Editor's notes.

- Georgia Laws 1972, p. 510, made substantial revisions to certain Code sections of this chapter dealing with discovery. Prior to the 1972 amendment, this Code section was substantially the same as former Code 1933, § 38-2111. Hence, decisions based on this Code section prior to its 1972 amendment should be consulted with care.

In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 38-2108, 38-2109, and 38-2111 are included in the annotations for this Code section.

Purpose of 1972 amendment.

- This section was amended in 1972 in order to bring the statute into conformity with the federal rule. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

More frequent sanctions encouraged.

- The 1972 amendments to the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) are intended to encourage more frequent imposition of sanctions in cases in which there has been an abuse of the discovery rules. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Minimal court participation intended.

- System provided by this section is designed to operate as efficiently as possible with minimal participation by the trial court. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Expenses of bringing separate motion for sanctions not allowed.

- Language of O.C.G.A. § 9-11-37(a)(4)(A) clearly contemplated that any award of expenses would be considered and decided at the time the trial court heard and decided the motion for a protective order; therefore, a party who brought a separate sanctions motion to recover the party's costs and fees later could not recover for the cost of filing the separate motion. RL BB ACQ I-GA CVL, LLC v. Workman, 341 Ga. App. 127, 798 S.E.2d 677 (2017).

Statute provides no remedy allowing court to strike answers to interrogatories. Bratten Apparel, Inc. v. Lyons Textile Mill, Inc., 129 Ga. App. 384, 199 S.E.2d 632 (1973).

Fifth Amendment privilege.

- For a discussion of the procedure to be followed to compel discovery when a party raises Fifth Amendment privilege against matters sought to be discovered, see Axson v. National Sur. Corp., 254 Ga. 248, 327 S.E.2d 732 (1985).

Denial of an accused's motion for a protective order under O.C.G.A. § 9-11-26(c) was affirmed as the Fifth Amendment could not be used to justify a protective order to stay all discovery in the accused's civil forfeiture proceeding under O.C.G.A. § 16-14-7 pending the conclusion of the accused's criminal Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., case; while the privilege against self-incrimination extends to answers creating a "real and appreciable" danger of establishing a link in the chain of evidence needed to prosecute, the trial court has to determine if the answers could incriminate the witness, and if the trial court determines that the answers could not incriminate the witness, the witness has to testify or be subject to the court's sanction. Chumley v. State of Ga., 282 Ga. App. 117, 637 S.E.2d 828 (2006).

For what purposes sanctions are authorized.

- Ordinarily, sanctions can be applied only for failure to comply with an order of court; the only exceptions to this scheme are subsection (d) of this section, which permits an immediate sanction for complete failure to respond to a notice of deposition, interrogatories, or a request for inspection, and subsection (c), which authorizes imposition of expenses for an unjustified failure to admit. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Sanction of dismissal for failure to comply with discovery provisions requires a conscious or intentional failure to act that is in fact willful, as distinguished from an accidental or involuntary noncompliance. City of Griffin v. Jackson, 239 Ga. App. 374, 520 S.E.2d 510 (1999).

In a medical malpractice case, when a patient did not reveal to the providers being sued or to the trial court, that the patient's expert witness had withdrawn from the case, causing an unnecessary delay in the discovery process for 10 months, it was proper for the trial court to grant the providers' motion to dismiss the complaint, under O.C.G.A. § 9-11-37(b)(2), whether or not the trial court found the patient's conduct was willful because the evidence supported the trial court's ruling. Flott v. Southeast Permanente Med. Group, Inc., 274 Ga. App. 622, 617 S.E.2d 598 (2005).

In a medical malpractice case, when a patient did not reveal to the providers being sued, or to the trial court, that the patient's expert witness had withdrawn from the case, causing an unnecessary delay in the discovery process for 10 months, it was proper for the trial court to grant the providers' motion to dismiss the complaint, under O.C.G.A. § 9-11-37(b)(2), whether or not the witness had been subpoenaed for a deposition. Flott v. Southeast Permanente Med. Group, Inc., 274 Ga. App. 622, 617 S.E.2d 598 (2005).

In a medical malpractice case when the trial court dismissed a married couple's claims against two defendants because the court found that the couple abused the civil litigation process, O.C.G.A. § 9-11-37(b) did not support the trial court's action; the complaint had not been dismissed as a discovery sanction. Whitley v. Piedmont Hosp., Inc., 284 Ga. App. 649, 644 S.E.2d 514 (2007), cert. denied, 2007 Ga. LEXIS 626, 651 (Ga. 2007).

Total failure to respond to discovery results in immediate sanctions.

- Party may seek immediate sanctions without the necessity of a motion to compel when there has been a total failure to respond to discovery. Allison v. Wilson, 320 Ga. App. 629, 740 S.E.2d 355 (2013).

