2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 5 - Depositions and Discovery
§ 9-11-26. General Provisions Governing Discovery

1. Discovery methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under subsection (c) of this Code section, the frequency of use of these methods is not limited.
2. Scope of discovery. Unless otherwise limited by order of the court in accordance with this chapter, the scope of discovery is as follows:
   1. IN GENERAL. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. 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;
   2. INSURANCE AGREEMENTS. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement;
   3. TRIAL PREPARATION; MATERIALS. Subject to paragraph (4) of this subsection, a party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (1) of this subsection and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. A party may obtain, without the required showing, a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain, without the required showing, a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. Paragraph (4) of subsection (a) of Code Section 9-11-37 applies to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a "statement previously made" is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded; and
   4. TRIAL PREPARATION; EXPERTS. Discovery of facts known and opinions held by experts, otherwise discoverable under paragraph (1) of this subsection and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
      1. 1. 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.
         2. A party may obtain discovery under Code Section 9-11-30, 9-11-31, or 9-11-34 from any expert described in this paragraph, the same as any other witness, but the party obtaining discovery of an expert hereunder must pay a reasonable fee for the time spent in responding to discovery by that expert, subject to the right of the expert or any party to obtain a determination by the court as to the reasonableness of the fee so incurred;
      2. A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in subsection (b) of Code Section 9-11-35 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means; and
      3. Unless manifest injustice would result:
         1. The court shall require the party seeking discovery to pay the expert a reasonable fee for time spent in responding to discovery under subparagraph (B) of this paragraph; and
         2. With respect to discovery obtained under division (ii) of subparagraph (A) of this paragraph, the court may require, and with respect to discovery obtained under subparagraph (B) of this paragraph the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
3. Protective orders. Upon motion by a party or by the person from whom discovery is sought and for good cause shown, the court in which the action is pending or, alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
   1. That the discovery not be had;
   2. That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
   3. That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
   4. That certain matters not be inquired into or that the scope of the discovery be limited to certain matters;
   5. That discovery be conducted with no one present except persons designated by the court;
   6. That a deposition, after being sealed, be opened only by order of the court;
   7. That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; or
   8. That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

      If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. Paragraph (4) of subsection (a) of Code Section 9-11-37 applies to the award of expenses incurred in relation to the motion.

4. Sequence and timing of discovery. Unless the court, upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence; and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.
5. 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 to include information thereafter acquired, except as follows:
   1. A party is under a duty seasonably to supplement his response with respect to any question directly addressed to:
      1. The identity and location of persons having knowledge of discoverable matters; and
      2. 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.
   2. A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which:
      1. He knows that the response was incorrect when made; or
      2. 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.
   3. A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.

(Ga. L. 1966, p. 609, § 26; Ga. L. 1967, p. 226, § 13; Ga. L. 1972, p. 510, § 1; Ga. L. 1984, p. 22, § 9; Ga. L. 1987, p. 3, § 9; Ga. L. 1993, p. 91, § 9.)

- Protection of communications between victim assistance personnel and victims, § 17-17-9.1.

Expert opinion testimony in criminal cases, § 24-7-707.

For further provisions regarding depositions, § 24-10-110 et seq.

- Pursuant to Code Section in 1985, a comma was inserted following "parties" in paragraph (e)(3).

- For provisions of Federal Rules of Civil Procedure, Rule 26, see 28 U.S.C.

- For article, "Discovery Proceedings from the Defendant's Point of View," see 26 Ga. B.J. 143 (1963). For article comparing sections of the Georgia Civil Practice Act with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For article surveying developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For article, "Ex Parte Communications with an Opponent's Employees and Expert Witnesses: Which Potential Witnesses Can a Lawyer Talk to Without Breaking the Rules?," see 27 Ga. St. B.J. 6 (1990). For annual survey on trial practice and procedure, see 42 Mercer L. Rev. 469 (1990). For article, "Automatic Disclosure in Discovery - The Rush to Reform," see 27 Ga. L. Rev. 1 (1992). For article, "In Defense of Automatic Disclosure in Discovery," see 27 Ga. L. Rev. 655 (1993). For article, "In Defense of Experimentation with Automatic Disclosure," see 27 Ga. L. Rev. 665 (1993). For annual survey article on evidence law, see 52 Mercer L. Rev. 263 (2000). For article, "Alleviating the Pain of Electronic Discovery: Prospective Consideration of the Zubulake Factors," see 9 Ga. St. B.J. 24 (2004). For article, "Georgia's New Expert Witness Rule: Daubert and More," see 11 Ga. St. B.J. 16 (No. 2, 2005). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For annual survey on torts law, see 66 Mercer L. Rev. 189 (2014). For annual survey on electronic discovery, see 69 Mercer L. Rev. 1109 (2018). For note discussing discovery and lawyer's work product exemption, see 24 Ga. B.J. 548 (1962). For note discussing discovery proceedings available to creditors, see 12 Ga. L. Rev. 814 (1978). For note, "Preferential Treatment of the United States under Federal Civil Discovery Procedures," see 13 Ga. L. Rev. 550 (1979). For note, "Conflicts of Interest in the Liability Insurance Setting," see 13 Ga. L. Rev. 973 (1979). For comment, "A Study of the Georgia Statutes Relating to Discovery of Documents in Civil Actions," see 2 Ga. St. B.J. 361 (1966). For case comment, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986).

ANALYSIS

• General Consideration
• Scope of Discovery
• Trial Preparation Materials
• Experts
• Protective Orders
• Supplementation of Responses

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 38-1101, and former Code 1933, Ch. 21, T. 38 are included in the annotations for this Code section.

Georgia Laws 1972, p. 510, made substantial revisions to certain sections of this chapter dealing with discovery. Prior to the 1972 amendment, this section was substantially the same as former Code 1933, § 38-2101. Hence, decisions based on this Code section prior to its 1972 amendment should be consulted with care.

For additional cases decided under this Code section prior to its amendment by Ga. L. 1972, p. 510, § 1, relating to the use of depositions, see annotations under § 9-11-32.

Georgia Laws 1972, p. 510, entirely superseded the former version of this section, the purpose being to conform the discovery provisions of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) to the 1970 amendments to the Federal Rules of Civil Procedure. Georgia Int'l Life Ins. Co. v. Boney, 139 Ga. App. 575, 228 S.E.2d 731 (1976).

- Purpose of deposition-discovery procedure is not only to ascertain facts, but also to determine what the adverse party contends they are and what purpose they will serve so that the issues may be narrowed, the trial simplified, and time and expense conserved. Setzers Super Stores of Ga., Inc. v. Higgins, 104 Ga. App. 116, 121 S.E.2d 305 (1961) (decided under former Code 1933, Ch. 21, T. 38); Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-2109).

Discovery is specifically designed to fulfill a two-fold purpose: issue formulation and factual revelation. Travis Meat & Seafood Co. v. Ashworth, 127 Ga. App. 284, 193 S.E.2d 166 (1972); International Serv. Ins. Co. v. Bowen, 130 Ga. App. 140, 202 S.E.2d 540 (1973); Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

Broad purpose of discovery rules is to enable parties to prepare for trial so that each party will know the issues and be fully prepared on the facts. Travis Meat & Seafood Co. v. Ashworth, 127 Ga. App. 284, 193 S.E.2d 166 (1972); International Serv. Ins. Co. v. Bowen, 130 Ga. App. 140, 202 S.E.2d 540 (1973); Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975).

Rules of discovery under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) are designed to narrow and clarify the issues and to remove the potential for secrecy and hiding of material that existed under the previous system; in particular, such rules are designed to provide parties with the opportunity to obtain material knowledge of all relevant facts thereby reducing the element of surprise at trial. Hanna Creative Enters., Inc. v. Alterman Foods, Inc., 156 Ga. App. 376, 274 S.E.2d 761 (1980).

- Use of the discovery process has been held to be broadly construed. Travis Meat & Seafood Co. v. Ashworth, 127 Ga. App. 284, 193 S.E.2d 166 (1972); International Serv. Ins. Co. v. Bowen, 130 Ga. App. 140, 202 S.E.2d 540 (1973).

Broad use of discovery favors supplying a party with the facts underlying the opponent's case, without reference to whether the facts sought are admissible at trial. Setzers Super Stores of Ga., Inc. v. Higgins, 104 Ga. App. 116, 121 S.E.2d 305 (1961) (decided under former Code 1933, Ch. 21, T. 38).

- Even though the issue of liability was resolved by a driver's default, the question of damages remained; the driver was entitled to introduce evidence as to damages and the driver had the right to engage in discovery. Russaw v. Burden, 272 Ga. App. 632, 612 S.E.2d 913 (2005).

- Trial court did not err in dismissing the shareholder's derivative action filed by the shareholder as it was within the trial court's discretion to dismiss the action once the shareholder failed to initiate discovery to determine whether the report filed by the special litigation committee that responded to the shareholder's claims of corporate improprieties and which concluded that the shareholder's claims were meritless was made in good faith and properly concluded that pursuing a lawsuit against the corporation was not in the corporation's best interests. Thompson v. Scientific Atlanta, Inc., 275 Ga. App. 680, 621 S.E.2d 796 (2005).

- Trial court did not abuse the court's discretion by denying a motion to compel discovery before ruling on an investor's motion for summary judgment because, although no express order was entered by the trial court denying the motion to compel discovery, it was not presumed that the trial court failed to consider the motion to compel before ruling on summary judgment, but rather, it was presumed that the trial court implicitly denied the motions to compel upon entering summary judgment; assuming the trial court properly exercised the court's discretion to delay the hearing on the motion for summary judgment and extend the time allowing a financial advisor to take depositions, there is no evidence that the advisor made any effort to schedule the depositions before the trial court rescheduled the hearing. Tyler v. Thompson, 308 Ga. App. 221, 707 S.E.2d 137 (2011).

- There was no abuse of discretion in the trial court's denial of a client's motion to reopen discovery given the length of time the case had been pending and the client's failure to specify the evidence the client hoped to obtain during discovery; the client did not detail any discovery the client needed to obtain. Quarterman v. Cullum, 311 Ga. App. 800, 717 S.E.2d 267 (2011), cert. denied, No. S12C0297, 2012 Ga. LEXIS 179 (Ga. 2012); cert. dismissed, U.S. , 133 S. Ct. 388, 184 L. Ed. 2d 10 (2012).

There is no territorial limitation in the discovery statutes as to location of witnesses, documents, assets, etc. Thrift v. Vi-Vin Prods., Inc., 134 Ga. App. 717, 215 S.E.2d 709 (1975).

Nonresident who files a lawsuit in Georgia may, in the court's discretion, be compelled to give a deposition in Georgia. Warehouse Home Furn. Distrib., Inc. v. Davenport, 261 Ga. 853, 413 S.E.2d 195 (1992).

