Failure to Respond to Discovery
What if I Fail to Respond to Discovery?
Divorces and family law matters can be very contentious because of the stakes and emotions involved. Each party has a right to discovery. What happens when I fail to respond to discovery? Or what happens if my spouse/ex refuses to respond to my discovery requests? What about situations where a party refuses to answer the discovery requests fully and gives evasive "non-answers" to discovery?
There are consequences for refusing to respond to discovery requests or failing to respond fully and truthfully. But before exploring those consequences - the quickest and most affordable way to resolve discovery disputes is to attempt to work it out with the opposing party. Only if that fails, should you turn to the court for guidance and possible sanctions.
There is a formalized process for working out discovery disputes in Georgia, however, in short it is to explain to the opposing party what it is about their responses that you believe are insufficient and to request that they reconsider their answer and provide the requested response or documents requested.
What if we Cannot Work out our Discovery Dispute?
In the event that the parties cannot work it out, Georgia law does provide a formalize process for a party to force the other party. Specifically, in Georgia if a party fails to respond to a discovery request, or fails to respond to a question propounded during a deposition, the requesting party may "move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request." O.C.G.A. § 9-11-37(a)(2). Additionally, if a party provides evasive or incomplete answers in response to a deposition question or other discovery request, that answer may be treated as a failure to answer. If the motion is granted, the party whose conduct necessitated the motion, or her attorney, may be ordered by the court to pay the moving party's reasonable expenses incurred in obtaining the order, including attorney's fees.
Georgia Law Regarding Discovery Disputes
If a party fails to obey a court order to provide or permit discovery in a matter, the court in which the action is pending may enter one of the following orders:
(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;
(D) In lieu of any of the foregoing orders, or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; or
(E) Where a party has failed to comply with an order … requiring him to produce another for examination, such orders as are listed in subparagraphs (A), (B), and (C) of this paragraph, unless the party failing to comply shows that he is unable to produce such person for examination."
O.C.G.A. § 9-11-37(b)(2).
In addition to, or in lieu of entering any of the above cited orders, a court may require the disobedient party or his attorney to pay the reasonable expenses, including attorney's fees, caused by his failure to comply with the discovery order. Id. A party may also be ordered to pay the reasonable expenses incurred by the opposing party in efforts to obtain a response if that party failed to admit the genuineness of any document or the truth of any matter as requested in a request to admit or if that party fails to attend a deposition after receiving notice, failed to serve answers in response to interrogatories or failed to serve responses to requests for the production and inspection of documents. O.C.G.A. § 9-11-37(c)(d).