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).

Imposition of sanctions under subsections (b) and (d) distinguished.

- There must be an order under subsection (a) of this section before sanctions are imposed under subsection (b), while under subsection (d) the party aggrieved may move directly for the imposition of sanctions. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Motion for a specific sanction is not required before a trial judge is authorized to give that sanction. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Under paragraph (b)(2) and subsection (d) of this section, motion to apply "sanctions as provided by law" vests discretion in the trial court in which the action is pending to make such orders in regard to the failure to answer interrogatories as are just, and although it may be the better practice to request a specific sanction, it is not necessary to do so. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Requirements for subsection (d) sanctions.

- There need be no order to compel discovery as provided for in subsection (b) of O.C.G.A. § 9-11-37 as a basis to impose sanctions provided for in subsection (d) of this section. All that is required is a motion, notice, and a hearing. Cook v. Lassiter, 159 Ga. App. 24, 282 S.E.2d 680 (1981).

Although it is not necessary to issue an order compelling discovery as provided for in subsection (b) of O.C.G.A. § 9-11-37 prior to imposing the sanction of dismissal under subsection (d), a motion, notice, and hearing are required. Barrego v. OHM Remediation Servs. Corp., 245 Ga. App. 389, 537 S.E.2d 774 (2000).

Willful failure formerly prerequisite to imposition of harsh sanctions.

- Harsh sanctions of dismissal, default, or the striking of pleadings under this section prior to its amendment by Ga. L. 1972, p. 510, § 10, were applicable only upon a showing that the failure to make discovery was willful, and dismissal could not operate as an adjudication on the merits unless the court found that the failure was willful. Morton v. Retail Credit Co., 128 Ga. App. 446, 196 S.E.2d 902 (1973).

Failure to afford opportunity to be heard on sanctions motion.

- In a professional negligence action, the trial court erred in striking the affidavit of the developer's counsel filed in support of the developer's motion to vacate or set aside the order of dismissal for an alleged discovery violation, thereby refusing to afford the developer an opportunity to be heard on the merits of the sanctions motion before deciding the motion. N. Druid Dev., LLC v. Post, Buckley, Schuh & Jernigan, Inc., Ga. App. , S.E.2d (Nov. 7, 2014).

Failure to conduct hearing on motion for sanctions or make finding failure to respond was willful.

- Dismissal of the plaintiffs' negligence action with prejudice was not proper because there was no motion to compel prior to filing the motion for sanctions, there was no hearing on the motion for sanctions, and there was nothing in the record before the appellate court that demanded a finding that the plaintiffs' rescheduling of the plaintiffs' depositions and failure to respond to certain discovery was wilful. Taylor v. Marshall, 321 Ga. App. 752, 743 S.E.2d 444 (2013).

Service of motion by mail.

- Motion to impose sanction under Ga. L. 1972, p. 510, § 10 (see now O.C.G.A. § 9-11-37) may be properly served upon the defendant's attorney by mail pursuant to Ga. L. 1967, p. 226, § 4 (see now O.C.G.A. § 9-11-5(b)). Phillips v. Peachtree Hous., 138 Ga. App. 596, 226 S.E.2d 616 (1976).

Broad discretionary power is given to courts by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) to assure safeguards against oppressive and unfair questions and demands, and conversely, very broad discretion is granted in applying sanctions against disobedient parties, in order to assure compliance with the orders of the courts. Dean v. Gainesville Stone Co., 120 Ga. App. 315, 170 S.E.2d 348 (1969).

Courts are specifically granted discretion to dismiss complaints or render default judgments against disobedient parties, including parties disobeying an order to produce. Dean v. Gainesville Stone Co., 120 Ga. App. 315, 170 S.E.2d 348 (1969).

Excusability of delay for discretion of court.

- Decision whether or not there was legal excuse for delay is discretionary with the trial court. Thompson v. Baker Motor Co., 122 Ga. App. 599, 178 S.E.2d 261 (1970).

Discretion of trial court not interfered with.

- Policy of appellate courts of this state to refuse to interfere with the trial court's exercise of the court's discretion, in absence of abuse, applies to the trial judge's exercise of broad discretionary powers authorized under the discovery provisions of the Civil Practice Act (see nw O.C.G.A. Ch. 11, T. 9). Dean v. Gainesville Stone Co., 120 Ga. App. 315, 170 S.E.2d 348 (1969).

Historically, it has been the policy of the appellate courts to refuse to interfere with the exercise of a trial court's discretion except in cases of clear abuse; this policy is applicable to the exercise of the broad discretion granted a judge under the discovery provisions of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, and particularly O.C.G.A. § 9-11-37. Rucker v. Blakey, 157 Ga. App. 615, 278 S.E.2d 158 (1981).