Wide latitude is given to make complete discovery possible. Travis Meat & Seafood Co. v. Ashworth, 127 Ga. App. 284, 193 S.E.2d 166 (1972).

- Trial court has the power under O.C.G.A. § 9-11-26 to control the details of time, place, scope, and financing of a deposition for the protection of the deponents and parties. Bicknell v. CBT Factors Corp., 171 Ga. App. 897, 321 S.E.2d 383 (1984).

- Award of sanctions in the form of attorney fees against a heating system installer that failed to produce an officer for deposition, despite a court order, was proper under §§ 9-11-37(b)(2), as the sanctions were proper despite the fact that there was no order under § 9-11-37(a) or O.C.G.A. § 9-11-26(c), the failure to appear was not substantially justified, and the amount awarded was not excessive. Carrier Corp. v. Rollins, Inc., 316 Ga. App. 630, 730 S.E.2d 103 (2012).

- Policy of the appellate courts of this state is not to interfere with trial judge's broad discretion granted under the discovery provisions of this section. Vaughn & Co. v. Saul, 143 Ga. App. 74, 237 S.E.2d 622 (1977).

- Supreme Court will not reverse a trial court's decision on discovery matters absent a clear abuse of discretion. Ambassador College v. Goetzke, 244 Ga. 322, 260 S.E.2d 27 (1979), cert. denied, 444 U.S. 1079, 100 S. Ct. 1029, 62 L. Ed. 2d 762 (1980).

- Discovery is available to the parties litigant in a contempt of court case. Hill v. Bartlett, 124 Ga. App. 56, 183 S.E.2d 80 (1971), overruled on other grounds, In re Crane, 253 Ga. 667, 324 S.E.2d 443 (1985).

- Statute is not applicable to workers' compensation claims unless made so by the statute pertaining specifically to workers' compensation claims. National Biscuit Co. v. Martin, 225 Ga. 198, 167 S.E.2d 140 (1969). But see § 34-9-102(d)(1), now providing that discovery procedures in hearings of such claims be governed by this chapter.

- When testimony of purported "surprise" witness not named in discovery process was merely cumulative of other testimony adduced at trial, any error in allowing the witness to testify was harmless. Glennville Hatchery, Inc. v. Thompson, 164 Ga. App. 819, 298 S.E.2d 512 (1982).

- When a party asserts the privilege against self-incrimination concerning matters sought to be discovered, the party must respond to each question asked, asserting the privilege to those questions the party deems necessary. Axson v. National Sur. Corp., 254 Ga. 248, 327 S.E.2d 732 (1985).

Defendant was properly held in civil contempt for violating a consent interlocutory injunction by failing to answer questions under oath in discovery proceedings because the defendant could not, by invoking the privilege against self-incrimination, prevent enforcement of the very order to which the defendant consented. In re Purohit, 213 Ga. App. 182, 444 S.E.2d 133 (1994).

- In a civil premises liability action arising from a sexual assault on a minor, in which a manager sought production of a videotape of the assault made by the assailants, O.C.G.A. § 16-12-100(b)(5) did not criminalize the act of producing the tape in response to a court order or a request for discovery, and the trial court erred in holding otherwise. Alexander Props. Group, Inc. v. Doe, 280 Ga. 306, 626 S.E.2d 497 (2006).

- Record supported the trial court's judgment that a corporation waived work product protection when the corporation shared documents with the Securities and Exchange Commission (SEC) during the SEC's investigation of allegations involving securities fraud, and the trial court did not err when the court granted a motion to compel discovery which was filed by parties who owned shares in the corporation, even though the corporation and the SEC had signed a confidentiality agreement. McKesson Corp. v. Green, 266 Ga. App. 157, 597 S.E.2d 447 (2004).

Majority of jurisdictions that have considered the issue have determined that the burden of proving a waiver of work-product protection lies on the party asserting the waiver; however, in an action by shareholders based on stock losses following corporate acquisition of another company, the trial court neither explicitly or implicitly placed the burden of showing non-waiver of the work-product protection on a buyer. McKesson Corp. v. Green, 279 Ga. 95, 610 S.E.2d 54 (2005).

- Asserted need to protect the privacy of the internally generated personnel records and evaluations of allegedly negligent employees is not sufficient to render the material privileged from discovery as a matter of law. DeLoitte Haskins & Sells v. Green, 187 Ga. App. 376, 370 S.E.2d 194, cert. denied, 187 Ga. App. 907, 370 S.E.2d 194 (1988).

- Order requiring a liability insurer to produce the insurer's entire claims file was proper when privileged information was specifically excluded and the insurer did not contest the relevancy of the material. International Indem. Co. v. Saia Motor Freight Line, 223 Ga. App. 544, 478 S.E.2d 776 (1996).

- Michigan order, by facially prohibiting former corporate litigation consultant from testifying as to matters outside the scope of any privilege, violated Georgia public policy; therefore, the full faith and credit clause did not require the federal district court in Georgia to give full effect to the Michigan Court order. Williams v. GMC, 147 F.R.D. 270 (S.D. Ga. 1993).

- Trial court erred in concluding that a confidential settlement agreement, even if incorporated as another court's final order, can operate to preclude discovery by Georgia litigants of the parties to that confidential settlement agreement. Barger v. Garden Way, Inc., 231 Ga. App. 723, 499 S.E.2d 737 (1998).

- Motorist's suit was properly dismissed under O.C.G.A. § 9-11-37(d), as the motorist failed to attend any of three scheduled depositions that were properly noticed under O.C.G.A. § 9-11-30(b)(1), defense counsel was not required to address the motorist's proposed discovery plan, and counsel's failure to do so did not excuse the motorist's failure to attend the depositions. Pascal v. Prescod, 296 Ga. App. 359, 674 S.E.2d 623 (2009).

Cited in Hunter v. A-1 Bonding Serv., Inc., 118 Ga. App. 498, 164 S.E.2d 246 (1968); Neal v. Smith, 226 Ga. 96, 172 S.E.2d 684 (1970); Herring v. R.L. Mathis Cert. Dairy Co., 121 Ga. App. 373, 173 S.E.2d 716 (1970); Royal Globe Indem. Co. v. Thompson, 123 Ga. App. 268, 180 S.E.2d 576 (1971); Johnson v. O'Donnell, 123 Ga. App. 375, 181 S.E.2d 291 (1971); Ward v. Smith, 228 Ga. 137, 184 S.E.2d 592 (1971); Terminal Transp. Co. v. Burger Chef Sys., 127 Ga. App. 535, 194 S.E.2d 333 (1972); Household Fin. Corp. v. Ensley, 127 Ga. App. 876, 195 S.E.2d 236 (1973); Ford Motor Co. v. Hanley, 128 Ga. App. 311, 196 S.E.2d 454 (1973); Rary v. Guess, 129 Ga. App. 102, 198 S.E.2d 879 (1973); Retail Credit Co. v. United Family Life Ins. Co., 130 Ga. App. 524, 203 S.E.2d 760 (1974); Smith v. Bass, 131 Ga. App. 557, 206 S.E.2d 541 (1974); Thomas v. Home Credit Co., 133 Ga. App. 602, 211 S.E.2d 626 (1974); Reams v. Composite State Bd. of Medical Exmrs., 233 Ga. 742, 213 S.E.2d 640 (1975); Taylor v. Stapp, 134 Ga. App. 468, 215 S.E.2d 23 (1975); Kamensky v. Stacey, 134 Ga. App. 530, 215 S.E.2d 294 (1975); Marchman v. Head, 135 Ga. App. 475, 218 S.E.2d 151 (1975); Bell v. Fine Prods. Co., 139 Ga. App. 878, 229 S.E.2d 808 (1976); Dyna-Comp Corp. v. Selig Enters., Inc., 143 Ga. App. 462, 238 S.E.2d 571 (1977); Kimble v. Kimble, 240 Ga. 100, 239 S.E.2d 676 (1977); Schneider v. Spivey, 240 Ga. 468, 241 S.E.2d 224 (1978); Woods v. Andersen, 145 Ga. App. 492, 243 S.E.2d 748 (1978); Harris v. Harris, 242 Ga. 576, 250 S.E.2d 407 (1978); Karp v. Friedman, Alpren & Green, 148 Ga. App. 204, 250 S.E.2d 819 (1978); Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979); Thornton v. Burson, 151 Ga. App. 456, 260 S.E.2d 388 (1979); Wetherington v. Koepenick & Horne, Inc., 153 Ga. App. 302, 265 S.E.2d 107 (1980); Massengale v. Georgia Power Co., 153 Ga. App. 476, 265 S.E.2d 830 (1980); Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980); Georgia Gazette Publishing Co. v. Ramsey, 248 Ga. 528, 284 S.E.2d 386 (1981); Everson v. Franklin Disct. Co., 248 Ga. 811, 285 S.E.2d 530 (1982); Sherrill v. Martin, 161 Ga. App. 558, 288 S.E.2d 648 (1982); Warmack v. Mini-Skools, Ltd., 164 Ga. App. 737, 297 S.E.2d 365 (1982); Morgan v. Citizens & S. Nat'l Bank, 165 Ga. App. 254, 299 S.E.2d 750 (1983); Porter v. Eastern Air Lines, 165 Ga. App. 152, 300 S.E.2d 525 (1983); Portman v. Karsman, 166 Ga. App. 398, 304 S.E.2d 399 (1983); Osborne v. Bank of Delight, 173 Ga. App. 322, 326 S.E.2d 523 (1985); Anderberg v. Georgia Elec. Membership Corp., 175 Ga. App. 14, 332 S.E.2d 326 (1985); Hankinson v. Rackley, 177 Ga. App. 734, 341 S.E.2d 231 (1986); Howell v. United States Fire Ins. Co., 185 Ga. App. 154, 363 S.E.2d 560 (1987); Mag Mut. Ins. Co. v. Gatewood, 186 Ga. App. 169, 367 S.E.2d 63 (1988); Opatut v. Guest Pond Club, Inc., 188 Ga. App. 478, 373 S.E.2d 372 (1988); Haugabrook v. Waco Fire & Cas. Ins. Co., 190 Ga. App. 815, 380 S.E.2d 347 (1989); Lightwerk Studios, Inc. v. Door Units of Ga., Inc., 191 Ga. App. 756, 382 S.E.2d 699 (1989); Singleton v. Eastern Carriers, Inc., 192 Ga. App. 227, 384 S.E.2d 202 (1989); Black v. Georgia DOT, 262 Ga. 342, 417 S.E.2d 655 (1992); Austin v. Kaufman, 203 Ga. App. 704, 417 S.E.2d 660 (1992); Jones v. Abel, 209 Ga. App. 889, 434 S.E.2d 822 (1993); Gilbert v. Montlick & Assocs., P.C., 248 Ga. App. 535, 546 S.E.2d 895 (2001); Thakkar v. St. Ives Country Club, 250 Ga. App. 893, 553 S.E.2d 181 (2001); Henry v. Swift, Currie, McGhee & Hiers, L.L.P., 254 Ga. App. 817, 563 S.E.2d 899 (2002); Ford Motor Co. v. Lawrence, 279 Ga. 284, 612 S.E.2d 301 (2005); Nanan v. State Farm Ins. Co., 286 Ga. App. 539, 650 S.E.2d 283 (2007); Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020); Fulton DeKalb Hosp. Auth. v. Miller & Billips, 293 Ga. App. 601, 667 S.E.2d 455 (2008); In the Interest of B.H., 295 Ga. App. 297, 671 S.E.2d 303 (2008); Bd. of Regents of the Univ. Sys. of Ga. v. Ambati, 299 Ga. App. 804, 685 S.E.2d 719 (2009); Patel v. Columbia Nat'l Ins. Co., 315 Ga. App. 877, 729 S.E.2d 35 (2012); St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419, 746 S.E.2d 98 (2013); Rivera v. Washington, 298 Ga. 770, 784 S.E.2d 775 (2016); Martin v. Ledbetter, 342 Ga. App. 208, 802 S.E.2d 432 (2017); Lee v. Mercury Ins. Co., 343 Ga. App. 729, 808 S.E.2d 116 (2017), cert. denied, No. S18C0518, 2018 Ga. LEXIS 491 (Ga. 2018); CEI Servs. v. Sosebee, 344 Ga. App. 508, 811 S.E.2d 20 (2018), overruled on other grounds, Workman v. RL BB ACQ I-GA CVL, LLC, 303 Ga. 693, 814 S.E.2d 696 (2018); Heard v. Ruef, 347 Ga. App. 1, 815 S.E.2d 607 (2018); U-Haul Co. of Arizona v. Rutland, 348 Ga. App. 738, 824 S.E.2d 644 (2019); McCalla Raymer, LLC v. Foxfire Acres, Inc., Ga. App. , 846 S.E.2d 404 (2020).

