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The Certificate of Service of Discovery

by merlin on August 25th, 2014
  • Sumo

Uniform Rule of Superior Court 5.2 governs the proper method to show service in Discovery (termed generally as a Certificate of Service of Discovery).  It holds as follows:

“(1) Depositions and other original discovery material shall not be filed with the court unless or until required by the provisions of OCGA § 9-11-29.1(a) (1) (5).

(2) A party serving Interrogatories, Requests for Production of Documents, Requests for Admission and Answers or responses thereto upon counsel, a party or a non party shall file with the court a certificate indicating the pleading which was served, the date of service (or that the same has been delivered for service with the summons) and the persons served.”

The statutory subsection that this Rule refers to, (a)(1)(5), is actually something I was completely unaware of until several years after law school, when I first saw a Certificate of Service of Discovery.  While that method means that it is far less costly for a solo practitioner to engage fully in the Civil Discovery process, the issue of fairness is paramount.  This statutory rule attempts to bring a little more fairness to the process by requiring that the items that are used in trial and post-trial motions from Discovery are filed and served, to the extent that they are used.  I have never observed a Discovery fight involving this issue, but the consideration seems valid.  That statutory subsection is below:

“(5) Such material is to be used at trial or is necessary to a pretrial or posttrial motion and said material has not previously been filed under some other provision of this chapter, in which event the portions to be used shall be filed with the clerk of court at the outset of the trial or at the filing of the motion, insofar as their use can be reasonably anticipated by the parties having custody thereof, but a party attempting to file and use such material which was not filed with the clerk at the outset of the trial or at the filing of the motion shall show to the satisfaction of the court, before the court may authorize such filing and use, that sufficient reasons exist to justify that late filing and use and that the late filing and use will not constitute surprise or manifest injustice to any other party in the proceedings.”

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