Appellate court will not reverse a trial court's decision on discovery matters absent a clear abuse of discretion. Nixon v. Sandy Springs Fitness Ctr., Inc., 167 Ga. App. 272, 306 S.E.2d 362 (1983).

Under the discovery provisions of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, the trial judge is granted broad discretion. Historically, it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court's exercise of such discretion in the absence of abuse. Freeman v. Ripley, 177 Ga. App. 522, 339 S.E.2d 795 (1986).

Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court's decision on such matters unless there has been a clear abuse of discretion. Amaechi v. Somsino, 259 Ga. App. 346, 577 S.E.2d 48 (2003).

In a medical malpractice suit, a trial court did not abuse the court's discretion in denying the parents' O.C.G.A.9-11-37(a)(2) motion to compel a doctor to answer a deposition question regarding why the doctor no longer delivered babies because the parents' did not comply with Ga. Unif. Super. Ct. R. 6.4(B) by conferring with opposing counsel in a good faith effort to resolve the discovery dispute, and the requested information was immaterial after the trial court dismissed the underlying breach of fiduciary claim. Hooks v. Humphries, 303 Ga. App. 264, 692 S.E.2d 845 (2010).

Preliminary sanctions authorized.

- Trial court would be justified in imposing one or more of the sanctions available under O.C.G.A. § 9-11-37 prior to the imposition of the ultimate sanction of striking pleadings and entering a default judgment. Carter v. Data Gen. Corp., 162 Ga. App. 379, 291 S.E.2d 99 (1982).

Order awarding attorney fees not appealable.

- When a court order expressly provided that attorney fees were awarded for the cost of bringing a motion for sanctions, and that damages for bad faith were yet to be determined, it was not an appealable judgment within the meaning of O.C.G.A. § 5-6-34 and, absent a certificate of reviewability, the notice of appeal as to that order was premature and properly dismissed. Northen v. Mary Anne Frolick & Assocs., 235 Ga. App. 804, 510 S.E.2d 122 (1998).

Sanctions less severe than dismissal are preferred.

- As a general rule, the trial court should attempt to compel compliance with the court's orders through the imposition of lesser sanctions than dismissal. Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 353 S.E.2d 548 (1987).

Motion improper for quashing or enforcement of notice to produce.

- Motions pursuant to O.C.G.A. §§ 9-11-26,9-11-34, and9-11-37 for a protective order or sanctions are not proper vehicles for the quashing or the enforcement of a O.C.G.A. § 24-10-26 notice to produce. Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 353 S.E.2d 548 (1987).

Dismissal sanction applies to disobeyance of order to produce.

- Courts are specifically granted the discretion to dismiss complaints or to render default judgments against disobedient parties, and this applies to the disobeying of an order to produce. Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 353 S.E.2d 548 (1987); Champion Mgt. Ass'n v. McGahee, 227 Ga. App. 895, 490 S.E.2d 215 (1997), overruled in part, Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 538 S.E.2d 441 (Ga. 2000); Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 538 S.E.2d 441 (2000).

If a party does not comply with a discovery order, the trial court may impose sanctions under O.C.G.A. § 9-11-37(b)(2), including dismissal of the complaint; the trial court may impose sanctions after giving the non-complying party an opportunity to be heard and determining that the party's failure to comply with the discovery order was willful. Amaechi v. Somsino, 259 Ga. App. 346, 577 S.E.2d 48 (2003).

Corporation was improperly prevented from exercising the corporation's right to dismiss the corporation's action as the corporation did not have prior knowledge that the action would be dismissed as requested in a limited liability partnership's motion for sanctions for alleged discovery abuses when the notice of voluntary dismissal was filed. Mariner Health Care, Inc. v. PricewaterhouseCoopers, LLP, 282 Ga. App. 217, 638 S.E.2d 340 (2006), cert. denied, 2007 Ga. LEXIS 150 (Ga. 2007).

No default judgment on pleadings.

- Failure of a nonmoving party to file responsive material does not automatically entitle the moving party to judgment because there is no such thing as a default judgment on the pleadings. Cameron v. Miles, 311 Ga. App. 753, 716 S.E.2d 831 (2011).

Repetition of order unnecessary prior to imposing sanctions.

- When a court orders one party to permit discovery pursuant to O.C.G.A. § 9-11-26(c), upon that party's willful failure to comply with the court's order, the party seeking sanctions need not move the court pursuant to subsection (a) of O.C.G.A. § 9-11-37 to repeat the court's order before proceeding to move the court pursuant to subsection (b) for the imposition of sanctions. Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 353 S.E.2d 548 (1987).