Discovery is available under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) to any party, in any court, regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. Morton v. Gardner, 242 Ga. 852, 252 S.E.2d 413 (1979).

Discovery may be had from the opposite party in any case, legal or equitable, pending in any court; this is even more true today since the adoption of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). Morton v. Gardner, 242 Ga. 852, 252 S.E.2d 413 (1979).

- Rule that discovery is not limited to matters that are admissible in evidence at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence is to be given a liberal construction in favor of supplying a party with the facts underlying the opponent's case, without reference to whether the facts sought are admissible upon trial of the action. Bridges v. 20th Century Travel, Inc., 149 Ga. App. 837, 256 S.E.2d 102 (1979).

Discovery procedure is to be given a liberal construction in favor of supplying a party with the facts without reference to whether the facts sought are admissible upon the trial of the action. Bullard v. Ewing, 158 Ga. App. 287, 279 S.E.2d 737 (1981).

It is not ground for objection that information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Bullard v. Ewing, 158 Ga. App. 287, 279 S.E.2d 737 (1981).

Matters sought to be discovered need not be incapable of proof otherwise in order to maintain a bill of discovery. Farmers Bank v. Harrison, 182 Ga. 623, 186 S.E. 687 (1936) (decided under former Code 1933, § 38-1101).

- Bill for discovery will not lie to determine matters not necessary, material, or relevant to the issue, or when it would seriously injure the party's business and the chance of benefit to the other party is small. Farmers Bank v. Harrison, 182 Ga. 623, 186 S.E. 687 (1936) (decided under former Code 1933, § 38-1101).

- Grant of requests for "all correspondence between the Internal Revenue Service and the defendant concerning the defendant's recent audit, and a copy of the IRS's audit result and/or report," and a "copy of the defendant's most current balance sheet with supporting schedules, ledgers, etc.," was an abuse of discretion. Southern Outdoor Promotions, Inc. v. National Banner Co., 215 Ga. App. 133, 449 S.E.2d 684 (1994).

- Production of "all other documents" intended for use at trial is outside the scope of O.C.G.A. § 9-11-34(a), delineated under paragraph (b)(1) of O.C.G.A. § 9-11-26 as "any matter . . . which is relevant to the subject matter involved in the pending action," without regard to whether or not that "matter" will be used as evidence at the trial of the action. E.H. Siler Realty & Bus. Broker, Inc. v. Sanderlin, 158 Ga. App. 796, 282 S.E.2d 381 (1981).

Scope of discovery under O.C.G.A. § 9-11-33 (interrogatories) is as broad as the scope of examination under subsection (b) of O.C.G.A. § 9-11-26. Armstrong v. Strand, 167 Ga. App. 723, 307 S.E.2d 528 (1983).

When information sought appears reasonably calculated to lead to discovery of admissible evidence, and does not fall within any of the guidelines for entry of protective orders, it is not error to compel its discovery and to grant sanction for noncompliance therewith, even if such evidence might be inadmissible at trial. Ambassador College v. Goetzke, 244 Ga. 322, 260 S.E.2d 27 (1979), cert. denied, 444 U.S. 1079, 100 S. Ct. 1029, 62 L. Ed. 2d 762 (1980).

Any question calling for an answer may be asked any deponent regardless of the question being hearsay, immaterial, incompetent, or irrelevant, so long as the question is reasonably calculated to lead to the discovery of admissible evidence. Travis Meat & Seafood Co. v. Ashworth, 127 Ga. App. 284, 193 S.E.2d 166 (1972).

Inquiring into the content of relevant documents is within the scope of discovery. Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

- Discovery of statements or reports of objective facts obtained by a party during the course of an investigation conducted as a regular practice or as a normal part of the party's business should be allowed. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-2109).

- Trial court did not abuse the court's discretion in denying the shopper's motion to compel discovery of an incident book that the store maintained because the store testified that the store did not create entries for incidents in the parking lot and counsel for the store confirmed in a sworn affidavit that the binder did not contain a reference to the shopper's fall or any other outdoor incidents. Simon v. Murphy, 350 Ga. App. 291, 829 S.E.2d 380 (2019), cert. denied, No. S19C1365, 2020 Ga. LEXIS 31 (Ga. 2020).

- There was some evidence in the record to support the conclusion that the wife's records were relevant to the subject matter of the husband's litigation or reasonably calculated to lead to the discovery of admissible evidence. In re Callaway, 212 Ga. App. 500, 442 S.E.2d 309 (1994).

- Document an attorney creates is owned by the client and should be produced upon the client's request unless the attorney can cite "good cause" that would justify the attorney's refusal to turn over the document to the client, such as when the disclosure would violate an attorney's duty to a third party, when the document assesses the client personally, or when the document includes tentative preliminary impressions of the legal or factual issues presented in the representation recorded primarily for the purpose of giving internal direction to facilitate performance of legal services entailed in that representation. Swift, Currie, McGhee & Hiers v. Henry, 276 Ga. 571, 581 S.E.2d 37 (2003).

Names and addresses of clinic patients were discoverable in an action by a clinic against a rival alleging a scheme by the latter to divert current and potential patients. Gazelah v. Rome Gen. Practice, Inc., 232 Ga. App. 343, 502 S.E.2d 251 (1998).

- Identity of witnesses or probable witnesses in a case is not, with certain exceptions, considered privileged, even in the hands of an attorney, and particularly when the facts were obtained by someone other than the attorney. Jaynes v. Blake, 119 Ga. App. 748, 168 S.E.2d 832 (1969) (decided under former Code 1933, § 38-2101).

- Party must furnish information as to names and addresses of witnesses known to the party or to the party's attorney; this information is not a part of the work product. Jaynes v. Blake, 119 Ga. App. 748, 168 S.E.2d 832 (1969) (decided under former Code 1933, § 38-2101).

- While names of all witnesses as to matter to which interrogatory is addressed must be given, there is no requirement that the names of those who are to be called and sworn as witnesses be singled out; in answering it is simply required that the names, addresses, etc., of all having knowledge of any specific matters to which the interrogatory may be directed, be given, without designating which of them will be sworn as witnesses. Nathan v. Duncan, 113 Ga. App. 630, 149 S.E.2d 383 (1966) (decided under former Code 1933, § 38-2108).

While plaintiff is entitled to names and addresses of defendant's witnesses who have knowledge of relevant facts, the defendant is not required to state the specific names of those persons whom the defendant proposes to call as witnesses. Grant v. Huff, 122 Ga. App. 783, 178 S.E.2d 734 (1970).

Plaintiff was not entitled to discover information concerning defendant's personal financial resources absent an evidentiary showing (by affidavit, discovery responses, or otherwise) that a factual basis existed for the plaintiff's punitive damage claim. Holman v. Burgess, 199 Ga. App. 61, 404 S.E.2d 144, cert. denied, 199 Ga. App. 906, 404 S.E.2d 144 (1991).

Income tax returns are not privileged and are subject to discovery. Bailey v. Bruce, 132 Ga. App. 782, 209 S.E.2d 135 (1974).

- While income tax returns are not privileged, more than a de minimis showing of relevancy is required for discovery thereof. Borenstein v. Blumenfield, 151 Ga. App. 420, 260 S.E.2d 377 (1979).

Although income tax returns are not privileged, the returns are not automatically discoverable upon a de minimis showing of relevancy. Snellings v. Sheppard, 229 Ga. App. 753, 494 S.E.2d 583 (1998), overruled on other grounds by Coen v. Aptean, Inc., 2020 Ga. LEXIS 103 (Ga. 2020).

Communications between psychiatrist and patient are privileged. Boggess v. Aetna Life Ins. Co., 128 Ga. App. 190, 196 S.E.2d 172 (1973).

Trial court erred in requiring a passenger to produce any confidential communications made between the passenger and the passenger's mental-health-care providers because the passenger's handling of discovery, albeit troublesome, did not amount to a decisive and unequivocal waiver of the passenger's mental-health privilege as the law required; the passenger's arguably misleading responses to opposing counsel's questions regarding a previous diagnosis of depression did not amount to a "decisive" and "unequivocal" waiver of the mental-health privilege, and the passenger's decision to answer the deposition question posed to the passenger (whether the passenger suffered from a history of depression), rather than object to the question at the time the issue of depression was raised, did not constitute an explicit waiver of the privilege. Mincey v. Ga. Dep't of Cmty. Affairs, 308 Ga. App. 740, 708 S.E.2d 644 (2011).

- Plaintiff's interrogatories seeking the names and addresses of patients upon whom the defendants had performed the same surgical procedure were not limited to those surgeries which had presented problems of any kind and the trial court, therefore, properly granted the defendants' motion for an order protecting them. Reece v. Selmonosky, 179 Ga. App. 718, 347 S.E.2d 649 (1986).

