Discovery in Civil Cases

[Jim]

Georgia’s Discovery Process in Divorce Cases
During a civil case, one of the party’s attorneys may suggest using one of the discovery procedures to obtain information from the opposing side. Discovery is especially useful in highly contested divorce cases because the opposing party will be required by law to disclose information to their spouse’s attorney. According to O.C.G.A. § 9-11-26(c), there are four types of discovery. Three of the discovery methods are written while the remaining one is done in person. The three written types of discovery are:

Interrogatories (see O.C.G.A. § 9-11-33): Interrogatories are questions that one spouse may ask to the other spouse requesting certain information. Most interrogatories request such things as names and addresses of certain witnesses vital to the case, employment history, and the names and addresses of anyone with whom the opposing spouse may have had sexual relations during the parties’ marriage. According to O.C.G.A. § 9-11-33(a)(1), each side is limited to only fifty interrogatories, including any subparts. Each of the parties’ attorneys can ask all fifty interrogatories at one time or he or she can split them up and ask them at different points throughout the discovery process.

Requests for Production of Documents (see O.C.G.A. § 9-11-34): Typically, when an attorney decides to send the opposing party a set of Interrogatories, he usually sends Requests for Production of Documents along with them. When an attorney would like to see a specific document, such as the spouse’s paystub, the parties’ tax return, bank statements, or cell phone records, he or she will ask the opposing attorney to give them a copy of these documents in the Request for Production of Documents. The reason that the Requests for Production of Documents are sent in conjunction with the Interrogatories is because the attorney may ask for copies of documents that he or she previously asked about in the Interrogatories. The attorney, however, is not required to do so. Unlike Interrogatories, there is no set limit on the number of Requests for Production of Documents the attorney may ask.


Requests for Admissions (see O.C.G.A. §9-11-36): Out of the four types of discovery, attorneys send Requests for Admissions the least. Requests for Admissions are basically statements that one party may ask to another party and he or she must admit or deny the statements under oath. An attorney may send Requests for Admissions to the other side if he or she wants the truth from the other side, such as if one party had sexual relations with someone other than his or her spouse during the marriage. Like Requests for Production of Documents, there is no limit on the number of Requests for Admissions that you can send to the opposing side during the discovery process

[Jim]

Discovery rules are jurisdictional. Each jurisdiction has its own set of
rules as to how to respond to discovery requests. The first thing to do
is the read the local rules for discovery for each type of discovery you
have received, and see what the limitations are, if any.
Also, be aware that in general, unless the discovery is identified as,
for example, a "Standard Interrogatory", which usually means one that
is
approved by the civil practice courts in a particular jurisdiction, you
can object if there is clearly no necessity for the opposing side to have
the information, and the disclosure of the information is likely to
create confidentiality issues later on.
For example, if you are involved in litigation that relates to a motor
vehicle accident, and you are not claiming that you suffered any personal
injuries, your medical condition is totally irrelevant, unless there is
an allegation that your medical condition caused the accident. If the
law enforcement authorities investigated the event, and did not find
cause to suspect medical issues, such as intoxication, etc., any
medically related questions are irrelevant.
To object, you may, for example, reply with this type of language:
"Objection. The information sought is not reasonably calculated to lead to the discovery
of relevant, admissible evidence."
If the jurisdiction you are in requires you to place your responses on
the same sheet of paper that you were served with, you can attach a list
of objections, and in response to a particular request, insert: "Previously objected to."
If the request demands something that the other side can obtain as easily
as you can, or requires you to expend significant amounts of funds or
time, you can object on the basis that the request is over broad, unduly
cumbersome, and not reasonably calculated, etc. Remember, if you
interpose an objection, and you are later ordered to comply, you may not
be able to interpose a different objection, so make sure that you state
ALL grounds to object on the first response you serve.
Again, it depends on how the local rules for the jurisdiction are
written.