Once motion for sanctions has been filed, imposition cannot be precluded by a belated response made by the opposite party. Bryant v. Nationwide Ins. Co., 183 Ga. App. 577, 359 S.E.2d 441 (1987) (dismissal of complaint not abuse of discretion); Singleton v. Eastern Carriers, Inc., 192 Ga. App. 227, 384 S.E.2d 202 (1989).

Dismissal not invoked absent request therefor.

- Sanctions which may be imposed by O.C.G.A. § 9-11-37 are to be awarded on motion, and when the complaining party does not request the sanction of dismissal, it is error for the court to invoke that sanction. Citibank N.A. v. Hill, 161 Ga. App. 186, 288 S.E.2d 258 (1982).

There is no authority for a codefendant to become the beneficiary of a dismissal under subsection (d) of O.C.G.A. § 9-11-37 merely because of a failure of the plaintiff to comply with the other co-defendant's discovery actions. Singleton v. Eastern Carriers, Inc., 192 Ga. App. 227, 384 S.E.2d 202 (1989); West v. Equifax Credit Info. Servs., Inc., 230 Ga. App. 41, 495 S.E.2d 300 (1998); Barrego v. OHM Remediation Servs. Corp., 245 Ga. App. 389, 537 S.E.2d 774 (2000).

Trial court erred in finding two guarantors in contempt and ordering the guarantors' incarceration for failing to comply with a post-judgment discovery order without affording the guarantors notice and an opportunity to be heard, in violation of the grantors' due process rights. Harrell v. Fed. Nat'l Payables, Inc., 284 Ga. App. 395, 643 S.E.2d 875 (2007).

Intentional false response in negligence action resulted in sanctions.

- In a negligence suit wherein a train patron was attacked and raped while exiting a train station, a trial court properly struck a public transportation authority's answer for the authority's intentionally false response regarding the creation and maintenance of the documents that would have reflected the security officers' activities during the relevant shifts. The evidence established that the authority intentionally destroyed the logs of the security officers then represented to the train patron and the trial court that the documents did not exist. MARTA v. Doe, 292 Ga. App. 532, 664 S.E.2d 893 (2008).

False response equivalent to failure to respond and justified sanctions.

- An intentionally false response to a document production request, particularly concerning a pivotal issue in the litigation, authorizes a trial court to impose the sanctions permitted by O.C.G.A. § 9-11-37 for a total failure to respond. MARTA v. Doe, 292 Ga. App. 532, 664 S.E.2d 893 (2008).

Ex parte communications.

- Because a patient provided an authorization form that did not in any way restrict discussions between defense counsel and the patient's former treating physicians, the trial court did not err by denying the patient's O.C.G.A. § 9-11-37 motion for sanctions based upon ex parte communications between the doctor's attorney and a cardiologist in violation of the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq. Hamilton v. Shumpert, 299 Ga. App. 137, 682 S.E.2d 159 (2009).

No error in reopening discovery as a sanction.

- Trial court did not err in reopening discovery as a sanction for a passenger's conduct pursuant to O.C.G.A. § 9-11-37 because it was well within the trial court's discretion to reopen discovery to provide the employer with an opportunity to fully explore the relevant aspects of the employer's defense; moreover, there was evidence to support the trial court's finding as to the lack of completeness and veracity in the passenger's deposition and discovery responses. Mincey v. Ga. Dep't of Cmty. Affairs, 308 Ga. App. 740, 708 S.E.2d 644 (2011).

Motion to compel arbitration properly denied.

- In a class action suit seeking to hold a lender liable for payday loans, the trial court properly ruled that the lender could not compel arbitration and denying the lender's motion to compel as moot because the trial court's earlier ruling striking the lender's arbitration defense as a discovery violation sanction was an adjudication on the merits and carried a res judicata effect. Ga. Cash Am. v. Greene, 318 Ga. App. 355, 734 S.E.2d 67 (2012).

Award of attorney fees proper when needless expenses incurred.

- In awarding attorney fees to the appellees under O.C.G.A. §§ 9-11-37 and9-15-14 after an appellant voluntarily dismissed the appellant's lawsuit, the trial court did not violate the legislative intent behind O.C.G.A. § 9-11-41(a). The appellees incurred needless expense because of the appellant's discovery violations, and the litigation was unnecessarily expanded prior to the appellant's voluntary dismissal. Hart v. Redmond Reg'l Med. Ctr., 300 Ga. App. 641, 686 S.E.2d 130 (2009).

Appeal from sanctions $10,000 or less must be by application.

- Because a judgment was an award under O.C.G.A. § 9-11-37 for $1,875 in attorney's fees as a discovery sanction, the defendant's failure to invoke the court's discretion by filing an application to appeal as required by O.C.G.A. § 5-6-35(a)(6) for judgments $10,000 or less required that the court dismiss the appeal for lack of jurisdiction. Pathfinder Payment Sols., Inc. v. Global Payments Direct, Inc., 344 Ga. App. 490, 810 S.E.2d 653 (2018).

