Editor's note.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 21, T. 38 are included in the annotations for this Code section.

Georgia Laws 1972, p. 510, made substantial revisions to certain sections of this chapter dealing with discovery. Prior to the 1972 amendment, this section was substantially the same as former Code 1933, § 38-2105. Hence, decisions based on this section prior to its 1972 amendment should be consulted with care.

Powers of trial court.

- Trial court has the power under O.C.G.A. § 9-11-30 to control the details of time, place, scope, and financing of a deposition for the protection of the deponents and parties. Bicknell v. CBT Factors Corp., 171 Ga. App. 897, 321 S.E.2d 383 (1984).

Deposition of witness in opposing party's absence void.

- When a physician in a worker's compensation case refused to give a deposition in front of the appellee, the appellant's election to proceed in the appellee's absence voided an otherwise valid procedure, and therefore the deposition was not erroneously excluded from consideration in making the award to the appellee. Georgia Power Co. v. Brown, 169 Ga. App. 45, 311 S.E.2d 236 (1983).

Videotaping of deposition permitted.

- Under subsection (b)(4) of this section, the taking of a deposition by videotaping, when otherwise permitted by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), is proper. Mayor of Savannah v. Palmerio, 135 Ga. App. 147, 217 S.E.2d 430 (1975).

Testimony of a witness by videotape is a better substitute for actual live testimony than the reading of a stenographic transcript provided by a court reporter. Mayor of Savannah v. Palmerio, 135 Ga. App. 147, 217 S.E.2d 430 (1975).

Testimony by department's representative improperly excluded.

- Georgia Department of Transportation (DOT) was permitted to present evidence through the department's representative of its breach of contract damages under O.C.G.A. § 13-6-2 on its counterclaim because an asphalt company's argument, that the damages calculations were too speculative because the DOT was unable to show the exact amount of hydrated lime in each lot of asphalt, was asserting an insufficiency in the evidence that was not appropriately resolved on the company's motion in limine. State, DOT v. Douglas Asphalt Co., 297 Ga. App. 470, 677 S.E.2d 699 (2009), appeal dismissed, 297 Ga. App. 511, 677 S.E.2d 728 (2009).

Waiver of objection to videotape of deposition.

- Objection based on lack of court order allowing videotaping of deposition was waived since no objection to the videotaping was raised prior to trial. Even if the objection was timely made at trial, any error in the admission of the videotaped deposition was harmless because the videotaping was conducted in substantial compliance with required technical conditions and procedures. DuBois v. Ray, 177 Ga. App. 349, 339 S.E.2d 605 (1985).

Protective order barring video conference deposition proper.

- Trial court did not abuse the court's discretion in granting an assistant professor's motion for a protective order to bar a video conference deposition because the Board of Regents of the University System of Georgia (BOR) did not seek a court order, and the professor did not stipulate to the taking of the deposition; the BOR did not demonstrate any harm as a result of the trial court's action. Bd. of Regents of the Univ. Sys. of Ga. v. Ambati, 299 Ga. App. 804, 685 S.E.2d 719 (2009), cert. denied, No. S10C0086, 2010 Ga. LEXIS 34 (Ga. 2010).

As between parties, no subpoena is required or necessary for the taking of a deposition. Millholland v. Oglesby, 114 Ga. App. 745, 152 S.E.2d 761 (1966), rev'd on other grounds, 223 Ga. 230, 154 S.E.2d 194 (1967) (decided under former Code 1933, Ch. 21, T. 38).

Notice of deposition not effective.

- In post-judgment discovery proceedings, an email agreement between counsel on a date for the judgment debtor's wife's deposition did not constitute a notice of deposition under O.C.G.A. § 9-11-30(b), because the notice was not served on the judgment debtor; because the notice of deposition was not effective, the creditor could not be sanctioned for failing to show up on the agreed date. RL BB ACQ I-GA CVL, LLC v. Workman, 341 Ga. App. 127, 798 S.E.2d 677 (2017).

Prompt notification of defect in notice required.

- While proper notice is required for taking of a deposition, the opposing party must promptly notify the party giving the notice if the notice is technically deficient in any manner. Republic Nat'l Bank v. Hodgson, 124 Ga. App. 11, 183 S.E.2d 4 (1971).

Rationale for prompt objection to deficient notice.

- Rationale of requirement that written objection to a deficient notice of deposition be made promptly, failing which the error or irregularity in the notice is deemed to have been waived, is the same as that for the requirement that objection to the evidence be made at the time of taking depositions. Republic Nat'l Bank v. Hodgson, 124 Ga. App. 11, 183 S.E.2d 4 (1971).

