Discovery violations frequently occur in lawsuits, including divorce actions and other family matters. Through accident or intentional gamesmanship, parties served with written discovery requests or deposition notices too often ignore their obligations to respond or respond evasively. The victims of discovery abuses cry foul. They accuse the recalcitrant parties of trial by ambush when the offenders attempt to use information withheld in discovery as evidence at a hearing. Naturally, the offended parties demand sanctions against the violators. This article explores the remedies available to a judge at or prior to trial for a party’s violations of its discovery obligations, particularly the obligations to answer written interrogatories and respond to requests for production of documents and tangible things.

In Georgia, judges have statutory authority to impose a variety of sanctions for a party’s discovery violations, including a party’s failure to respond properly to written interrogatories and requests for production.(1) A non-exhaustive list of authorized relief for such discovery failures includes three potent remedies among others:

(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.

In essence, a judge may impose any of those three sanctions under either of two circumstances: first, if the court previously entered an order to provide or permit discovery, and a party has violated that order; or, second, if a party has failed to serve answers or objections to interrogatories or fails to serve a written response to a request for production.(3) The latter situation, enabling imposition of immediate sanctions, applies to nothing less than a serious or total failure to respond to interrogatories or a request for production.(4)

Generally, when a party serves interrogatories or requests for production on another party, the party served must either respond or seek a protective order. If the party serves a written response, the discovering party must decide whether to accept the response or move the court to compel discovery. At a hearing on the motion, the court will rule on the adequacy of the responses and the validity of the objections to the discovery requests. If the court deems the responses inadequate, it may enter an order compelling more adequate responses. A subsequent violation of that order then enables the court to impose any of the statutory sanctions described above.(5)

In instances where a party, prior to trial, has not moved to compel discovery or otherwise attempted to obtain more information regarding evasive or incomplete discovery responses, the court properly should grant a continuance if the other party attempts a surprise introduction of hidden information at trial.(6)

A continuance is not the proper remedy, however, when a party has provided a false or deliberately misleading discovery response or has deliberately concealed the name of a material witness. “When a party receives a substantive response to a discovery request, they are entitled to believe that answer, and they are not required to file a motion to compel or seek clarification of that substantive response in order to obtain sanctions should they later learn that the answer provided was false or intentionally misleading… This is because an intentionally false response to a written discovery request, particularly when it concerns a pivotal issue in the litigation, equates to a total failure to respond, triggering [the immediate statutory] sanctions.”(7)

In any of the appropriate circumstances described above, a trial court can impose immediate sanctions without having previously entered an order compelling discovery, so long as a motion has been filed asserting the discovery violation, the violator has received notice of the motion, and the court has held a hearing on the motion.(8)

To preclude evidence at trial, accept designated facts, or strike pleadings for discovery violations, a judge need not find a willful failure to comply with discovery.(9) The sanctions for failure to comply with discovery provisions of Georgia’s Civil Practice Act require “only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.”(10) For example, a party consciously fails to respond to discovery requests when he is aware of the existence of those requests and does not assert that his failure to respond was accidental or involuntary.(11)

(1) O.C.G.A. § 9-11-37(b) and (d).

(2) O.C.G.A. § 9-11-37(b)(2).

(3) Id., and O.C.G.A. § 9-11-37(d)(1).

(4) Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 439(2), 254 S.E.2d 825 (1979).

(5) Id., 243 Ga. at 438(2).

(6) Resurgens, P.C. v. Elliott, 301 Ga. 589, 595(2), 800 S.E.2d (580).

(7) Id., 301 Ga. 595-596(2).

(8) Stolle v. State Farm Mut. Auto. Ins. Co., 206 Ga.App. 235, 237(3), 424 S.E.2d 807 (1992); and Cook v. Lassiter, 159 Ga.App. 24, 25, 282 S.E.2d 680 (1981).

(9) Stolle, supra, 206 Ga.App. at 236(3).

(10) Id., citing Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga.App. 344, 345, 373 S.E.2d 50 (1988).

(11) See Stolle, supra, 206 Ga.App. at 237(3).