Request for attorney fees need not be filed at time of motion for protective order.

- Appellate court erred in finding that the appellants were barred from seeking sanctions under O.C.G.A. § 9-11-37 by failing to request sanctions at the time the appellants sought and obtained a protective order under O.C.G.A. § 9-11-26, as § 9-11-37(a)(4)(A) did not require the simultaneous filing of the motion for a protective order and expenses. Workman v. RL BB ACQ I-GA CVL, LLC, 303 Ga. 693, 814 S.E.2d 696 (2018).

Cited in Hunter v. A-1 Bonding Serv., Inc., 118 Ga. App. 498, 164 S.E.2d 246 (1968); Williamson v. Lunsford, 119 Ga. App. 240, 166 S.E.2d 622 (1969); Siefferman v. Kirkpatrick, 121 Ga. App. 161, 173 S.E.2d 262 (1970); Elberton-Elbert County Hosp. Auth. v. Watson, 121 Ga. App. 550, 174 S.E.2d 470 (1970); Cochran v. Neely, 123 Ga. App. 500, 181 S.E.2d 511 (1971); Morton v. Retail Credit Co., 124 Ga. App. 728, 185 S.E.2d 777 (1971); Terminal Transp. Co. v. Burger Chef Sys., 127 Ga. App. 535, 194 S.E.2d 333 (1972); DOT v. Livaditis, 129 Ga. App. 358, 199 S.E.2d 573 (1973); DeWes Enters., Inc. v. Town & Country Carpets, Inc., 130 Ga. App. 610, 203 S.E.2d 867 (1974); Prattes v. Southeast Ceramics, Inc., 132 Ga. App. 584, 208 S.E.2d 600 (1974); Aldridge v. Mercantile Nat'l Bank, 132 Ga. App. 788, 209 S.E.2d 234 (1974); Johnson v. Martin, 132 Ga. App. 813, 209 S.E.2d 256 (1974); Thomas v. Home Credit Co., 133 Ga. App. 602, 211 S.E.2d 626 (1974); Taylor v. Stapp, 134 Ga. App. 468, 215 S.E.2d 23 (1975); Herring v. Herring, 234 Ga. 539, 216 S.E.2d 833 (1975); Marchman v. Head, 135 Ga. App. 475, 218 S.E.2d 151 (1975); Johnson v. Martin, 137 Ga. App. 312, 223 S.E.2d 465 (1976); Fraser v. Sun Valley, Inc., 137 Ga. App. 392, 224 S.E.2d 80 (1976); Kyle v. King, 138 Ga. App. 612, 226 S.E.2d 767 (1976); Shannon Co. v. Heneveld, 138 Ga. App. 756, 227 S.E.2d 412 (1976); Bell v. Fine Prods. Co., 139 Ga. App. 878, 229 S.E.2d 808 (1976); Master v. Savannah Sur. Assocs., 143 Ga. App. 109, 237 S.E.2d 599 (1977); Dyna-Comp Corp. v. Selig Enters., Inc., 143 Ga. App. 462, 238 S.E.2d 571 (1977); Buckley v. Thornwell, 143 Ga. App. 764, 240 S.E.2d 258 (1977); Savannah Sur. Assocs. v. Master, 240 Ga. 438, 241 S.E.2d 192 (1978); Dillard v. Allstate Ins. Co., 145 Ga. App. 755, 245 S.E.2d 30 (1978); Interstate Fire Ins. Co. v. Mayer, 147 Ga. App. 751, 250 S.E.2d 158 (1978); Karp v. Friedman, Alpren & Green, 148 Ga. App. 204, 250 S.E.2d 819 (1978); Bellcraft, Inc. v. Bennett, 147 Ga. App. 830, 251 S.E.2d 53 (1978); Ambassador College v. Goetzke, 244 Ga. 322, 260 S.E.2d 27 (1979); Thornton v. Burson, 151 Ga. App. 456, 260 S.E.2d 388 (1979); Wetherington v. Koepenick & Horne, Inc., 153 Ga. App. 302, 265 S.E.2d 107 (1980); Simpson v. Applegarth Supply Co., 153 Ga. App. 446, 265 S.E.2d 357 (1980); Ray v. Department of Human Resources, 155 Ga. App. 81, 270 S.E.2d 303 (1980); Copeland v. Levine, 157 Ga. App. 327, 277 S.E.2d 320 (1981); Troy v. City of Atlanta, 158 Ga. App. 496, 280 S.E.2d 892 (1981); E.H. Siler Realty & Bus. Broker, Inc. v. Sanderlin, 158 Ga. App. 