2021 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 5 - Depositions and Discovery
§ 9-11-37. Failure to Make Discovery; Motion to Compel; Sanctions; Expenses

1. Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
   1. APPROPRIATE COURT. An application for an order to a party may be made to the court in which the action is pending or, on matters relating to a deposition, to the court in the county where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the county where the deposition is being taken;
   2. MOTION; PROTECTIVE ORDER. If a deponent fails to answer a question propounded or submitted under Code Section 9-11-30 or 9-11-31, or a corporation or other entity fails to make a designation under paragraph (6) of subsection (b) of Code Section 9-11-30 or subsection (a) of Code Section 9-11-31, or a party fails to answer an interrogatory submitted under Code Section 9-11-33, or if a party, in response to a request for inspection submitted under Code Section 9-11-34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to subsection (c) of Code Section 9-11-26;
   3. EVASIVE OR INCOMPLETE ANSWER. For purposes of the provisions of this chapter which relate to depositions and discovery, an evasive or incomplete answer is to be treated as a failure to answer; and
      1. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
      2. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
      3. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
2. Failure to comply with order.
   1. SANCTIONS BY COURT IN COUNTY WHERE DEPOSITION IS TAKEN. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the county in which the deposition is being taken, the failure may be considered a contempt of that court.
   2. SANCTIONS BY COURT IN WHICH ACTION IS PENDING. If a party or an officer, director, or managing agent of a party or a person designated under paragraph (6) of subsection (b) of Code Section 9-11-30 or subsection (a) of Code Section 9-11-31 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subsection (a) of this Code section or Code Section 9-11-35, the court in which the action is pending may make such orders in regard to the failure as are just and, among others, the following:
      1. An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
      2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
      3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
      4. In lieu of any of the foregoing orders, or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; or
      5. Where a party has failed to comply with an order under subsection (a) of Code Section 9-11-35 requiring him to produce another for examination, such orders as are listed in subparagraphs (A), (B), and (C) of this paragraph, unless the party failing to comply shows that he is unable to produce such person for examination.

         In lieu of any of the foregoing orders, or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him, or both, to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

3. Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Code Section 9-11-36 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that the request was held objectionable pursuant to subsection (a) of Code Section 9-11-36, or the admission sought was of no substantial importance, or the party failing to admit had reasonable ground to believe that he might prevail on the matter, or there was other good reason for the failure to admit.
4. Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection.
   1. If a party or an officer, director, or managing agent of a party or a person designated under paragraph (6) of subsection (b) of Code Section 9-11-30 or subsection (a) of Code Section 9-11-31 to testify on behalf of a party fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers or objections to interrogatories submitted under Code Section 9-11-33, after proper service of the interrogatories, or fails to serve a written response to a request for inspection submitted under Code Section 9-11-34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just; and, among others, it may take any action authorized under subparagraphs (b)(2)(A) through (b)(2)(C) of this Code section. In lieu of any order, or in addition thereto, the court shall require the party failing to act or the attorney advising him, or both, to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
   2. The failure to act described in the provisions of this chapter which relate to depositions and discovery may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by subsection (c) of Code Section 9-11-26.

(4) A WARD OF EXPENSES OF MOTION.

(Ga. L. 1966, p. 609, § 37; Ga. L. 1967, p. 226, § 18; Ga. L. 1970, p. 157, § 1; Ga. L. 1972, p. 510, § 10; Ga. L. 1984, p. 22, § 9; Ga. L. 1992, p. 6, § 9.)

- Additional sanctions which may be imposed upon regulated utilities failing to comply with discovery requests of Public Service Commission, § 46-2-57.

Failure to make discovery and motion to compel discovery in probate court proceedings, Uniform Rules for the Probate Courts, Rule 6.4.

- For provisions of Federal Rules of Civil Procedure, Rule 37, and annotations pertaining thereto, see 28 U.S.C.