- When any document sought to be produced contains a mixture of privileged and nonprivileged communication or information, ample remedy is provided to delete privileged matter, and this also would be within the inherent power of the court. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969).

O.C.G.A. § 45-9-1(c) does not prohibit discovery by tort plaintiff of liability insurance policies purchased by a government agency for the agency's employees. Pate v. Caballero, 253 Ga. 787, 325 S.E.2d 375 (1985).

- In an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of the mere existence of such contract is ground for mistrial. City Council v. Lee, 153 Ga. App. 94, 264 S.E.2d 683 (1980).

- While evidence of liability insurance for the benefit of one charged with negligence is usually refused on the rationale that it is irrelevant and prejudicial because it suggests to the jury that the wealth of the insurer is available to assuage the tort, nevertheless, when the existence of insurance becomes relevant for some other reason, evidence thereof should be admitted. Sasser v. Lester, 153 Ga. App. 220, 264 S.E.2d 728 (1980).

- Trial court erred in granting the motion to compel and in denying the motions for a protective order and for reconsideration because the information requested by the appellee was not relevant to the underlying dispute, nor did it appear reasonably calculated to lead to the discovery of admissible evidence, as the identity of the members and contributors of the social welfare organization was not relevant to whether the appellee breached the appellee's contract with the county when the appellee failed to make bond payments. RTA Strategy, LLC v. Silver Comet Terminal Partners, LLC, 347 Ga. App. 266, 817 S.E.2d 720 (2018).

- Interrogatories seeking information pertaining to gross pay, income, ownership of property, limits of liability insurance policy, and financial ability of the defendant to pay a possible judgment against the defendant did not appear to be reasonably calculated to lead to the discovery of admissible evidence, and sustaining of the defendant's objections thereto was not error. Grant v. Huff, 122 Ga. App. 783, 178 S.E.2d 734 (1970).

- Inquiry as to whether or not the plaintiff's judgment against the defendant had been paid, in part or in whole, or if one of the tort-feasors had been released, or if one of the defendants had concluded an agreement to pay the judgment in whole or in part was relevant to an action for execution of a foreign judgment attempted to be domesticated in Georgia. Armstrong v. Strand, 167 Ga. App. 723, 307 S.E.2d 528 (1983).

- Trial court erred in denying plaintiffs' discovery request that sought the discovery of documents pertaining to a development loan in a lawsuit involving a dispute between joint venturers as the trial court should have applied the proper standard of relevancy set forth in O.C.G.A. § 9-11-26, as opposed to ruling that the plaintiffs simply had enough documents. Hampton Island Founders v. Liberty Capital, 283 Ga. 289, 658 S.E.2d 619 (2008).

- Trial court is obligated under O.C.G.A. § 9-11-26 to balance a defamation plaintiff's need for identities of confidential informants against the defendant newspaper's interest in protecting the privacy of the confidential informants and the freedom of the press in general. The trial court must require the plaintiff to specifically identify each and every purported statement asserted as libelous, determine whether the plaintiff can prove the statements were untrue, taking into account all the other available evidentiary sources, including the plaintiff's own admissions, and determine whether the statements can be proven false through the use of other evidence, thus eliminating the plaintiff's necessity for the requested discovery. If a plaintiff cannot succeed on a specific allegation of libel as a matter of law, or if the plaintiff is able to prove a specific allegation through the use of available alternative means, then the trial court's balancing test should favor non-disclosure of confidential sources; however, if a specific allegation of libel is determined to be legally viable, or if it cannot be determined whether the allegation is legally viable given the current state of the record, and if the identity of the sources is either relevant and material in and of itself, or is the only available avenue to other admissible evidence, then the trial court's balancing test should favor disclosure of the confidential sources. Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 555 S.E.2d 175 (2001).

- There was no error in denying a workers' compensation claimant's motion to compel production of certain documents and correspondence from an employer's claims adjuster because the employer met the employer's burden of showing that the documents were prepared in anticipation of litigation and thus were not discoverable; the claimant failed to establish the claimant's substantial need for the material. S&B Eng'rs & Constructors Ltd. v. Bolden, 304 Ga. App. 534, 697 S.E.2d 260, cert. dismissed, No. S10C1789, 2010 Ga. LEXIS 912 (Ga. 2010).

- Party seeking to examine the jury regarding disqualifying ties to insurance companies must be permitted to pose the questions before the verdict, and an error in that regard cannot be cured or deemed harmless after the verdict. Ford Motor Co. v. Conley, 294 Ga. 530, 757 S.E.2d 20 (2014).

- Trial court did not abuse the court's discretion in granting the plaintiffs' extraordinary motion for new trial based on an auto company's misleading discovery responses with regard to liability insurance because the plaintiffs acted with due diligence to raise the plaintiffs' claim that the jury should have been qualified as to the auto company's insurers and the failure to do so raised an unrebutted presumption that the plaintiffs were materially harmed. Ford Motor Co. v. Conley, 294 Ga. 530, 757 S.E.2d 20 (2014).

- In a feud between siblings over their aunt's estate, the parts of the trial court's order that granted permanent relief were vacated because the appellants objected that discovery was not complete; the court did not announce that it was shortening the ordinary six-month discovery period; before the hearing, the appellants had filed a motion seeking to withhold ruling on the disposition of the real property until discovery was complete; and, at the hearing, both sides indicated that they were still gathering evidence which they wanted to present to the court; accordingly, the trial court's curtailment of discovery by granting premature permanent relief was not permissible. Barnes v. Channel, 303 Ga. 88, 810 S.E.2d 549 (2018).

Trial Preparation Materials

Scope of work product exception.

- Statute extends work product exception to parties and their representatives, such as attorneys, consultants, sureties, indemnitors, insurers, or agents. Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

- Material obtained or collected by a party is protected from discovery as work product even "before claim is instituted" if "reasonable grounds exist to believe that litigation is probable." Department of Transp. v. Hardaway Co., 216 Ga. App. 262, 454 S.E.2d 167 (1995).

- Trial court's protective order was vacated and case remanded with instructions for the trial court to reconsider the renter's invocation of a Fifth Amendment privilege as the privilege pertained to each individual discovery request because the trial court did not evaluate the privilege with respect to requests to produce and such was necessary since the privilege can, but did not automatically apply to the act of producing documents. U-Haul Co. v. Rutland, 348 Ga. App. 738, 824 S.E.2d 644 (2019).

- In determining whether statements are to have protection under the attorney-client privilege, such privilege should be confined to its narrowest permissible limits under the statute of its creation, for it is only in that way that discovery provisions can be afforded the liberal construction and interpretation that will enable them to accomplish the purpose for which they were intended. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-2109).

As with the attorney-client privilege, the work-product doctrine is not absolute, and attorneys cannot cloak themselves in its mantle when their mental impressions and opinions are directly at issue. Accordingly, the doctrine should not apply when a client, as opposed to some other party, seeks to discover an attorney's mental impressions because it cannot shield a lawyer's papers from discovery in a conflict of interest context anymore than can the attorney-client privilege. Hunter, Maclean, Exley & Dunn, P.C. v. St. Simons Waterfront, LLC, 317 Ga. App. 1, 730 S.E.2d 608 (2012).

Discovery of an attorney's work product will generally be withheld. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-2109).

- Work product privilege contained in subsection (b) of O.C.G.A. § 9-11-26 pertains to "documents and tangible things" and provides no basis for a party, even a party exercising self-representation, to refuse to appear for a deposition. Jarallah v. Pickett Suite Hotel, 193 Ga. App. 325, 388 S.E.2d 333 (1989), cert. denied, 495 U.S. 936, 110 S. Ct. 2183, 109 L. Ed. 2d 512 (1990).

Purpose of doctrine of "work product" is to protect attorney's preparation for trial from discovery. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-2109).

Real purpose of the work product exception to the general broad scope of discovery is protection of the mental impressions, conclusions, and theories of persons engaged in preparing litigation. Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

- In order to escape discovery under paragraph (b)(3) of this section, documents and tangible things must have been prepared in anticipation of litigation or for trial by or for a party or by or for that party's representative and the materials must contain the mental impressions, conclusions, opinions, or legal theories of the person preparing them; if the items sought do not satisfy both requirements, they do not constitute work products, and may be freely discovered. Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

Work product exception cannot be proved by a general objection that interrogatories seek information concerning efforts to prepare for trial. Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

- Even though an accurate transcript of the testimony adduced at a misdemeanor trial may be available only because of the foresightedness of plaintiff's counsel, who hired the reporter with future civil litigation in mind or for other reasons, including an appeal in the event of conviction, it is nonetheless merely a record of the proceedings of a public trial, which is sought from the reporter, not the attorney, and is not privileged as the attorney's work product. Robinson v. J.C. Penney Co., 124 Ga. App. 221, 183 S.E.2d 782 (1971).

- In an action in which the shareholders sued because of stock losses following corporate acquisition of another company, the trial court neither explicitly or implicitly placed the burden of showing non-waiver of the work-product protection on a buyer; the buyer waived work-product protection when the buyer provided certain audit documents to the United States Securities and Exchange Commission (SEC) because the buyer and the SEC were actual or potential adversaries when the documents were disclosed, and a confidentiality agreement did not ensure that the audit documents would remain confidential since it allowed the SEC to give the documents to others if it deemed that course of action to be in furtherance of its duties and responsibilities. McKesson Corp. v. Green, 279 Ga. 95, 610 S.E.2d 54 (2005).

- Trial court erred in denying a partner's motion to compel the discovery of the financial records of a company a copartner formed because the revenues and profits of the company could very well have some relevance to the proper measure of damages; the trial court erred in concluding that the revenues and profits that the company earned from business opportunities lost by the partnership could not possibly be probative of the damages that the partner could be entitled to recover and that the partner could not have any discovery of the finances of the company because some reasonable person could say that the revenues and profits the company earned from the same business opportunities could be a fair approximation of the revenues that the partnership would have earned from the opportunities and were, therefore, probative of the lost revenue and profit of the partnership. McMillian v. McMillian, 310 Ga. App. 735, 713 S.E.2d 920 (2011).

- Once the attorney-client relationship obtains as to a particular matter, an attorney may have investigations made or statements taken under the attorney's direct instruction and supervision, and these may be deemed a part of what the attorney has done, and thus a part of the attorney's work product. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-2109).

- Report of an investigator hired by the husband's attorney subsequent to the filing of an action for divorce and alimony by the wife, made directly to the attorney, is attorney's work product, and absent a showing of necessity and justification by wife, her discovery thereof must fail. Smith v. Smith, 223 Ga. 551, 156 S.E.2d 916 (1967) (decided under former Code 1933, § 38-2109).

- Statement of a party or other witness to an accident, if taken by an insurer in anticipation of a claim being filed against its insured, is considered a work product, even if taken before litigation is filed. Copher v. Mackey, 220 Ga. App. 43, 467 S.E.2d 362 (1996).