796, 282 S.E.2d 381 (1981); Anton v. Garvey, 160 Ga. App. 157, 286 S.E.2d 493 (1981); Bouldin v. Aragona-Garcia Enters., Inc., 161 Ga. App. 396, 288 S.E.2d 673 (1982); Fagala v. Morrison, 161 Ga. App. 655, 289 S.E.2d 528 (1982); Cameron v. Cox, 162 Ga. App. 268, 291 S.E.2d 115 (1982); Brewer v. Brewer, 249 Ga. 517, 291 S.E.2d 696 (1982); Keese v. Brown, 250 Ga. 383, 297 S.E.2d 487 (1982); Porter v. Eastern Air Lines, 165 Ga. App. 152, 300 S.E.2d 525 (1983); Browning v. Powell, 165 Ga. App. 315, 301 S.E.2d 52 (1983); Morrison v. DOT, 166 Ga. App. 144, 303 S.E.2d 501 (1983); Freeman v. Allstate Bus. Sys., 166 Ga. App. 249, 304 S.E.2d 97 (1983); Georgia Power Co. v. Brown, 169 Ga. App. 45, 311 S.E.2d 236 (1983); Mathis v. Hegwood, 169 Ga. App. 547, 314 S.E.2d 122 (1984); Polston v. Levine, 171 Ga. App. 893, 321 S.E.2d 350 (1984); Porter v. Allstate Ins. Co., 172 Ga. App. 657, 324 S.E.2d 515 (1984); Bergen v. Cardiopul Medical, Inc., 175 Ga. App. 700, 334 S.E.2d 28 (1985); Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985); Georgia Communications Corp. v. Horne, 174 Ga. App. 69, 329 S.E.2d 192 (1985); Albers v. Brown, 177 Ga. App. 620, 340 S.E.2d 260 (1986); Gilbert v. E & W Constr. Co., 181 Ga. App. 281, 351 S.E.2d 523 (1986); Freeman v. Nodvin, 181 Ga. App. 663, 353 S.E.2d 546 (1987); Holbrook Contracting, Inc. v. Tyner, 181 Ga. App. 838, 354 S.E.2d 22 (1987); Guillebeau v. Jenkins, 182 Ga. App. 225, 355 S.E.2d 453 (1987); Cowley v. First Fed. Sav. & Loan Ass'n, 187 Ga. App. 278, 370 S.E.2d 36 (1988); Home Owners Warranty Corp. v. Pinewood Bldrs., Inc., 188 Ga. App. 324, 373 S.E.2d 34 (1988); Lightwerk Studios, Inc. v. Door Units of Ga., Inc., 191 Ga. App. 756, 382 S.E.2d 699 (1989); American Express Co. v. Baker, 192 Ga. App. 21, 383 S.E.2d 576 (1989); Jarallah v. Pickett Suite Hotel, 193 Ga. App. 325, 388 S.E.2d 333 (1989); McDonald v. Winn, 194 Ga. App. 459, 390 S.E.2d 890 (1990); Eason v. Bowie, 196 Ga. App. 199, 395 S.E.2d 600 (1990); Schrembs v. Atlanta Classic Cars, Inc., 197 Ga. App. 450, 398 S.E.2d 712 (1990); Green v. Snellings, 260 Ga. 751, 400 S.E.2d 2 (1991); In re Geraghty, 261 Ga. 260, 403 S.E.2d 788 (1991); Hendricks v. Emerson, 199 Ga. App. 208, 404 S.E.2d 279 (1991); C & S Indus. Supply Co. v. Proctor & Gamble Paper Prods. Co., 199 Ga. App. 197, 404 S.E.2d 346 (1991); Revels v. Wimberly, 223 Ga. App. 407, 477 S.E.2d 672 (1996); Roberts v. Forte Hotels, Inc., 227 Ga. App. 471, 489 S.E.2d 540 (1997); Snellings v. Sheppard, 229 Ga. App. 753, 494 S.E.2d 583 (1998); Great W. Bank v. Southeastern Bank, 234 Ga. App. 420, 507 S.E.2d 191 (1998); Gibbs v. Abiose, 235 Ga. App. 214, 508 S.E.2d 690 (1998); Sheppard v. Johnson, 255 Ga. App. 165, 564 S.E.2d 729 (2002); Cotting v. Cotting, 261 Ga. App. 370, 582 S.E.2d 527 (2003); In the Interest of B.H., 295 Ga. App. 297, 671 S.E.2d 303 (2008); Gibson Law Firm, LLC v. Miller Built Homes, Inc., 327 Ga. App. 688, 761 S.E.2d 95 (2014); 915 Indian Trail, LLC v. State Bank & Trust Co., 328 Ga. App. 524, 759 S.E.2d 654 (2014).

Motion to compel not required for sanctions.

