Discovering Clarity: a Call to Renovate Georgia’s Discovery Landscape
| Publication year | 2014 |
| Pages | 0010 |
by Joseph C. Sullivan
You have experienced it before: an Outlook reminder appears on the computer screen and you are bluntly reminded that the discovery period in one of your cases is set to expire at the end of the month (or so you think). Your stomach begins to churn and little beads of sweat start to form just above your ever-increasing receding hairline — you ask yourself: "have five months already passed?" After a frantic review of the case documents, depositions and initial discovery responses, it becomes apparent that clarification is required on a previous interrogatory response or that recently obtained deposition testimony has unearthed additional documentation not previously produced. Although you believe 30 days remain in the discovery period, confusion (then panic) begins to set in: can you serve additional discovery requests at any time before the next 30 days expires, or must you immediately hand-serve the requests so the opposing side is afforded its statutorily provided 30 days in which to serve its responses?
Ignoring the increasing sweat consolidating around your eyebrows, you casually (yet quickly) ask your officemates for some guidance, but remain befuddled. Half of your neighbors indicate that you can still serve discovery so long as the initial six-month discovery period, which they claim is automatically provided under Georgia law, remains open. The other half indicate that immediate, hand-service of your discovery requests is required. They explain that if the initial sixmonth discovery period expires before the responses to your requests are actually due (i.e., if responses to your proposed requests are not due within the next 30 days), the opposing side can simply avoid responding altogether because, by operation of law, the discovery period would be over at that time. Unsatisfied with the resulting uncertainty, you struggle to remember your Westlaw password and conduct actual legal research.
Your research uncovers the following: discovery need not be completed within six months, just promptly and diligently pursued within that time period if one seeks to utilize the compulsory powers of the court.[1] If discovery need not be completed within six months, you ask, then why are you so worried? Although you have determined that discovery need not be completed within six months, you continue your research to ascertain what constitutes the "prompt" and "diligent" pursuit of discovery under Georgia law. Instead of finding comforting clarification, you are left even more confused with a Georgia Uniform Superior Court Rule[2](the Rule) that provides:
In order for a party to utilize the court's compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within six months after the filing of the answer. At any time, the court, in its discretion, may extend, reopen or shorten the time to utilize the court's compulsory process to compel discovery.[3]
As a result, you have established that, although discovery need not be completed within six months, in order to compel responses to your anticipated discovery requests, the same must have been "commenced promptly, pursued diligently and completed without unnecessary delay and within six months after the filing of the answer."[4] In other words, there is no "Black Letter Law" when it comes to discovery deadlines in civil actions filed in Georgia's superior and state court systems. Indeed, the entire system appears to be built towards forcing our already overcrowded, overworked and understaffed judiciary to get involved in the undisputed bane of their legal existence: discovery disputes. In response, you quickly draft the required discovery requests and serve them via hand-delivery on your opposing counsel in hopes of avoiding any additional conflict. Next time, you tell yourself, you will set the calendar reminder for an earlier date.
The sequence of discovery in Georgia's legal system should not be so complicated. For instance, although one must engage in "prompt" and "diligent" discovery (that must also have been conducted within six months of the filing of the answer) in order to compel discovery responses, neither party is actually entitled to a full six months to conduct discovery under the existing Rule.[5] This fact is simply inconceivable to most litigators in our state, due in part to confusing uniform superior/state court rules (and even more perplexing cases analyzing those rules): in Georgia, no litigant is provided six months (or any other defined period) within which to engage in discovery. Indeed, U.S.C.R. 5.1 "does not . . . require that [a litigant] be given six months in which to complete discovery."[6] Nor does the Rule require that a litigant move to compel within the initial six months after an answer is filed.
The [R]ule makes the commencement and pursuit of discovery within the six-month discovery period a condition of using the trial court's compulsory process. It does not require the compulsory process itself to be requested within the discovery...
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