Not all statements taken by attorneys are work product. Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

Mere fact that statement is taken with an eye toward litigation does not automatically insulate the statement from discovery as work product. Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

Attorney-client privilege does not cover the identity of documents a party reviews to prepare for a deposition. McKinnon v. Smock, 264 Ga. 375, 445 S.E.2d 526 (1994).

- When a document is prepared in anticipation of litigation by a party's counsel and then disclosed to that party's testifying expert, the disclosure does not waive the work product protection that should be accorded the document and the document may only be discovered upon the showing of substantial need and of undue hardship to obtain the materials by other means. McKinnon v. Smock, 209 Ga. App. 647, 434 S.E.2d 92 (1993).

- In order for the statement of a witness to be exempt from the general scope of discovery, the statement must have been orally given to a party or the party's representative, who records the statement in anticipation of litigation or trial. Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

- Written statement of a witness, whether prepared by the witness and later delivered to the party or the party's representative, or drafted by the party or the party's representative and adopted by the witness, is not properly considered the work product of a party or the party's representative as the statement records the mental impressions and observations of the witness personally and not those of the party or the party's representative. Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

- Recordation made by a party or the party's representative of the oral statement of a witness is normally a part of the work product for it will include the party's analysis and impression of what the witness has told the party. Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

Since federal law under which an action was brought protected the plaintiff's access to co-employees for information relating to it, an attorney did not violate Standard 47 of the state bar rules by obtaining the recorded statements of co-employees; the statements were protected from discovery by paragraph (b)(3) of O.C.G.A. § 9-11-26. Norfolk S. Ry. v. Thompson, 208 Ga. App. 240, 430 S.E.2d 371 (1993).

- When an attorney and the plaintiff jointly interviewed a witness shortly before suit was filed and in contemplation of the litigation, the statement generated thereby comes within the definition of work product. McMillan v. GMC, 122 Ga. App. 855, 179 S.E.2d 99 (1970).

- Party is not entitled to discovery of written statements in the files of the attorney for the adverse party and of memoranda made by that attorney in anticipation of the litigation, absent a showing of necessity for production of such material or a demonstration that denial of production would cause hardship or injustice. Setzers Super Stores of Ga., Inc. v. Higgins, 104 Ga. App. 116, 121 S.E.2d 305 (1961) (decided under former Code 1933, Ch. 21, T. 38).

- In a medical malpractice suit, the trial court erred by summarily determining that witness interview transcripts were not statutorily protected work product and ordered their production because the court failed to make any inquiry into the content of the transcripts and made no findings or conclusions with regard to the husband's need or hardship as required by O.C.G.A. § 9-11-26(b)(3). Wellstar Health Sys. v. Jordan, 293 Ga. 12, 743 S.E.2d 375 (2013).

- Work product immunity is not extended to statements obtained by claim agents or investigators, even though obtained under supervision of the defendant's counsel, when such statements are routinely obtained as a standard practice of investigating accidents in which it or its servants and agents may be involved while performing its functions. Atlantic Coast Line R.R. v. Gause, 116 Ga. App. 216, 156 S.E.2d 476 (1967) (decided under former Code 1933, § 38-2109).

In a suit based on an explosion and fire in a cold storage warehouse facility during the installation of a compressor engine, a contractor was entitled to disclosure of the facility owner's accident report, which was prepared after an accident investigation conducted by the owner's personnel because the report was not protected by the work-product doctrine under O.C.G.A. § 9-11-26(b)(3) since the report was not prepared in anticipation of litigation, but in the regular course of business in accordance with internal policies and applicable government regulations. Alta Refrigeration, Inc. v. AmeriCold Logistics, LLC, 301 Ga. App. 738, 688 S.E.2d 658 (2009).

- In a negligence suit involving the death of an individual in an automobile collision, a trial court did not abuse the court's discretion by ordering the production of crash-test documents relating to prior litigation from an auto manufacturer as the plaintiff showed a substantial need for the requested documents since the requested evidence documented past car-to-car crash tests conducted by the auto manufacturer on a line of vehicles that included similar fuel tank locations and performance as the vehicle that was being driven by the decedent; the trial court properly concluded that the plaintiff could not obtain the substantial equivalent of the crash tests absent undue hardship since the plaintiff could not generate rear car-to-car crash tests that would have established the auto manufacturer's knowledge of dangers presented by the manufacturer's vehicle in rear car-to-car crashes; and the trial court ordered an in camera review of the documents with which the auto manufacturer refused to comply. Ford Motor Co. v. Gibson, 283 Ga. 398, 659 S.E.2d 346 (2008).

- In order to discover documents, statements, and other tangible items of evidence developed by one party in preparation for litigation, the moving party must show affirmatively that the moving party has a substantial need for such evidence in the preparation of the case and that it would cause an undue hardship upon the moving party to develop that evidence by means other than extraction from the files of the opposing party; if the trial court is satisfied that the required showing has been made, the court may order the production, after an in-camera examination (or other acceptable agreement between the parties) with a view toward protecting against the disclosure of mental impressions, conclusions, opinions, or legal theories. Georgia Int'l Life Ins. Co. v. Boney, 139 Ga. App. 575, 228 S.E.2d 731 (1976).

Documents, statements, and other tangible items of evidence developed by one party in preparation for litigation are discoverable by the other party only in carefully limited circumstances; the moving party must show affirmatively that the moving party has a substantial need for such evidence in the preparation of the case and that it would cause an undue hardship upon the moving party to develop that evidence by means other than extraction from the files of the opposing party. Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

In order to compel the production of trial preparation material developed in anticipation of litigation, the movant must show affirmatively that the movant has a substantial need for such evidence in the preparation of the movant's case and that it would cause an undue hardship upon the movant to develop that evidence by means other than extraction from the files of the opposing party. Lowe's of Ga., Inc. v. Webb, 180 Ga. App. 755, 350 S.E.2d 292 (1986).

- Without some showing of necessity therefor, an attorney is not required to produce and make available to the attorney for the adverse party the attorney's "work product," including statements that the attorney may have obtained from witnesses or memoranda that the attorney may have made in anticipation of the litigation. Setzers Super Stores of Ga., Inc. v. Higgins, 104 Ga. App. 116, 121 S.E.2d 305 (1961) (decided under former Code 1933, Ch. 21, T. 38).

Party seeking discovery of work product must then show necessity or justification before being entitled to discovery. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-2109).

- In order to require production of a work product item, there must be a showing of more than "good cause"; a showing of "necessity and justification," which is of a higher order than the good cause requirement, must be made, and the burden is on the movant to do so. McMillan v. GMC, 122 Ga. App. 855, 179 S.E.2d 99 (1970).

- Party wishing to claim protection of the work-product privilege has the burden of showing the document or other item was prepared in anticipation of litigation. GMC v. Conkle, 226 Ga. App. 34, 486 S.E.2d 180 (1997).

- Showing required for discovering any portion of attorney's work product is of a higher order than that of "good cause" required in other instances, and should be such as to lead the court to conclude that only by allowing discovery may manifest injustice be averted or an intolerable hardship prevented. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-2109).

In order to require production of a work product item, a movant must demonstrate that a denial of the movant's motion will result in manifest injustice or intolerable hardship. McMillan v. GMC, 122 Ga. App. 855, 179 S.E.2d 99 (1970).

- When a party has carried the party's burden of showing material sought was obtained in anticipation of litigation, it becomes incumbent upon the trial court to require the other party to satisfy the second test established by the discovery statute; i.e., to show a substantial need and undue hardship in the development of the information sought. If the trial court does not do so, the judgment will be reversed and the record remanded to the trial court to add in the court's order the court's finding as to the second phase of the discovery of protected trial preparation material. Lowe's of Ga., Inc. v. Webb, 180 Ga. App. 755, 350 S.E.2d 292 (1986).

- In a discovery dispute with a corporation claiming that the work-product doctrine barred discovery of information, the trial court erred under O.C.G.A. § 9-11-26(b)(3) in ordering the corporation to provide information without first deciding whether the work-product doctrine or waiver applied. McKesson HBOC, Inc. v. Adler, 254 Ga. App. 500, 562 S.E.2d 809 (2002).

- Personal injury action defendants were entitled to discovery of the transcript of prior traffic court proceedings in which the defendants testified and were cross-examined as to issues bearing vitally upon their alleged liability in the subsequent civil case. Truitt v. Mason, 189 Ga. App. 24, 374 S.E.2d 771, cert. denied, 189 Ga. App. 913, 374 S.E.2d 771 (1988).

- When a store owner showed that from the very beginning the owner was aware that an adversarial action was forthcoming, in the face of hotly disputed fault, it substantially established that the statements given by the owner's employees to their supervisor and an insurance adjuster before suit was filed met the statutory criteria of having been taken in contemplation of litigation or trial. Lowe's of Ga., Inc. v. Webb, 180 Ga. App. 755, 350 S.E.2d 292 (1986).

- When parties are unable to resolve a conflict concerning what portions of a document containing both facts and legal theories should be made available to an adverse party, the parties shall submit the disputed document to the trial court along with their argument concerning which portions should be made available to the adverse party. The trial court shall then conduct an in camera inspection of the document and instruct the attorney claiming work product protection how the document should be altered for disclosure to the adverse party. McKinnon v. Smock, 209 Ga. App. 647, 434 S.E.2d 92 (1993).

- Written claim and demand for payment outside the terms of the contract in response to a claim created the materials at issue. Department of Transp. v. Hardaway Co., 216 Ga. App. 262, 454 S.E.2d 167 (1995).

- In an action arising from an automobile accident, when the defendant failed to demonstrate that the defendant had a substantial need for a statement of the plaintiff taken by an adjuster for the plaintiff's insurance carrier and would face undue hardship in obtaining substantially equivalent information elsewhere, the defendant could not require production of the statement at a deposition, nor require the adjuster to testify during deposition as to the content of the statement. Sturgill v. Garrison, 219 Ga. App. 306, 464 S.E.2d 902 (1995).

- Attorney's contention that a former client's attorney's attempt to obtain documents directly related to the pending divorce action and prepared in anticipation thereof should have been brought in a separate legal action was rejected under O.C.G.A. § 9-11-26(b) as the file was sought for purposes of the same pending divorce action for which the file was compiled in the first place; the trial court made an express finding that the client and the client's new attorney needed possession of the file in order to adequately present the client's claim, which was ongoing and still within the jurisdiction of the trial court. Mary A. Stearns, P.C. v. Williams-Murphy, 263 Ga. App. 239, 587 S.E.2d 247 (2003).