Tardy demand that deposition be signed.

- When a deposition is taken for the express purpose of being used as evidence at trial the next day, and the opposing party is well aware that by the time the transcript is prepared the witness will be unavailable to sign the transcript, but makes no demand for the witness's signature until it is clear that compliance will be impossible, and when there is no contention or indication that any of the testimony in the deposition is improperly transcribed, the trial court acts within the court's discretion in allowing the deposition to be used as evidence. Spector v. Lankford, 151 Ga. App. 397, 259 S.E.2d 654 (1979).

Deposition erroneously admitted because deponent not permitted to read and sign.

- Because a former homeowner testified by affidavit that the former homeowner was never notified by the officer that a deposition transcript was available for examination and signature, and the defendants in the wrongful eviction action offered no testimony or evidence to rebut the former owner's affidavit, the trial court erred by admitting the former owner's deposition for purposes of summary judgment. However, admission of the deposition was harmless error because the operative evidence came in through the homeowner's and others' affidavits. Steed v. Fed. Nat'l Mortg. Corp., 301 Ga. App. 801, 689 S.E.2d 843 (2009).

Harmless error to exclude deposition testimony.

- Although the deposition of the former employer's agent in response to the former employee's request for a deposition under O.C.G.A. § 9-11-30(b)(6) was admissible under O.C.G.A. § 9-11-32(a), because the agent had no direct personal knowledge of the employee's contract or the contract's termination, the agent's deposition testimony had no probative value as to the matters for which the testimony was proffered, specifically for rebuttal and impeachment purposes; thus, it was harmless error to exclude the testimony. Griffin v. Greene County Hosp. Auth., 260 Ga. App. 122, 578 S.E.2d 913 (2003).

Discretion of trial court.

- Trial judge has broad control over the use and limitations of discovery procedures, and unless there is a clear abuse of this discretion the appellate courts will not interfere. Jackson v. Gordon, 122 Ga. App. 657, 178 S.E.2d 310 (1970).

Direct examination of deposed witness.

- What constitutes the direct examination of a witness whose testimony was initially taken for discovery cannot be determined until the trial, when one of the parties elects to use the testimony on one's own behalf; at that time, rules governing direct and cross-examination would apply. Travis Meat & Seafood Co. v. Ashworth, 127 Ga. App. 284, 193 S.E.2d 166 (1972).

Transcription and copies.

- Nondeposing party is entitled to have a deposition of the witness transcribed and to have a copy of the transcript, provided that the nondeposing party pays for the transcript, even though the deposing party decided, after taking the deposition, not to have the deposition transcribed, but merely to acquire the take-down notes from the reporter. Sams v. Champion, 184 Ga. App. 444, 361 S.E.2d 852 (1987).

Post-judgment discovery.

- Trial court had jurisdiction to compel a non-resident judgment debtor to attend a postjudgment deposition in Georgia; under O.C.G.A. § 9-11-69, the judgment creditor was entitled to notice the deposition under O.C.G.A. § 9-11-30, and the geographical limitations of O.C.G.A. § 9-11-45 did not apply. Heard v. Ruef, Ga. App. , 815 S.E.2d 607 (2018).

Changes to deposition.

- Witness may make any changes in form or substance which the witness desires, even if the changes contradict the original answers or even if the reasons for making the changes are unconvincing. J.H. Harvey Co. v. Reddick, 240 Ga. App. 466, 522 S.E.2d 749 (1999).

Errata sheet.

- Because the certificate of an officer before whom a deposition was taken did not reflect when the deposition was submitted to the appellant and did not contain a statement that the appellant waived or otherwise failed to sign the deposition, the record did not positively reflect that the errata and the signature sheets were not part of the appellant's deposition and, therefore, the errata sheet was considered. Young v. YMCA of Metro. Atlanta, Inc., 204 Ga. App. 224, 419 S.E.2d 97 (1992).

Attorney fees and expenses for nonattendance at a deposition are available only in the instance of the failure of the party taking the deposition to appear. Ingram v. Star Touch Communications, Inc., 215 Ga. App. 329, 450 S.E.2d 334 (1994).

Suit properly dismissed due to party's failure to attend scheduled depositions that were properly noticed.

- Motorist's suit was properly dismissed under O.C.G.A. § 9-11-37(d) as the motorist failed to attend any of three scheduled depositions that were properly noticed under O.C.G.A. § 9-11-30(b)(1), defense counsel was not required to address the motorist's proposed discovery plan, and counsel's failure to do so did not excuse the motorist's failure to attend the depositions. Pascal v. Prescod, 296 Ga. App. 359, 674 S.E.2d 623 (2009).

