and were not needed by defendant as evidence in support of defendant's defense. Sweetenburg v. State, 197 Ga. App. 36, 397 S.E.2d 451 (1990).

Police surveillance videotape was not subject to discovery since the tape was not needed for use as evidence on the defendant's behalf and was only introduced on re-direct examination to rehabilitate the testimony of a witness. Deal v. State, 199 Ga. App. 184, 404 S.E.2d 343 (1991).

- When no exculpatory material was suppressed, there was no requirement that the prosecution allow discovery of a statement of a person who was not a trial witness. Crosby v. State, 150 Ga. App. 804, 258 S.E.2d 593 (1979).

- Tape recording of a drug transaction was not discoverable pursuant to former O.C.G.A. § 24-10-26 nor under § 17-7-210 [repealed], since the recording was not of any taped statement given by the defendant while in police custody, nor under former § 17-7-211, since the tape recording did not constitute a written scientific report. Weldon v. State, 204 Ga. App. 221, 419 S.E.2d 59 (1992) (decided under former O.C.G.A. § 24-10-26).

- Former statute did not require a district attorney to open the district attorney's files to the attorney for the accused, nor was the accused entitled as a matter of right to receive copies of police reports and investigation reports made in the course of preparing the case against the client. Stevens v. State, 242 Ga. 34, 247 S.E.2d 838 (1978), cert. denied, 449 U.S. 891, 101 S. Ct. 251, 66 L. Ed. 2d 118 (1980).

There was no Georgia procedure requiring the district attorney to open the district attorney's files to the accused, nor was the accused entitled as a matter of right to receive copies of police reports and investigation reports made in the course of preparing the case against the accused. Baker v. State, 245 Ga. 657, 266 S.E.2d 477 (1980).

Reports and summaries made by police investigators were not the types of "books, writings or other documents or tangible things" subject to a notice to produce. Carter v. State, 150 Ga. App. 119, 257 S.E.2d 11 (1979) (decided under former Code 1933, §§ 38-801, 38-802, 38-803, 38-804, 38-805, 38-806, 38-807); Bennett v. State, 158 Ga. App. 421, 280 S.E.2d 429 (1981);.

- Computer data upon which an intoximeter test was based were not the types of items reasonably expected to be found in the "custody" of the solicitor (now district attorney) preparing the case against the defendant. Ross v. State, 192 Ga. App. 850, 386 S.E.2d 721 (1989).

- Defendant having "moved to suppress" the evidence by virtue of contesting the libel for condemnation of former Code 1933, § 79A-828 (see now O.C.G.A. § 16-13-49) and the state having failed to meet the state's burden in that regard, the state may not use the notice to produce to "reseize" the property for evidentiary purposes. Johnson v. State, 156 Ga. App. 496, 274 S.E.2d 837 (1980).

- State could not, under any theory, be deemed to have in the state's possession a bullet lodged in the body of a victim of a crime, and the state did not have any more right to require the removal of a bullet from the body of a living victim than did the accused. State v. Haynie, 240 Ga. 866, 242 S.E.2d 713 (1978).

3. Items Subject to Notice to Produce

Admissible and necessary evidence.

- Notices to produce could be used in a criminal case "to compel production of books, writings or other documents or tangible things in the possession, custody or control" of the opposite party (district attorney and investigating officers), for use at trial or at a pretrial evidentiary hearing, when such books, etc., would be admissible and were needed for use as evidence on behalf of the defendant. Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 901, 66 L. Ed. 2d 830 (1981).

- Accused may have used the notice to produce provision to compel the production of tangible objects and documents at trial. Brooks v. State, 141 Ga. App. 725, 234 S.E.2d 541 (1977).

- Notice to produce was available in criminal cases for more than the limited purpose of obtaining a copy of the accusation and list of witnesses already available under former Code 1933, § 27-1403 [repealed]. Brown v. State, 238 Ga. 98, 231 S.E.2d 65 (1976).

- Defendant was entitled to discovery of all exculpatory matter and anything in the district attorney's file which was favorable to defendant's defense. Maddox v. State, 136 Ga. App. 370, 221 S.E.2d 231 (1975).

- Prosecutor was under a duty to furnish the defendant, without request, material which created a reasonable doubt as to the defendant's guilt. Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 901, 66 L. Ed. 2d 830 (1981).

Cited in 915 Indian Trail, LLC v. State Bank & Trust Co., 328 Ga. App. 524, 759 S.E.2d 654 (2014).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 24-10-26 are included in the annotations for this Code section.

Law enforcement officer who was covered by the Fair Labor Standards Act of 1938 would not be entitled to the witness fee established by former O.C.G.A. § 24-10-26 for testifying during "off-duty" hours. 1986 Op. Att'y Gen. No. U86-26 (decided under former O.C.G.A. § 24-10-26).

RESEARCH REFERENCES

C.J.S.

- 32A C.J.S., Evidence, § 755.

- Right of accused in state courts to inspection or disclosure of evidence in possession of prosecution, 7 A.L.R.3d 8.

Right of defendant in criminal case to inspection of statement of prosecution's witness for purposes of cross-examination or impeachment, 7 A.L.R.3d 181.