Attorney's defense to the trial court's order holding the attorney in contempt for the attorney's refusal to turn over a client's file challenging the underlying validity of the prior order requiring the attorney to turn over the file was a collateral attack that could be sustained under O.C.G.A. § 9-11-60(a) only if the prior order was void on the order's face. However, the trial court's prior order was not void on the order's face since: (1) the attorney was served with a motion to compel prior to the entry of the prior order; (2) the trial court had jurisdiction to issue an order to compel a nonparty to release necessary non-privileged documents specifically prepared in anticipation of a divorce action pending before the trial court under O.C.G.A. §§ 9-11-26(b),9-11-34(c)(1), and9-11-37(a); (3) the attorney willfully disregarded the prior order; and (4) the prior order was entered in a matter over which the trial court had subject matter jurisdiction, making disobedience of the order contempt of court. Mary A. Stearns, P.C. v. Williams-Murphy, 263 Ga. App. 239, 587 S.E.2d 247 (2003).

Experts

Only general description of experts, not actors or observers, required.

- As to expert witnesses who were not actors or observers, a very general summary of scientific or professional grounds is sufficient under subdivision (b)(4)(A)(i) of O.C.G.A. § 9-11-26, since the opponent has further discovery through full depositions and cross-examinations. Candler Gen. Hosp. v. Joiner, 180 Ga. App. 455, 349 S.E.2d 756 (1986).

In a medical malpractice action, subdivision (b)(4)(A)(i) of O.C.G.A. § 9-11-26 did not apply to physician witnesses whose knowledge and opinions arose from personal involvement with the decedent. McNabb v. Landis, 223 Ga. App. 894, 479 S.E.2d 194 (1996).

§ 9-11-26(b)(4)(A)(i). - In a medical malpractice case, when an expert's opinions arose from the expert's involvement as one of the patient's treating physicians, and not in anticipation of litigation, the expert's testimony did not fall within the ambit of O.C.G.A. § 9-11-26(b)(4)(A)(i). Yang v. Smith, 316 Ga. App. 458, 728 S.E.2d 794 (2012).

§ 9-11-26(b)(4)(A)(ii). - O.C.G.A. § 9-11-26(b)(4)(A)(ii), relating to payment of fees for obtaining discovery from witnesses, applies to all discovery obtained from an expert in anticipation of litigation or trial. Polston v. Levine, 171 Ga. App. 893, 321 S.E.2d 350 (1984).

- O.C.G.A. § 9-11-26(b)(4)(A)(ii) and (b)(4)(C)(ii), when read together, require that a party pay the reasonable fees of any expert it deposes or redeposes, unless doing so would create manifest injustice; in other words, a trial court is not entitled to shift the payment of the expert's fees to the other party unless the deposing party demonstrates that shifting the fees is necessary to avoid a manifest injustice. In order to determine whether the party seeking to shift fees has met the party's burden on this issue, the trial court needs to consider and weigh factors including the possible hardships imposed on the respective parties, the need for doing justice on the merits between the parties, whether a party is indigent, and the need for maintaining orderly and efficient procedural arrangements. Barnum v. Coastal Health Servs., 288 Ga. App. 209, 653 S.E.2d 816 (2007), cert. denied, 2008 Ga. LEXIS 227 (Ga. 2008).

- Controversies concerning expert-witness fees will be resolved by the trial court in proceedings ancillary to the litigation in which the fees arise, and the dismissal of the main action does not divest the trial court of jurisdiction to rule on a motion to compel payment. Polston v. Levine, 171 Ga. App. 893, 321 S.E.2d 350 (1984).

Accident investigator was not an "expert" with regard to the investigator's observations of the plaintiff in an automobile negligence case. Jones v. Scarborough, 194 Ga. App. 468, 390 S.E.2d 674 (1990).

- Discovery is not designed in land condemnation cases to force production of information relating to a party's expert appraisal of the property to be condemned. Thornton v. State Hwy. Dep't, 113 Ga. App. 351, 148 S.E.2d 66 (1966) (decided under former Code 1933, §§ 38-2105 and 38-2108).

In a land condemnation case, a transportation department could not compel discovery from a landowner's former expert because the expert had withdrawn from the case, the landowner stipulated that the landowner would not use the expert's information, and the transportation department showed no exceptional circumstances warranting an order compelling discovery of the expert's information. DOT v. Bacon Farms, L.P., 270 Ga. App. 862, 608 S.E.2d 305 (2004).

- In a condemnation proceeding, when a city's witness not only directly supported the city's main contention, that a landowner's property could not be developed or removed from the flood plain, but the city's appraiser based a valuation on the witness's representations to that effect, the witness's testimony was critical, and the landowner had a right to interview the witness, check the facts to which the witness would testify, and, if indicated, arrange to secure rebuttal evidence or impeach the witness. Shepherd Interiors v. City of Atlanta, 263 Ga. App. 869, 589 S.E.2d 640 (2003).

- Trial court did not abuse the court's discretion to impose the sanction of exclusion of an expert's testimony for the violation of the rules of discovery. Heyde v. Xtraman, Inc., 199 Ga. App. 303, 404 S.E.2d 607, cert. denied, 199 Ga. App. 906, 404 S.E.2d 607 (1991).

- When defendants did not give the plaintiffs prior notice that an accident reconstruction expert would testify concerning the use of seat belts, the trial court did not abuse the court's discretion by refusing to allow the defendants' expert to testify concerning a subject matter not revealed to the plaintiffs. Jones v. Livingston, 203 Ga. App. 99, 416 S.E.2d 142 (1992).

- In a medical malpractice action against a pediatrician and a hospital, when the pediatrician settled and the hospital did not, experts subpoenaed to testify on behalf of the pediatrician could be called to testify on behalf of the hospital because the experts were listed by the hospital as "may call" witnesses on the pretrial order, pursuant to O.C.G.A. § 9-11-26(b)(4)(A)(i), there were no hard and fast rules about the discovery period in the case, and, having deposed these witnesses, the party objecting to the witnesses being called could not claim surprise from the witnesses' testimony. Gill v. Spivey, 264 Ga. App. 723, 592 S.E.2d 132 (2003).

- One seeking discovery of facts known and opinions held by an expert acquired or developed in anticipation of litigation or for trial may do so without exhibiting a substantial need for the material and without establishing that undue hardship will result should the seeker have to employ other means to develop the evidence. McKinnon v. Smock, 264 Ga. 375, 445 S.E.2d 526 (1994).

Discovery seeking facts known and opinions held by an expert is subject to the provision of subsection (b)(3) of O.C.G.A. § 9-11-26 against disclosure of mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation. Thus, correspondence from an attorney to an expert is protected from disclosure to the extent the correspondence contains the opinion work product of the attorney. McKinnon v. Smock, 264 Ga. 375, 445 S.E.2d 526 (1994).

- Trial court did not err by admitting the testimony of four expert witnesses because the witnesses were previously identified as fact witnesses and the supplemental responses in discovery were in compliance with the express terms of the discovery requests, O.C.G.A. § 9-11-26, and a pretrial order. LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App. 641, 703 S.E.2d 85 (2010).

- Trial court did not err in excluding the testimony of a medical examiner because the testimony a decedent's relatives sought to elicit went beyond the matters the medical examiner personally performed or observed and into the area of opinion testimony based upon a hypothetical posed by the questioner; the relatives failed to disclose the proffered expert testimony in pretrial discovery, and the disputed expert testimony was cumulative of the opinion testimony of another expert witness. Hewell v. Trover, 314 Ga. App. 738, 725 S.E.2d 853 (2012).

Protective orders may be obtained to avoid disclosure of trade secrets, prevent harassment, embarrassment, oppression, or limit the scope of discovery. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-2101).

Protective orders are intended to be protective, not prohibitive, and until such time as the court is satisfied by substantial evidence that bad faith or harassment motivates the discoverer's action, the court should not intervene to limit or prohibit the scope of pretrial discovery. International Serv. Ins. Co. v. Bowen, 130 Ga. App. 140, 202 S.E.2d 540 (1973); Bridges v. 20th Century Travel, Inc., 149 Ga. App. 837, 256 S.E.2d 102 (1979).

- Protective orders should not be entered when the effect is to frustrate and prevent legitimate discovery. Snead v. Pay-Less Rentals, Inc., 134 Ga. App. 325, 214 S.E.2d 412 (1975); Bridges v. 20th Century Travel, Inc., 149 Ga. App. 837, 256 S.E.2d 102 (1979).

- Issuance of a protective order is a recognition of the fact that in some circumstances the interest in gathering information must yield to the interest in protecting a party or person from annoyance, embarrassment, oppression, or undue burden. Borenstein v. Blumenfeld, 151 Ga. App. 420, 260 S.E.2d 377 (1979).

- Language of O.C.G.A. § 9-11-37(a)(4)(A) clearly contemplated that any award of expenses would be considered and decided at the time the trial court heard and decided the motion for a protective order; therefore, a party who brought a separate sanctions motion to recover its costs and fees later could not recover for the cost of filing the separate motion. RL BB ACQ I-GA CVL, LLC v. Workman, 341 Ga. App. 127, 798 S.E.2d 677 (2017), aff'd in part and rev'd in part, 303 Ga. 693, 814 S.E.2d 696 (2018), vacated, in part, 348 Ga. App. 281, 821 S.E.2d 573 (2018).

- Good cause required for grant of protective order must be clearly and specifically demonstrated; it will not appear from stereotyped and conclusory statements. Millholland v. Oglesby, 115 Ga. App. 715, 155 S.E.2d 672 (1967) (decided under former Code 1933, § 38-2105).

Good cause for the issuance of a protective order designed to frustrate discovery must be clearly demonstrated; such cause is not established by stereotyped or conclusional statements, bereft of facts. Young v. Jones, 149 Ga. App. 819, 256 S.E.2d 58 (1979).

Issuance of a protective order must be based on something other than a conclusory allegation by the state's attorney to the effect that any and all requested discovery would prejudice a criminal investigation. Christopher v. State, 185 Ga. App. 532, 364 S.E.2d 905 (1988).

Trial court did not abuse the court's discretion in determining that the defendants provided good cause entitling the defendants to a qualified protective order by arguing that the defendants should be granted the right to conduct ex parte interviews with the decedent's health care providers since the defendants were entitled to equal access to potential trial witnesses, the defendants would protect the attorney work-product, and would be more efficient and less costly than formal depositions or joint meetings with plaintiffs' counsel. Harris v. Tenet Healthsystem Spalding, Inc., 322 Ga. App. 894, 746 S.E.2d 618 (2013).

- Defendants' discovery violations were willful when the defendants withheld certain documents in order to "test their position," and as the defendants had not sought a protective order under O.C.G.A. § 9-11-26, but instead violated the trial court's orders compelling discovery by withholding the documents the defendants claimed were objectionable, the defendants' failure to comply with discovery orders was not excused; thus, it was a proper sanction under O.C.G.A. § 9-11-37 to strike the defendants' arbitration defenses. Ga. Cash Am., Inc. v. Strong, 286 Ga. App. 405, 649 S.E.2d 548 (2007), cert. denied, 2007 Ga. LEXIS 709 (Ga. 2007).

