2021 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 note, "Georgia's Approach to Proportionality and Sanctions for the Spoliation of Electronically Stored Information," see 37 Ga. St. U.L. Rev. 603 (2021). 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

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.

What Constitutes an "Adequate Privilege Log” Under Rule 26(b)(5) of the Federal Rules of Civil Procedure, 51 A.L.R. Fed. 3d 2.