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Failure to Respond to Discovery

Although in a perfect world it would not happen, in practice it is common that a party either does not respond to discovery or gives evasive “non-answers” to discovery that is propounded by the either party.  In these types of cases, what is a party to do if they really need the information that they requested?  The short answer is attempt to work it out with the opposing party and, if that fails, turn to the court for guidance and possible sanctions.

First, as common sense should tell you, the parties themselves should attempt to work out any discovery disputes.  There is a formalized process for doing so in Georgia, however, in short it is to explain to the opposing party what it is about their responses that you believe are insufficient and to request that they reconsider their answer and provide the requested response or documents requested.

First, as common sense should tell you, the parties themselves should attempt to work out any discovery disputes.  

In the event that the parties cannot work it out, Georgia law does provide a formalize process for a party to force the other party.  Specifically, in Georgia if a party fails to respond to a discovery request, or fails to respond to a question propounded during a deposition, the requesting party may “move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request.” O.C.G.A. § 9-11-37(a)(2).  Additionally, if a party provides evasive or incomplete answers in response to a deposition question or other discovery request, that answer may be treated as a failure to answer.  If the motion is granted, the party whose conduct necessitated the motion, or her attorney, may be ordered by the court to pay the moving party’s reasonable expenses incurred in obtaining the order, including attorney's fees. O.C.G.A. § 9-11-31(a)(4)(a).

If a party fails to obey a court order to provide or permit discovery in a matter, the court in which the action is pending may enter one of the following orders:

(A) “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;

(B)  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;

(C) 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;

(D) 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

(E)  Where a party has failed to comply with an order … 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.”

O.C.G.A. § 9-11-37(b)(2).

In addition to, or in lieu of entering any of the above cited orders, a court may require the disobedient party or his attorney to pay the reasonable expenses, including attorney's fees, caused by his failure to comply with the discovery order. Id.   A party may also be ordered to pay the reasonable expenses incurred by the opposing party in efforts to obtain a response if that party failed to admit the genuineness of any document or the truth of any matter as requested in a request to admit or if that party fails to attend a deposition after receiving notice, failed to serve answers in response to interrogatories or failed to serve responses to requests for the production and inspection of documents. O.C.G.A. § 9-11-37(c)(d).

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