[Jim]

Use this At A Glance Guide to learn the Georgia Code related to propounding interrogatories in Georgia Superior Court. For more detailed information, please see the SmartRules Interrogatory Guide for the court where your action is pending.
Unless otherwise ordered by the court, there is no limit to the use of written interrogatories. O.C.G.A. 9-11-26(a).
No party may serve more than fifty (50) interrogatories, including subparts, on any other party during the course of discovery without permission of the court. Such permission may be granted based on a showing that the litigation is complex or that the party seeking to serve the interrogatories would endure undue hardship if not allowed to serve the additional interrogatories. O.C.G.A. 9-11-33(a).
A party who has responded to an discovery request with a response that was complete when made has no duty to supplement his response, except if:
1. The discovery request concerns the identity and location of persons having knowledge of discoverable matters;
2. The discovery request concerns the identity of persons likely to be called as experts at trial, the subject matter on which he is expected to testify, and the substance of his testimony;
3. The party later learns that the response was incorrect when made; or
4. The party learns that the statement is no longer true, and his failure to amend the response would amount to a knowing concealment. O.C.G.A. 9-11-26(e)(1); O.C.G.A. 9-11-26(e)(2).
A duty to supplement responses may be imposed by:
1. Order of the court;
2. Agreement of the parties; or
3. New requests for supplementation of prior responses. O.C.G.A. 9-11-26(e)(3).
Interrogatories may relate to any unprivileged matter relevant to the subject matter of the pending action and relating to a claim or defense of any party. O.C.G.A. 9-11-26(b)(1).
An interrogatory is permissible even if the information sought would be inadmissible at trial, as long as the information sought appears reasonably calculated to lead to the discovery of admissible evidence. O.C.G.A. 9-11-26(b)(1). Similarly, an interrogatory is permissible even though the answer would involve an opinion or contention that relates to fact or to the application of law to fact, although the court may order that such an interrogatory need not be answered until designated discovery has been completed, a pre-trial conference has been held, or such other later time as the court may decide. O.C.G.A. 9-11-33(b)(2).
A party may discover the existence and contents of any insurance agreement under which any person providing insurance might be required to satisfy all or part of any judgment entered in the action or to indemnify or reimburse for payment of such judgment. O.C.G.A. 9-11-26(b)(2).
A party may use interrogatories to require another party to identify:
1. Any expert witnesses to be called by such other party at trial;
2. The subject matter of each expert witness’s testimony;
3. The facts and opinions to which the expert will testify; and
4. A summary of the grounds for each opinion of the expert. O.C.G.A. 9-11-26(b)(4)(A)(i). If a party elects to obtain discovery in this matter, however, unless it would be manifestly unjust, the court may require the party seeking discovery to pay the other party a fair portion of the fees and expenses incurred in obtaining the relevant facts and opinions from the expert. O.C.G.A. 9-11-26(b)(4)(C)(ii).
In the case of an expert retained by another party but not expected to testify at trial, a party may only inquire into facts known or opinions held by that expert by obtaining a copy of the expert’s report, if applicable, under the procedures outlined in O.C.G.A. 9-11-35(b) or by showing exceptional circumstances making it impracticable for the party seeking to discover such facts and opinions to obtain the same by other means. O.C.G.A. 9-11-26(b)(4)(B). Unless it would be manifestly unjust, the court must require the party seeking discovery in this manner to pay the other party a fair portion of the fees and expenses incurred in obtaining the relevant facts and opinions from the expert. O.C.G.A. 9-11-26(b)(4)(C)(ii).
The answers to interrogatories generally may be used at trial to the extent that they qualify as admissions under the rules of evidence. O.C.G.A. 9-11-33.
After providing reasonable notice to other parties and persons affected, a party may move the trial court for an order compelling another party to respond, or to respond fully, to previously-served interrogatories. O.C.G.A. 9-11-37(a)(2).
In the alternative, the trial court may enter an order:
1. Providing that certain facts will be taken as true for purposes of the action;
2. Refusing to allow the disobedient party to support or oppose certain claims or defenses, or prohibiting him from introducing certain matters into evidence; or
3. Striking pleadings in whole or in part, or rendering default judgment against the disobedient party. O.C.G.A. 9-11-37(b)(2)(A); O.C.G.A. 9-11-37(b)(2)(B); O.C.G.A. 9-11-37(b)(2)(C).
In addition or as an alternative to the above, the trial court may order the disobedient party or his attorney to pay the reasonable expenses, including attorneys’ fees, caused by the disobedient party’s failure, unless the court finds that the failure was substantially justified or that an award of expenses would be unjust. O.C.G.A. 9-11-37(d)(1).
For these purposes, an evasive or incomplete answer is treated as a failure to answer. O.C.G.A. 9-11-37(a)(3).
The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

[Jim]

Template: REQUEST FOR PRODUCTION OF DOCUMENTS AND
NOTICE TO PRODUCE

www.eighthdistrict.org/Forms/requestofdocumentsspouse.pdf