- Because the filing of a motion to compel is not a condition precedent for seeking sanctions under O.C.G.A. § 9-11-37(d)(1), the court did not abuse the court's discretion when the court granted the defendant's motion to dismiss based on the plaintiff's failure to produce the requested documents. Deep South Constr., Inc. v. Slack, 248 Ga. App. 183, 546 S.E.2d 302 (2001).

Factors in determining whether to enter order of production.

- While admissibility is a matter to be determined when records, documents, etc., are tendered in evidence, and is not a test for determining whether an order requiring production should be entered, pertinence or relevance is. Horton v. Huiet, 113 Ga. App. 166, 147 S.E.2d 669 (1966) (decided under former Code 1933, § 38-2109).

Refusal to order production of irrelevant material proper.

- When it appears from an inspection of the notice to produce that the records and documents sought are not relevant to the issues before the court, it is not error to refuse an order for their production. Horton v. Huiet, 113 Ga. App. 166, 147 S.E.2d 669 (1966) (decided under former Code 1933, § 38-2109).

Applicability of paragraph (a)(3) of this section is confusing, and renders the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) inconsistent with the federal rules. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

As to interpretation of Federal Rule 37(a)(3) to mean that trial court may order a complete answer if an evasive answer is given, just as if no answer were given, but not to authorize the entry of a penalty under Federal Rule 37(d) for an evasive answer, see Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

An inadequate response to an order to compel answers to interrogatories is not to be treated under O.C.G.A. § 9-11-37 as a total failure to respond under subsection (d) so as to authorize a dismissal of the complaint under subsection (d). Rivers v. Goodson, 184 Ga. App. 70, 360 S.E.2d 740 (1987).

Treatment of partial or evasive answers.

- Answering partially or giving evasive answers evidences a dispute between the parties, which is brought before the trial court by a motion under subsection (a) of this section to compel discovery, and is resolved through an order to compel answers or a protective order. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

When party answering interrogatories for corporation was not qualified to speak as its agent, the court could have issued an order under subsection (a) of this section, and it was error to strike the defendant's response and enter a default judgment, treating the defendant's inadequate answer as a total failure to make an initial response under subsection (d). Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

To prevent either party from frivolously propounding questions or giving evasive answers, the trial court must require the losing party to pay the expenses involved in obtaining the order, including attorney fees, unless the court feels that opposition to the motion was substantially justified or otherwise excused. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Expenses of motion.

- Trial court had the power under subparagraph (a)(4)(A) of O.C.G.A. § 9-11-37 to award the attorney fees incurred by the plaintiffs as a result of the defendant's erroneous denial of the existence of relevant documents as though awarding attorney fees in connection with a successful motion to compel. Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 452 S.E.2d 159 (1994), overruled on other grounds by Chrysler Group LLC v. Walden, 2018 Ga. LEXIS 154 (Ga. 2018).

Award of expenses must have been made pursuant to paragraph (a)(4) of O.C.G.A. § 9-11-37 as "the reasonable expenses incurred in obtaining the order." Department of Transp. v. Hardaway Co., 216 Ga. App. 262, 454 S.E.2d 167 (1995).

O.C.G.A. § 9-11-37 requires the court to give a party an opportunity to be heard before costs are imposed on a motion to compel. Gomez v. Peters, 221 Ga. App. 57, 470 S.E.2d 692 (1996).

Because the defendant claimed to not have items sought in a request for production, and then claimed to have the items and would produce the items, but then could not find the items, it was reasonable for the trial court to allow discovery to ascertain the fate of the items and to cast the costs on the defendant. City of Griffin v. Jackson, 239 Ga. App. 374, 520 S.E.2d 510 (1999).

Superior court did not err in failing to consider a wife's request for attorney fees and to award fees to the wife on the ground that the husband refused to comply with the discovery and/or there was a substantial disparity in the parties' financial circumstances because the wife did not pursue her motion to compel discovery but instead opted to obtain sought documents from third parties; therefore, an award of expenses for bringing the motion under O.C.G.A. § 9-11-37(a)(4) was not warranted. Jones-Shaw v. Shaw, 291 Ga. 252, 728 S.E.2d 646 (2012).

Trial court did not abuse the court's discretion by denying the plaintiff's motion for attorney fees, pursuant to O.C.G.A. § 9-11-37, because although the trial court denied the defendant's motion to compel, the parties entered into a consent order resolving their discovery disputes, and the trial court specifically found that the making of the defendant's motion to compel discovery was substantially justified and an award of expenses would be unjust. Artson, LLC v. Hudson, 322 Ga. App. 859, 747 S.E.2d 68 (2013).