- Merely filing motions for a protective order did not relieve the plaintiffs from the duty to appear at the plaintiffs' depositions. Moreover, even if the plaintiffs could have prevailed on motions to compel more complete responses to their discovery efforts, this did not excuse the plaintiffs from the duty to attend the plaintiffs' depositions. It follows that the trial court correctly concluded that nothing the plaintiffs asserted in the plaintiffs' motions for a protective order provided a legal basis for the court to exercise the court's discretion to relieve the plaintiffs from the duty to appear at the plaintiffs' depositions. Rice v. Cannon, 283 Ga. App. 438, 641 S.E.2d 562 (2007).

- Denial of an accused's motion for a protective order under O.C.G.A. § 9-11-26(c) was affirmed as the Fifth Amendment could not be used to justify a protective order to stay all discovery in the accused's civil forfeiture proceeding under O.C.G.A. § 16-14-7 pending the conclusion of the accused's criminal Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., case; while the privilege against self-incrimination extends to answers creating a "real and appreciable" danger of establishing a link in the chain of evidence needed to prosecute, the trial court has to determine if the answers could incriminate the witness, and if the trial court determines that the answers could not incriminate the witness, the witness has to testify or be subject to the court's sanction. Chumley v. State of Ga., 282 Ga. App. 117, 637 S.E.2d 828 (2006).

- In an action against a personal care home alleging negligent supervision of a resident of the home, records of incidents and accidents involving other residents were relevant and the trial court properly denied the defendant's motion for a protective order covering the records. Apple Inv. Properties, Inc. v. Watts, 220 Ga. App. 226, 469 S.E.2d 356 (1996).

In a personal injury case, a trial court did not abuse the court's discretion by compelling a railway company to provide discovery of information on an event data recorder because the information was relevant under O.C.G.A. § 9-11-26(b)(1), and a producing party could have been required to translate information into a reasonably usable form. The trial court did not abuse the court's discretion by failing to grant the protective order since there was no undue burden or expense given the crucial nature of the evidence; moreover, the cost of a license required to view the information was minor compared to the amount at stake in the lawsuit, and it was the railway company's decision to install the device. Norfolk S. Ry. v. Hartry, 316 Ga. App. 532, 729 S.E.2d 656 (2012).

In the plaintiff's suit against various medical providers for their alleged negligence during the delivery of the plaintiff's daughter, because some of the documents requested by the medical providers could be both relevant and non-privileged, the trial court erred by concluding that all of the mental health documents other than the produced billing documents were privileged, and any relevant and non-privileged documents should be produced even if redactions were necessary; however, because the appellate court was unable to complete the review of the documents, the case was remanded to the trial court for an in camera review to separate privileged versus non-privileged information and provide a redacted copy. Brown v. Howard, 334 Ga. App. 182, 778 S.E.2d 810 (2015).

In a divorce action, the trial court did not abuse the court's discretion in denying the husband's motion for a protective order because regardless of the admissibility or inadmissibility of the content of the husband's emails, including the photos and videos of a mistress, the wife was entitled to engage in discovery which might lead to admissible evidence of the husband's alleged adultery. Ewing v. Ewing, 333 Ga. App. 766, 777 S.E.2d 56 (2015).

- Trial court did not err in granting a hospital's motion for a qualified protective order under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), to conduct ex parte interviews with a patient's health care providers because the hospital complied with 45 C.F.R. § 164.512(e)(1)(ii)(B), and any ex parte interviews conducted pursuant to the qualified protective order would be permitted under HIPAA; because the order prohibited the use or disclosure of the patient's health information for purposes other than the litigation and required the return or destruction thereof at the conclusion of the proceedings, it constituted a qualified protective order as defined in § 164.512(e)(1)(v). Baker v. Wellstar Health Sys., 288 Ga. 336, 703 S.E.2d 601 (2010).

Protective order permitting a hospital to conduct ex parte interviews with a patient's health care providers was too broad regarding the scope of information that could be disclosed because the order should have limited the hospital's inquiry to matters relevant to the medical condition the patient had placed at issue; under former O.C.G.A. § 24-9-40(a) (see now O.C.G.A. § 24-12-1), a litigant can waive the right to medical privacy under Georgia law only to the extent such information was relevant to the medical condition the litigant had placed in issue in the legal proceeding. Baker v. Wellstar Health Sys., 288 Ga. 336, 703 S.E.2d 601 (2010).

- To protect a habeas petitioner's constitutional right to effective assistance of counsel and against compelled self-incrimination, the petitioner was entitled to a protective order limiting disclosure of the former counsel's files in the proceeding to persons needed to assist in rebutting the petitioner's claim of ineffectiveness. Waldrip v. Head, 272 Ga. 572, 532 S.E.2d 380 (2000), recons. denied; overruled on other grounds by Duke v. State, 829 S.E.2d 348, 2019 Ga. LEXIS 406 (Ga. 2019).

Absent showing of need to protect witness. from annoyance, embarrassment, or oppression, a trial court abuses the court's discretion in restricting the broad use of discovery. Europa Hair, Inc. v. Browning, 133 Ga. App. 753, 212 S.E.2d 862 (1975).

In a case in which summary judgment and judgment on the pleadings was properly granted in favor of the buyer on the buyer's breach of contract, trespass to personal property, and conversion claims, the trial court did not err in denying the sellers' motion for a protective order prohibiting any further deposition of one of the sellers regarding that seller's net worth because the sellers had not shown that bad faith or harassment motivated the buyer in seeking such discovery or what specific prejudice might result from the deposition; and the sellers' mere conclusion that the scope of discovery had to be restricted to prevent an unreasonable intrusion into their privacy did not support the imposition of limitations on civil discovery. Caldwell v. Church, 341 Ga. App. 852, 802 S.E.2d 835 (2017).

Burden is on party served with interrogatories to show why the interrogatories should not be answered. Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985).

- In order to avoid sanctions for not responding to interrogatories, one must apply for a protective order under subsection (c) of this section. Sneider v. English, 129 Ga. App. 638, 200 S.E.2d 469 (1973).

- Fact that answering interrogatories will entail expense and trouble to witness or the witness's employer is not sufficient to escape the requirement of making answer; it is only when the court is satisfied that an undue burden will result that objections should be sustained on that basis. Sorrells v. Cole, 111 Ga. App. 136, 141 S.E.2d 193 (1965) (decided under former Code 1933, § 38-2106).

- In an election contest under O.C.G.A. § 21-2-522 regarding a race for lieutenant governor, the small number of irregularities involved with the direct-recording electronic (DRE) voting system and the lack of evidence of misconduct by any election official was insufficient to overcome the winner's margin of victory of 123,172 votes. Further, the trial court did not err in limiting discovery of the DRE machines or in denying the challengers' motion for a continuance and jury trial demand. Martin v. Fulton County Bd. of Registration & Elections, 307 Ga. 193, 835 S.E.2d 245 (2019).

Extent of discovery and use of protective orders is generally within discretion of trial judge. Bullard v. Ewing, 158 Ga. App. 287, 279 S.E.2d 737 (1981).

- Trial court has wide discretion in entering orders to prevent discovery which is oppressive, unreasonable, unduly burdensome or expensive, harassing, harsh, insulting, annoying, embarrassing, incriminating, or directed to wholly irrelevant and immaterial or privileged matter, or as to matter concerning which full information is already at hand. Snead v. Pay-Less Rentals, Inc., 134 Ga. App. 325, 214 S.E.2d 412 (1975); Young v. Jones, 149 Ga. App. 819, 256 S.E.2d 58 (1979).

Trial court has wide discretion in entering orders to prevent oppressive, unreasonably and unduly burdensome, or harassing discovery by interrogatories. Travis Meat & Seafood Co. v. Ashworth, 127 Ga. App. 284, 193 S.E.2d 166 (1972); International Serv. Ins. Co. v. Bowen, 130 Ga. App. 140, 202 S.E.2d 540 (1973).

Trial judge should exercise sound and legal discretion in the grant or denial of protective orders under subsection (c) of this section. International Serv. Ins. Co. v. Bowen, 130 Ga. App. 140, 202 S.E.2d 540 (1973); Bridges v. 20th Century Travel, Inc., 149 Ga. App. 837, 256 S.E.2d 102 (1979).

- Extent of discovery and use of protective orders is generally with the discretion of the trial judge but this must be a sound and legal discretion based on evidence and a showing of good cause. Bridges v. 20th Century Travel, Inc., 149 Ga. App. 837, 256 S.E.2d 102 (1979).

- Until such time as the court is satisfied by substantial evidence that bad faith or harassment motivates the discoveror's action, the court should not intervene to limit or prohibit the scope of pretrial discovery. Bullard v. Ewing, 158 Ga. App. 287, 279 S.E.2d 737 (1981).

When trial court passed upon merits of motion for protective order at a hearing, denying the motion, it must be assumed, in the absence of a transcript of that hearing, that the court properly exercised the court's discretion in refusing to issue the protective order. Young v. Jones, 149 Ga. App. 819, 256 S.E.2d 58 (1979).

- Trial court abused the court's discretion in granting the mother's motion for a protective order, thereby prohibiting the father from taking the deposition of a female child the father was accused of molesting, under any circumstance because the child's testimony was clearly relevant to the father's efforts to defend against the mother's motion for modification of custody. Galbreath v. Braley, 318 Ga. App. 111, 733 S.E.2d 412 (2012).

Interests of justice do not require production of tax returns, in the face of a motion for a protective order, when other discovery methods are available to obtain the same information. Borenstein v. Blumenfeld, 151 Ga. App. 420, 260 S.E.2d 377 (1979).

- Trial court did not err in finding that the APA governed a declaratory judgment action filed against a state agency, and that sovereign immunity barred any further discovery, pursuant to O.C.G.A. § 50-13-10; hence, as a result, when plaintiff consultant failed to comply with § 50-13-10, the trial court could do no more than to grant the agency a protective order, and could not take any action beyond that, including declaring that the Department of Community Health's rules regarding health benefits could not be challenged. Live Oak Consulting, Inc. v. Dep't of Cmty. Health, 281 Ga. App. 791, 637 S.E.2d 455 (2006).

- Application or motion for a relieving or modifying order should be presented as soon as the party or deponent learns that such an order is needed. Millholland v. Oglesby, 115 Ga. App. 715, 155 S.E.2d 672 (1967) (decided under former Code 1933 § 38-2105).

- When a court orders one party to permit discovery pursuant to subsection (c) of O.C.G.A. § 9-11-26, upon that party's willful failure to comply with the court's order, the party seeking sanctions need not move the court pursuant to O.C.G.A. § 9-11-37(a) to repeat the court's order before proceeding to move the court pursuant to § 9-11-37(b) for the imposition of sanctions. Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 353 S.E.2d 548 (1987).

