TITLE 9 CIVIL PRACTICE

Section 11. Civil Practice Act, 9-11-1 through 9-11-133.

ARTICLE 5 DEPOSITIONS AND DISCOVERY

9-11-29.1. When depositions and other discovery material must be filed with court; custodian until filing; retention of depositions and other discovery materials.

Depositions and other discovery material otherwise required to be filed with the court under this chapter shall not be required to be so filed unless:
1. Required by local rule of court;
2. Ordered by the court;
3. Requested by any party to the action;
4. Relief relating to discovery material is sought under this chapter and said material has not previously been filed under some other provision of this chapter, in which event copies of the material in dispute shall be filed by the movant contemporaneously with the motion for relief; or
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.
Until such time as discovery material is filed under paragraphs (1) through (5) of subsection (a) of this Code section, the original of all depositions shall be retained by the party taking the deposition and the original of all other discovery material shall be retained by the party requesting such material, and the person thus retaining the deposition or other discovery material shall be the custodian thereof.
When depositions and other discovery material are filed with the clerk of court as provided in subsection (a) of this Code section, the clerk of court shall retain such original documents and materials until final disposition, either by verdict or appeal, of the action in which such materials were filed. The clerk of court shall be authorized thereafter to destroy such materials upon microfilming or digitally imaging such materials and maintaining such materials in a manner that facilitates retrieval and reproduction, so long as the microfilm and digital images meet the standards established by the Division of Archives and History of the University System of Georgia; provided, however, that the clerk of court shall not be required to microfilm or digitally image depositions that are not used for evidentiary purposes during the trial of the issues of the case in which such depositions were filed.

(Code 1981, §9-11-29.1, enacted by Ga. L. 1982, p. 2374, § 1; Ga. L. 2012, p. 599, § 1-1/HB 665; Ga. L. 2013, p. 594, § 2-1/HB 287.)

The 2013 amendment, effective July 1, 2013, substituted "Division of Archives and History of the University System of Georgia" for "Georgia Department of Archives and History" near the middle of the second sentence of subsection (c).

Law reviews.

- For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For article, "On with the Old!," see 24 Ga. St. B.J. 13 (1987).

JUDICIAL DECISIONS

Burden of timely filing deposition. and other discovery material with the trial court lies with the party which intends to rely upon the materials. Sheffield v. Zilis, 170 Ga. App. 62, 316 S.E.2d 493 (1984); Whisenant v. Fulton Fed. Sav. & Loan Ass'n, 194 Ga. App. 192, 390 S.E.2d 100 (1990).

Because depositions relied upon by a husband and wife in their personal injury and loss of consortium action were not filed prior to the time a motion for summary judgment was ruled upon, their reference to the testimony contained therein could not be considered, and their brief in opposition to the summary judgment motion citing the testimony was not proper evidence for opposing the motion. Parker v. Silviano, 284 Ga. App. 278, 643 S.E.2d 819 (2007).

Paragraph (a)(5) of O.C.G.A. § 9-11-29.1 does not make certification a prerequisite to the use of discovery material in support of a motion. Rather, it is O.C.G.A. § 9-11-56(e) which requires sworn or certified copies of all papers or parts thereof referred to in an affidavit filed in support of or in opposition to a motion for summary judgment. Jacobsen v. Muller, 181 Ga. App. 382, 352 S.E.2d 604 (1986).

Excerpts from personnel file do not need to be certified.

- Excerpts from plaintiff's personnel file did not have to be certified or be part of a sworn affidavit to be considered in support of the defendant's summary judgment motion since these excerpts were produced in response to the plaintiff's request for production of documents in accordance with O.C.G.A. § 9-11-34. Glisson v. Morton, 203 Ga. App. 77, 416 S.E.2d 134 (1992).

Untimeliness of filing discovery materials excused.

- Plaintiff's filing of discovery materials at the summary judgment hearing, pursuant to Ga. Super. Ct. R. 6.5, was allowed although untimely under O.C.G.A. § 9-11-29.1, as it was within the trial court's discretion when it was shown that sufficient reasons existed to justify the lateness and that there was no surprise or manifest injustice caused to the defendant; the plaintiff had notified the defendant that the plaintiff was relying on the discovery materials in the plaintiff's summary judgment motion and the defendant did not complain that the documents had not been filed with the court in the defendant's summary judgment response. Adams v. Adams, 260 Ga. App. 597, 580 S.E.2d 261 (2003).

Order denying an employer's motion for summary judgment as to a security guard's assault and battery claims was vacated, and the case was remanded with direction that the trial court consider a messenger's depositions in deciding the summary judgment motion as to the assault and battery claim issues regarding whether the messenger was an independent contractor or an employee and whether the messenger was acting within the scope of employment at the time the messenger attacked the guard; at the time the trial court held the court's hearing and signed the court's summary judgment order, the employer failed to comply with the employer's obligation under O.C.G.A. § 9-11-29.1(a)(3) to file the original deposition transcripts in the employer's custody as the guard requested. The trial court, which relied on the briefs that cited to and quoted from the depositions, could not review that deposition testimony when the guard cited to the depositions in the guard's trial court briefs, making a formal request that the employer, as custodian, file the original depositions, but the employer did not file the guard's deposition until after the trial court had signed the court's order and did not file the messenger's deposition until months after the appeal was filed. Ga. Messenger Serv. v. Bradley, 302 Ga. App. 247, 690 S.E.2d 888 (2010).

Filing of admissions as exhibits sufficient.

- Since the guest filed the admissions as an exhibit to the guest's opposition to the defendants' motion for summary judgment, the guest was in compliance with O.C.G.A. § 9-11-29.1(a)(5) and the guest was not required to file the admissions again at trial. Vis v. Harris, 329 Ga. App. 129, 764 S.E.2d 156 (2014).

Cited in Lee v. Fuerst & Davis, 173 Ga. App. 362, 326 S.E.2d 482 (1985); Connell v. Houser, 189 Ga. App. 158, 375 S.E.2d 136 (1988); Calhoun v. Bone, 189 Ga. App. 396, 375 S.E.2d 871 (1988); Allstate Ins. Co. v. Ackley, 227 Ga. App. 104, 488 S.E.2d 85 (1997); All Fleet Refinishing, Inc. v. W. Ga. Nat'l Bank, 280 Ga. App. 676, 634 S.E.2d 802 (2006).

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