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Protective Orders in Discovery

by merlin on July 13th, 2012
  • Sumo

Never, in any litigation, have I sought a protective order in a case.  However, there are many reasons to do this (that I didn’t realize before, having never had a reason to push for them) but, having discovered the annoyance of invasive and irrational Discovery when I have an argument that trumps the inquiry, I have found how useful a thing they can be.  Much as with preservation letters, motions for protective orders will now be standard practice.

The rules addressing them are below:

Georgia Code Section 9-11-26 contains the following provisions –

(c) Protective orders. Upon motion by a party or by the person from whom discovery is sought and for good cause shown, the court in which the action is pending or, alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make anyorder which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) That the discovery not be had;

(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) That certain matters not be inquired into or that the scope of the discovery be limited to certain matters;

(5) That discovery be conducted with no one present except persons designated by the court;

(6) That a deposition, after being sealed, be opened only by order of the court;

(7) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; or

(8) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. Paragraph (4) of subsection (a) of Code Section 9-11-37 applies to the award of expenses incurred in relation to the motion.

 The primary case concerning why these are necessary is Barron v. Spanier, 198 Ga.App. 801, 403 S.E.2d 88 (Ga. Ct. App.  1991).  I’ve put the case below, but the important thing it actually stands for is that there may be valid evidentiary objections to requested Discovery, but the general rule is that all relevant information is Discoverable, so a protective order is necessary to prevent the kind of “fishing expedition” that would result.  This is something I have found written about, and this case was cited as support for that proposition.

Carl A. Johnston, for appellant.

Love & Willingham, John A. Gilleland, Thomas K. Foster, for appellees.

POPE, Judge.

Plaintiff Sarah Barron filed a complaint for medical malpractice against defendant Jacob Spanier, M.D., on August 21, 1989. Defendant filed a timely answer and served interrogatories upon plaintiff on October 23, 1989. When a timely response was not received, defendant’s attorney made a good faith effort to resolve the matter, as required by Rule 6.4(B) of the Uniform Superior Court Rules, by writing a letter to plaintiff’s attorney requesting a response by December 11, 1989. The secretary for plaintiff’s attorney called defendant’s attorney and advised him that a response would be served by December 15. Defendant filed a motion to dismiss for total failure to respond to his discovery request on December 28, 1989. Finally, a response to defendant’s interrogatories was served January 9, 1990. The only argument in opposition to defendant’s motion to dismiss, raised by plaintiff in a brief which was untimely filed, was that the motion to compel could not be granted because defendant did not first obtain an order compelling plaintiff to respond to discovery. Plaintiff appeals the order dismissing the complaint.

The appellate courts of this state have repeatedly held that a total failure to respond to a discovery request subjects a party to immediate sanctions pursuant to OCGA § 9-11-37(d). See, e.g., Mayer v. Interstate Fire Ins. Co., 243 Ga. 436254 S.E.2d 825 (1979)Bryant v. Nationwide Ins. Co., 183 Ga.App. 577359 S.E.2d 441 (1987)Vlasz v. Schweikhardt, 178 Ga.App. 512(2), 343 S.E.2d 749 (1986)Danger v. Strother, 171 Ga.App. 607(1), 320 S.E.2d 613 (1984); Wetherington v. Koepenick, etc., 153 Ga.App. 302(1), 265 S.E.2d 107 (1980). Thus, contrary to plaintiff’s argument below, defendant was not required first to obtain an order compelling plaintiff to respond to his interrogatories. Nor does the fact that plaintiff ultimately filed a response after defendant filed his motion to dismiss save plaintiff from the sanction of dismissal. See Singleton v. Eastern Carriers, 192 Ga.App. 227(3), 384 S.E.2d 202 (1989); Danger v. Strother, supra at (2); Rucker v. Blakey, 157 Ga.App. 615278 S.E.2d 158 (1981).

On appeal, plaintiff argues the trial court erred in finding the failure to respond was wilful; but no explanation or excuse is offered for plaintiff’s failure except for admitting the failure was careless and showed unvigorous prosecution of the case. “There is no requirement that the [party subject to sanctions] display and the trial court find actual ‘wilfulness.’ The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.” (Citations and punctuation omitted.) Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga.App. 344, 345373 S.E.2d 50 (1988). Where, as here, the only reason set forth by the party who failed to respond to discovery does not show the failure was accidental or involuntary, dismissal is appropriate. See Evans v. East Coast Intermodal, etc., 191 Ga.App. 749382 S.E.2d 743 (1989). See also Wetherington v. Koepenick, etc., supra.

Because the applicable law is indisputably clear and plaintiff’s appeal has no arguable merit we impose a penalty for frivolous appeal, pursuant to Rule 26(b) of the Rules of the Court of Appeals, and we direct the trial court to impose upon plaintiff a penalty of $500 upon receipt of the remittitur.

Judgment affirmed with direction.

Beasley and Andrews, JJ., concur.

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