Insurer was not entitled to attorney fees for preparing the motion for attorney fees because it presented no authority to support its position that the time preparing the motion for attorney fees constituted reasonable expenses incurred by the insurer and its attorney in attending the scheduled deposition; thus, even if the court decided to award the insurer attorney fees, the insurer would not be entitled to an award for those hours. Auto-Owners Ins. Co. v. Tracy, 344 Ga. App. 53, 806 S.E.2d 653 (2017).

Subcontractor's attorney presented evidence that the attorney and the attorney's young son were ill on the date of the scheduled deposition and that the attorney inadvertently failed to timely notify counsel for the insurance company in advance; thus, in light of the use of the word "may" in O.C.G.A. § 9-11-30, and the explanation provided by the attorney, the trial court did not abuse the court's discretion in denying the insurer's motion for attorney fees. Auto-Owners Ins. Co. v. Tracy, 344 Ga. App. 53, 806 S.E.2d 653 (2017).

Deposition improperly excluded because it was an unsigned copy.

- In a parents' action against a care home arising out of the death of their adult son, the trial court erred in refusing to consider a copy of the deposition of the parents' expert because the deposition was not an original and had not been signed by the deponent; the copy contained the court reporter's signed certification that the transcript was a true and complete record of the evidence given by the expert. Blake v. KES, Inc., 329 Ga. App. 742, 766 S.E.2d 138 (2014).

Use of representative's deposition subject to the rules of evidence.

- In a medical malpractice case, the patient's survivor could not use the deposition of a surgery center's representative taken under O.C.G.A. § 9-11-30(b)(6) to establish the doctor's standard of care without regard to O.C.G.A. § 24-7-702, governing the admissibility of expert testimony; O.C.G.A. § 9-11-32(a) allowed the use of such depositions for any purpose but required application of the rules of evidence. Yugueros v. Robles, 300 Ga. 58, 793 S.E.2d 42 (2016).

Cited in Herring v. R.L. Mathis Cert. Dairy Co., 121 Ga. App. 373, 173 S.E.2d 716 (1970); Hodges v. Youmans, 122 Ga. App. 487, 177 S.E.2d 577 (1970); Robinson v. J.C. Penney Co., 124 Ga. App. 221, 183 S.E.2d 782 (1971); Thomas v. Home Credit Co., 133 Ga. App. 602, 211 S.E.2d 626 (1974); Dalton v. Vanderkooi, 134 Ga. App. 381, 214 S.E.2d 670 (1975); Taylor v. Stapp, 134 Ga. App. 468, 215 S.E.2d 23 (1975); Commercial Union Ins. Co. v. Crews, 139 Ga. App. 521, 229 S.E.2d 14 (1976); Rachel v. Simmons Co., 141 Ga. App. 236, 233 S.E.2d 56 (1977); Sacks v. Bell Tel. Labs., Inc., 149 Ga. App. 799, 256 S.E.2d 87 (1979); Atlanta Assocs. v. Westminster Properties, Inc., 155 Ga. App. 204, 270 S.E.2d 280 (1980); Williams v. Church's Fried Chicken, Inc., 158 Ga. App. 26, 279 S.E.2d 465 (1981); Sherrill v. Martin, 161 Ga. App. 558, 288 S.E.2d 648 (1982); Atlanta Coca-Cola Bottling Co. v. Rosser, 250 Ga. 52, 295 S.E.2d 827 (1982); Torok v. Mize, 164 Ga. App. 357, 296 S.E.2d 738 (1982); Georgia Farm Bldgs., Inc. v. Willard, 170 Ga. App. 327, 317 S.E.2d 229 (1984); Osborne v. Bank of Delight, 173 Ga. App. 322, 326 S.E.2d 523 (1985); Anderberg v. Georgia Elec. Membership Corp., 175 Ga. App. 14, 332 S.E.2d 326 (1985); Abalene Pest Control Serv., Inc. v. Orkin Exterminating Co., 196 Ga. App. 463, 395 S.E.2d 867 (1990); Wal-Mart Stores, Inc. v. Lee, 290 Ga. App. 541, 659 S.E.2d 905 (2008); McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga. App. 595, 660 S.E.2d 397 (2008); Jones v. Baran Co., LLC, 290 Ga. App. 578, 660 S.E.2d 420 (2008); Davis v. Harpagon Co., LLC, 283 Ga. 539, 661 S.E.2d 545 (2008); Yeary v. State, 289 Ga. 394, 711 S.E.2d 694 (2011); Estate of Pitts v. City of Atlanta, 323 Ga. App. 70, 746 S.E.2d 698 (2013); RLBB Acquisition, LLC v. Baer, 329 Ga. App. 483, 765 S.E.2d 662 (2014); Atl. Geoscience, Inc. v. Phoenix Dev. & Land Inv., LLC, 341 Ga. App. 81, 799 S.E.2d 242 (2017).

