The Duty to Supplement Discovery—avoid Sandbagging
| Jurisdiction | United States,Federal |
| Citation | Vol. 28 No. 5 Pg. 0017 |
| Pages | 0017 |
| Publication year | 2023 |
The Duty to Supplement Discovery— Avoid Sandbagging
Effective and timely discovery is the key to successful litigation. Those attorneys who are ineffective and untimely are, more often than not, known as appellant's counsel. Use the duty to supplement in Rule 26(e) to prevent sandbagging.
BY EMMA H. CRAMER AND ANTHONY L. COCHRAN
The Georgia Civil Practice Act (the Act) contains a duty to supplement discovery responses under certain circumstances.[1] However, the Act is unclear regarding the time frame within which this supplementation must occur. Supplementation must be made "seasonably."[2] The word "seasonably" is subjective and Georgia courts have not interpreted this term in the context of supplementation.[3] As a result, the issue of whether a party should have supplemented often arises "at the most awkward time, in the midst of trial."[4] Belated disclosure of supplemental information can lead to either the postponement of the trial or exclusion of the information.[5] Georgia law on the duty to supplement is not nearly as well developed as federal law so it is often necessary to rely on federal authority.[6] "Because Georgia's Civil Practice Act is modeled on the Federal Rules of Civil Procedure, decisions of the federal courts interpreting the federal rules are persuasive authority."[7]
Ideally, "[d]iscovery should be carried out in a professional, cooperative fashion in which the goals are to search for the truth, to secure the facts and to avoid surprise."[8] However, trial lawyers often try to employ the element of surprise by keeping opponents in the dark by asserting boilerplate objections to initial discovery requests and then providing a "rolling production" of responsive documents. This rolling production is intended to dribble out responsive documents over time to gain a tactical advantage. They either produce documents after the deposition of a witness connected to the substance of the documents, or they produce key documents on the eve of the deposition camouflaged in a haystack of other documents. Gamesmanship abounds, and the advent of electronic discovery has made it worse. The result is an erosion of the intended benefits of discovery.[9] The federal enactment of proportionality reflects the need to preserve the intended benefits of discovery.[10]
So, how do you protect yourself, and more importantly, your client from the surprise document, fact witness or expert witness that suddenly appears at the last second? The answer to this question depends upon whether opposing counsel is sandbagging[11] you on (1) discovery responses to interrogatories or requests for production, or (2) expert witness disclosures.
You are far more likely to get traction with the trial court if you can show a genuine effort to resolve the dispute to obtain supplemental information instead of simply sending a perfunctory, self-serving email and then filing your motion.
Supplementation of Discovery Responses to Interrogatories and Requests for Production
In order to protect your client from a surprise document or fact witness, request supplementation and request it early. Rule 26(e)(3) in the Civil Practice Act states "[a] duty to supplement responses may be imposed by order of the court, agreement of the parties or at any time prior to trial through new requests for supplementation of prior responses" (emphasis added). A prudent trial lawyer can use this provision by serving a "new request for supplementation of prior responses." This will put the onus on an opposing party who will not agree to anything and avoid having to involve an already overburdened court. Under the plain wording of the statute, a new request automatically "impose[s]" a duty to supplement.
Making Good Use of the Duty to Confer
Both state and federal rules require counsel to confer before presenting a discovery dispute to the court.[12] You are far more likely to get traction with the trial court if you can show a genuine effort to resolve the dispute to obtain supplemental information instead of simply sending a perfunctory, self-serving email and then filing your motion.[13] Rather than doing the minimum by just sending one letter, a trial judge is much more likely to pay attention when a thorough exhaustive effort can be shown in the Certificate of Good Faith Efforts. Moreover, given the time that gets eaten up by filing a motion, waiting 30 days for a response, and then getting on the motions calendar, an aggressive letter-writing campaign can save your client time and fees.
Addressing these issues in the consolidated pretrial order also should put you in good stead with the trial court. Remember that the form for the consolidated pretrial order says in paragraph 5(a), "All discovery has been completed, unless otherwise noted, and the court will not consider any further motions to compel discovery except for good cause shown."
Motion to Supplement to Combat Sandbagging Discovery Responses
Moreover, Rule 26(e) requires supplementation to be made "seasonably."[14]Supplementation should be made "with special promptness as the trial date approaches."[15] "Timeliness means without undue delay."[16] Sandbagging is opposite of acting "seasonably." In response to a request for production of documents, trial lawyers tend to rely upon the standard boilerplate objections and general responses that a "rolling production" of documents will be provided.[17] Then, after the discovery period expires, when you ask for supplementation, your opponent replies that the earlier response was "correct when made" and therefore there is no duty to supplement. Your opponent explains that Rule 26(e) states that there is "no duty to supplement ... except" under specifically limited circumstances and Rule 26(e)(2)(B) states that supplementation is not required because the response was correct when made and there is no "knowing concealment."
The issue then becomes: what is a "knowing concealment?" The wording of Rule 26(e)(2)(B) answers this question obliquely: "A party is under a duty to seasonably amend a prior response if he obtains information upon the basis of which ... [h]e knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend...
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