- For article, "Truth and Uncertainty: Legal Control of the Destruction of Evidence," see 36 Emory L.J. 1085 (1987). For annual survey on trial practice and procedure, see 42 Mercer L. Rev. 469 (1990). For article, "Standing Orders: Filling the Gap Between the Civil Practice Act and the Practice," see 9 Ga. St. B.J. 28 (2004). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For annual survey on trial practice and procedure, see 61 Mercer L. Rev. 363 (2009). For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For note, "Default Judgments Under the Federal Rules of Civil Procedure and the Georgia Civil Practice Act," see 7 Ga. St. B.J. 385 (1971). For note, "Preferential Treatment of the United States Under Federal Civil Discovery Procedures," see 13 Ga. L. Rev. 550 (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 on Millholland v. Oglesby, 223 Ga. 230, 154 S.E.2d 194 (1967), see 4 Ga. St. B.J. 392 (1968). 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
• Order Compelling Discovery
• Failure to Comply with Order
• Expenses on Failure to Admit
• Failure to Respond to Discovery Requests

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Depositions and Discovery, § 200 et seq.

- 27 C.J.S., Discovery, §§ 49, 98 et seq., 115-117, 180, 181. 35A C.J.S., Federal Civil Procedure, §§ 592 et seq, 674 et seq., 707, 709, 710, 738, 746, 753. 35B C.J.S., Federal Civil Procedure, §§ 788 et seq., 1164, 1330.

- Validity of statutory provision for attorneys' fees, 90 A.L.R. 530.

Constitutionality, construction, and application of statutes or rules of court which permit setting aside a plea and giving judgment by default, or dismissing suit, because of disobedience of order, summons, or subpoena duces tecum requiring production of documents, 144 A.L.R. 372.

Admissibility of evidence of party's refusal to permit examination or inspection of property or person, 175 A.L.R. 234.

Granting relief not specifically demanded in pleading or notice in rendering default judgment in divorce or separation action, 12 A.L.R.2d 340.

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

Taxation of costs and expenses in proceedings for discovery or inspection, 76 A.L.R.2d 953.

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

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

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

Failure of party or his attorney to appear at pretrial conference, 55 A.L.R.3d 303.

Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109.

Tort or statutory liability for failure or refusal of witness to give testimony, 61 A.L.R.3d 1297.

Construction and application of state statute or rule subjecting party making untrue allegations or denials to payment of costs or attorney's fees, 68 A.L.R.3d 209.

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

Award of damages for dilatory tactics in prosecuting appeal in state court, 91 A.L.R.3d 661.

Attorney's conduct in delaying or obstructing discovery as basis for contempt proceeding, 8 A.L.R.4th 1181.

Judgment in favor of plaintiff in state court action for defendant's failure to obey request or order for production of documents or other objects, 26 A.L.R.4th 849.

Dismissal of state court action for failure or refusal of plaintiff to obey request or order for production of documents or other objects, 27 A.L.R.4th 61.

Judgment in favor of plaintiff in state court action for defendant's failure to obey request or order to answer interrogatories or other discovery questions, 30 A.L.R.4th 9.

Dismissal of state court action for failure or refusal of plaintiff to appear or answer questions at deposition or oral examination, 32 A.L.R.4th 212.

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.

Propriety of allowing state court civil litigant to call nonexpert witness whose name or address was not disclosed during pretrial discovery proceedings, 63 A.L.R.4th 712.

Authority of court, upon entering default judgment, to make orders for child custody or support which were not specifically requested in pleadings of prevailing party, 5 A.L.R.5th 863.

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

Sanctions for failure to make discovery under Federal Civil Procedure Rule 37 as affected by defaulting party's good faith efforts to comply, 134 A.L.R. Fed 257.

Federal district court's power to impose sanctions on non-parties for abusing discovery process, 149 A.L.R. Fed. 589.

Propriety of exclusion of expert testimony as sanction under Federal Civil Procedure Rule 37 (b)(2)(B) for violation of discovery order, 151 A.L.R. Fed. 561.