Editor's notes.

- Georgia Laws 1972, p. 510, made substantial revisions to certain sections of this chapter dealing with discovery. Prior to the 1972 amendment, this section was substantially the same as former Code 1933, § 38-2105. Hence, material based on this section prior to its 1972 amendment should be consulted with care.

Changes made under subsection (e) not limited.

- Subsection (e) of O.C.G.A. § 9-11-30 places no limitations on the type of changes that may be made by a witness before signing a deposition. 1987 Op. Att'y Gen. No. 87-17.

No permanent record is required for depositions and interrogatories; while depositions and interrogatories are required to be filed with the clerk, being evidence, depositions and interrogatories are not considered part of the permanent record of the trial court. 1970 Op. Att'y Gen. No. U70-232.

No filing or recording fee can be charged for depositions or interrogatories. 1970 Op. Att'y Gen. No. U70-232.

Contracts for reporting depositions.

- Court reporter may enter into contracts for reporting depositions so long as the contract does not render the reporter an "employee" or "financially interested in the action"; however, charging different rates to various participants in a single deposition may constitute the charging of "unreasonable" fees and court reporters may not provide kickbacks to a party. 1993 Op. Att'y Gen. No. 93-18.

Notice of deposition required.

- O.C.G.A. § 9-11-45 provides that a subpoena shall issue for persons sought to be deposed and may command the person to produce documents. O.C.G.A. § 9-11-30(b)(1) requires notice to every other party of all depositions. Reading §§ 9-11-30 and9-11-45 together, it is obvious that before a subpoena can be issued, notice of the deposition must be given to all parties. Adv. Op. No. 84-40 (September 21, 1984).

Am. Jur. 2d.

- 23 Am. Jur. 2d, Depositions and Discovery, § 85 et seq.

C.J.S.

- 26B C.J.S., Depositions, §§ 39, 48, 55, 59 et seq. 35A C.J.S., Federal Civil Procedure, §§ 562 et seq., 617, 626, 627, 629, 633 et seq., 643 et seq., 654, 666. 35B C.J.S., Federal Civil Procedure, §§ 1366, 1369, 1370.

ALR.

- Withdrawal of paper after delivery to proper officer as affecting question whether it is filed, 37 A.L.R. 670.

Making copies of record or writings part of deposition, 59 A.L.R. 530.

Taking deposition as judicial proceeding as regards law of privilege in libel and slander, 90 A.L.R. 66.

Service of notice of time and place of examination of party witness as sufficient to require his attendance without subpoena for purposes of deposition, 112 A.L.R. 449.

Jurisdiction to require a nonresident party to an action to submit to adverse examination, 154 A.L.R. 849.

Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers, or the like, 37 A.L.R.2d 586.

Construction and effect of Rules 30(b), (d), 31(d), of the Federal Rules of Civil Procedure, and similar state statutes and rules, relating to preventing, limiting, or terminating the taking of depositions, 70 A.L.R.2d 685.

Statements of parties or witnesses as subject to pretrial or other disclosure, production, or inspection, 73 A.L.R.2d 12.

Who is a "managing agent" of a corporate party (to civil litigation) whose discovery-deposition may be taken under Federal Rules of Civil Procedure or state counterparts, 98 A.L.R.2d 622.

Discovery, in products liability case, of defendant's knowledge as to injury to or complaints by others than plaintiff, related to product, 20 A.L.R.3d 1430.

Use of videotape to take deposition for presentation of civil trial in state court, 66 A.L.R.3d 637.

Construction and application of state statute or rule subjecting party making untrue allegations or denials to payment of costs or attorney's fees, 68 A.L.R.3d 209.

Permissibility and standards for use of audio recording to take deposition in state civil case, 13 A.L.R.4th 775.

Dismissal of state court action for failure or refusal of plaintiff to appear or answer questions at deposition or oral examination, 32 A.L.R.4th 212.

Taxation of costs associated with videotaped depositions under 28 U.S.C.A. § 1920 and Rule 54(d) of Federal Rules of Civil Procedure, 156 A.L.R. Fed. 311.

Construction and application of Fed. R. Civ. P. 30(d)(3) authorizing motion to terminate or limit deposition conducted in bad faith or that unreasonably annoys, embarrasses, or oppresses deponent or party, 91 A.L.R. Fed. 2d 381.