- 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 notice to produce under former O.C.G.A. § 24-10-26 (see now O.C.G.A. § 24-13-27). Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 353 S.E.2d 548 (1987).

- Court order that a deposition shall not be taken, entered without motion seasonably made, without notice, and without any cause shown by the plaintiff or the plaintiff's counsel, is an unauthorized order prejudicial to the preparation of the defendant's defense. Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115 (1961) (decided under former Code 1933, § 38-2105).

Trial court's refusal to enter a protective order was proper because the opponent of the discovery did not show any of the grounds for such a motion specified in O.C.G.A. § 9-11-26(c), but merely objected that the discovery was untimely. Simmons v. Cmty. Renewal & Redemption, LLC, 286 Ga. 6, 685 S.E.2d 75 (2009).

- When appeal from denial of a motion for a protective order in regard to answering certain interrogatories and taking of a deposition in a civil suit is pursued by one who was neither a party to the case below nor the person from whom discovery was sought, the appeal is properly dismissed for lack of standing. State v. Upton, 160 Ga. App. 442, 287 S.E.2d 263 (1981).

Supplementation of Responses

Failure to claim surprise from late supplemental response waives tardiness.

- When an amended response to the condemnee's interrogatories was hand-delivered to the condemnee on the date of the trial, in which the condemnor updated the appraisal, surprising the condemnee, but the condemnee did not claim surprise at trial, but, instead, proceeded with the case, pointing out this last-minute change to the jury in opening remarks and vigorously and thoroughly cross-examined witnesses as to this updated appraisal, there was no reversible error. Morrison v. DOT, 166 Ga. App. 144, 303 S.E.2d 501 (1983).

- Defendant's expert in a products liability case was not required to supplement responses to question given in a deposition prior to trial since the expert had not been asked the specific discovery questions that were covered by the expert's testimony at the trial. Murphy v. Concrete Placement Sys., 215 Ga. App. 284, 450 S.E.2d 312 (1994).

- In a medical malpractice case in which the patient's counsel did not disclose the existence of an affidavit from a doctor who had spoken to the defendant doctor about the patient's treatment, the existence of the affidavit should have been disclosed pursuant to O.C.G.A. § 9-11-26(e)(2)(B) although the affidavit was created after the patient provided interrogatory answers; the affidavit was properly excluded under O.C.G.A. § 9-11-37(d). Anglin v. Smith, 346 Ga. App. 456, 816 S.E.2d 426 (2018).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Depositions and Discovery, §§ 1 et seq., 79 et seq, 210.

8A Am. Jur. Pleading and Practice Forms, Depositions and Discovery, § 1 et seq. 20A Am. Jur. Pleading and Practice Forms, Pretrial Conference and Procedure, § 1.

- 26B C.J.S., Depositions, § 109 et seq. 27 C.J.S., Discovery, §§ 1, 2 et seq., 22, 68-71, 107-109, 114, 119, 120, 140. 35A C.J.S., Federal Civil Procedure, §§ 562, 563, 564, 572, 597, 598, 606, 611, 639, 643 et seq., 678, 679, 684, 695, 696, 711, 715, 739.

- Scope or extent, as regards books, records, or documents to be produced or examined, permissible in order for inspection, 58 A.L.R. 1263.

Right to discovery as regards facts relating to amount of damages, 88 A.L.R. 504.

Right of party under statute or rule of court to order for examination of, or to propose interrogatories to, adverse party in respect to matters within knowledge of former, 95 A.L.R. 241.

Bill of discovery or statutory remedy for discovery as available for purpose of determining who should be sued, 125 A.L.R. 861.

Attorney as agent within statute providing for discovery examination of party or his agent, 136 A.L.R. 1502.

Production, in response to call therefor by adverse party, of document otherwise inadmissible in evidence, as making it admissible, 151 A.L.R. 1006.

Pretrial conference procedure as affecting right to discovery, 161 A.L.R. 1151.

Discovery or inspection of trade secret, formula, or the like, 17 A.L.R.2d 383.

Privilege of communications or reports between liability or indemnity insurer and insured, 22 A.L.R.2d 659.

Court's power to determine, upon government's claim of privilege, whether official information contains state secrets or other matters disclosure of which is against public interest, 32 A.L.R.2d 391.

Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers, or the like, 37 A.L.R.2d 586.

Names and addresses of witnesses to accident or incident as subject of pretrial discovery, 37 A.L.R.2d 1152.

In-camera trial or hearing and other procedures to safeguard trade secret or the like against undue disclosure in course of civil action involving such secret, 62 A.L.R.2d 509.

Discovery and inspection of income tax returns in actions between private individuals, 70 A.L.R.2d 240.

Right to copy of physician's report of pretrial examination where there is no specific statute or rule providing therefor, 70 A.L.R.2d 384.

Construction and effect of Rules 30(b), (d), 31(d), of the Federal Rules of Civil Procedure, and similar state statutes and rules, relating to preventing, limiting, or terminating the taking of depositions, 70 A.L.R.2d 685.

Qualifications of chemist or chemical engineer to testify as to effect of poison upon human body, 70 A.L.R.2d 1029.

Statements of parties or witnesses as subject of pretrial or other disclosure, production, or inspection, 73 A.L.R.2d 12.

Pretrial discovery to secure opposing party's private reports or records as to previous accidents or incidents involving the same place or premises, 74 A.L.R.2d 876.

Testing qualifications of expert witness, other than handwriting expert, by objective tests or experiments, 78 A.L.R.2d 1281.

Reports of treating physician delivered to litigant's own attorney as subject of pretrial or other disclosure, production, or inspection, 82 A.L.R.2d 1162.

Pretrial deposition-discovery of opinions of opponent's expert witnesses, 86 A.L.R.2d 138; 33 A.L.R. Fed. 403.

Propriety and effect of instructions in civil case on the weight or reliability of medical expert testimony, 86 A.L.R.2d 1038.

Propriety of discovery interrogatories calling for continuing answers, 88 A.L.R.2d 657.

Trial court's appointment, in civil case, of expert witness, 95 A.L.R.2d 390.

Discovery, inspection, and copying of photographs of article or premises the condition of which gave rise to instant litigation, 95 A.L.R.2d 1061.

Availability of mandamus or prohibition to compel or to prevent discovery proceedings, 95 A.L.R.2d 1229.

Pretrial discovery of opponent's engineering reports, 97 A.L.R.2d 770.

Discovery and inspection of articles and premises in civil actions other than for personal injury or death, 4 A.L.R.3d 762.

Financial worth of one or more of several joint defendants as proper matter for consideration in fixing punitive damages, 9 A.L.R.3d 692.

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.

Scope of defendant's duty of pretrial discovery in medical malpractice action, 15 A.L.R.3d 1446.

Discovery, in civil case, of material which is or may be designed for use in impeachment, 18 A.L.R.3d 922.

Identity of witnesses whom adverse party plans to call to testify at civil trial, as subject of pretrial discovery, 19 A.L.R.3d 1114.

Discovery, in products liability case, of defendant's knowledge as to injury to or complaints by others than plaintiff, related to product, 20 A.L.R.3d 1430.

Pretrial discovery of defendant's financial worth on issue of damages, 27 A.L.R.3d 1375.

Development, since Hickman v. Taylor, of attorney's "work product" doctrine, 35 A.L.R.3d 412; 27 A.L.R.4th 568.

Personal representative's loss of rights under dead man statute by prior institution of discovery proceedings, 35 A.L.R.3d 955.

Medical malpractice: necessity and sufficiency of showing of medical witness' familiarity with particular medical or surgical technique involved in suit, 46 A.L.R.3d 275.

Who has possession, custody, or control of corporate books or records for purposes of order to produce, 47 A.L.R.3d 676.

Necessity and effect, in homicide prosecution, of expert medical testimony as to cause of death, 65 A.L.R.3d 283.

Eminent domain: condemnor's liability for costs of condemnee's expert witnesses, 68 A.L.R.3d 546.

Discovery of hospital's internal records or communications as to qualifications or evaluations of individual physician, 81 A.L.R.3d 944.

Discovery or inspection of state bar records of complaints against or investigations of attorneys, 83 A.L.R.3d 777.

Restricting public access to judicial records of state courts, 84 A.L.R.3d 598.

Propriety of discovery order permitting "destructive testing" of chattel in civil case, 11 A.L.R.4th 1245.

Work product privilege as applying to material prepared for terminated litigation or for claim which did not result in litigation, 27 A.L.R.4th 568.

Abuse of process action based on misuse of discovery or deposition procedures after commencement of civil action without seizure of person or property, 33 A.L.R.4th 650.

Protective orders limiting dissemination of financial information obtained by deposition or discovery in state civil actions, 43 A.L.R.4th 121.

Discovery: right to ex parte interview with injured party's treating physician, 50 A.L.R.4th 714.

Discovery of defendant's sales, earnings, or profits on issue of punitive damages in tort action, 54 A.L.R.4th 998.

Insured-insurer communications as privileged, 55 A.L.R.4th 336.

Propriety of allowing state court civil litigant to call expert witness whose name or address was not disclosed during pretrial discovery proceedings, 58 A.L.R.4th 653.

Discovery, in civil proceeding, of records of criminal investigation by state grand jury, 69 A.L.R.4th 298.

Discovery of trade secret in state court action, 75 A.L.R.4th 1009.

Involuntary disclosure or surrender of will prior to testator's death, 75 A.L.R.4th 1144.

Propriety and extent of state court protective order restricting party's right to disclose discovered information to others engaged in similar litigation, 83 A.L.R.4th 987.

Discoverability of traffic accident reports and derivative information, 84 A.L.R.4th 15.

Existence and nature of cause of action for equitable bill of discovery, 37 A.L.R.5th 645.

Discoverability of metadata, 29 A.L.R.6th 167.

Propriety and scope of protective order against disclosure of material already entered into evidence in federal court trial, 138 A.L.R. Fed 153.

Taxation of costs associated with videotaped depositions under 28 U.S.C.A. § 1920 and Rule 54(d) of Federal Rules of Civil Procedure, 156 A.L.R. Fed. 311.

Expectation of privacy in and discovery of social networking web site postings and communications, 88 A.L.R.6th 319.

Discoverability of communications between insurer and reinsurer, 104 A.L.R.6th 207.

Effect of intersection between discovery rules and international privacy laws, 1 A.L.R.7th 1.

Dismissal of case against defendants with prejudice as discovery sanction against state, 10 A.L.R.7th 6.

Deposition of high-ranking government officials, 15 A.L.R. Fed. 3d 5.

Litigation of a "Proportionality" Rule in Scope of Federal Discovery (Fed. R. Civ. P. 26(b)(1), as amended December 1, 2015), 26 A.L.R. Fed. 3d 2.