Court did not abuse discretion in charging answering party $100.00 in attorney's fees when the answering party returned interrogatories with some evasive and incomplete responses, notwithstanding the fact that the answering party was acting pro se and the defective answers were not purposeful, but were due to ineptness and ignorance of the law. Stephens v. Howle, 132 Ga. App. 92, 207 S.E.2d 632 (1974).

Post-judgment interrogatories.

- Direct appeal of an order to respond to post-judgment interrogatories is improper since such an order is not final. It is appealable only by compliance with subsection (b) of O.C.G.A. § 5-6-34. Cornelius v. Finley, 204 Ga. App. 299, 418 S.E.2d 815 (1992).

Orders denying or requiring answers to interrogatories are reviewable on appeal after final judgment if the orders have affected the final judgment and are not moot. Benefield v. Malone, 110 Ga. App. 607, 139 S.E.2d 500 (1964), later appeal, 112 Ga. App. 408, 145 S.E.2d 732 (1965) (decided under former Code 1933, § 38-2111).

Order as final adjudication subject to review.

- When the plaintiff contends that it is impossible for the plaintiff to comply with an order which stays the proceeding until the plaintiff appears in order to depose, such an order effectively terminates the plaintiff's right to trial and is a final adjudication subject to review. Millholland v. Oglesby, 223 Ga. 230, 154 S.E.2d 194 (1967) (decided under former Code 1933, § 38-2111). For comment, see 4 Ga. St. B.J. 392 (1968).

Order compelling discovery not condition precedent to sanctions.

- When a defendant wilfully, knowingly, falsely, consistently, and unequivocally denies the existence of requested discoverable documents, the plaintiff is not required to obtain an order compelling discovery before seeking sanctions under O.C.G.A. § 9-11-37(d)(1). Howard v. Alegria, 321 Ga. App. 178, 739 S.E.2d 95 (2013).

Discretion of court.

- By subparagraph (b)(2)(C) of O.C.G.A. § 9-11-37, the courts are specifically granted the discretion to dismiss complaints or to render default judgments against disobedient parties, including those disobeying an order to produce. Sellers v. Nodvin, 207 Ga. App. 742, 429 S.E.2d 138 (1993).

Imposition of lesser sanctions than dismissal and default was not an abuse of discretion since there was no evidence that the defendant's failure to comply with the court's earlier orders compelling the defendant's complete response to the plaintiff's discovery requests was the result of intent or ill will. Yarbrough v. Kirkland, 249 Ga. App. 523, 548 S.E.2d 670 (2001).

In a negligence suit involving the death of an individual in an automobile collision, a trial court did not abuse the court's discretion by precluding an auto manufacturer from contesting certain issues at trial based on the auto manufacturer's failure to follow the trial court's order to produce crash tests results documentation from prior litigation as the trial court held a hearing in which the auto manufacturer had the opportunity to explain the continued refusal to produce the documents and, instead of imposing the ultimate sanction of dismissal or default judgment for failure to comply with discovery, the trial court instead concluded that the willful disobedience was subject to the lesser sanction of issue preclusion. Ford Motor Co. v. Gibson, 283 Ga. 398, 659 S.E.2d 346 (2008).

Court may impose sanctions for failure to comply with post-judgment discovery orders, including contempt for not appearing at a deposition, notwithstanding the fact that the person to be deposed is a nonresident, although there is apparently no provision for the aggrieved party to move for a dismissal of an appeal. Ostroff v. Coyner, 187 Ga. App. 109, 369 S.E.2d 298 (1988).

Discovery sanction not directly appealable.

- In a civil suit, an appellate court properly dismissed an appeal of an order finding the appellants in contempt for violating a discovery order and that dismissed the answer and entered a default judgment as to liability as the order was not directly appealable as a contempt judgment under O.C.G.A. § 5-6-34(a)(2) since the order did not impose a civil or criminal contempt sanction but rather imposed a discovery sanction under O.C.G.A. § 9-11-37(b)(2)(C). Am. Med. Sec. Group, Inc. v. Parker, 284 Ga. 102, 663 S.E.2d 697 (2008).

Attorney fees imposed.

- Trial court did not err in ordering the non party object of post-judgment discovery to pay reasonable attorney fees as a sanction for the need to bring a motion to compel that post-judgment discovery after a paper hearing on the plaintiff's motion. Esasky v. Forrest, 231 Ga. App. 488, 499 S.E.2d 413 (1998).

Trial court did not abuse the court's discretion in awarding an assistant professor attorney fees as prayed for in the professor's motion for a protective order because an award of fees was authorized by O.C.G.A. § 9-11-37(a)(4)(A). 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).

Award of sanctions in the form of attorney fees against a heating system installer that failed to produce an officer for deposition, despite a court order, was proper under O.C.G.A. § 9-11-37(b)(2), as the sanctions were proper despite the fact that there was no order under O.C.G.A. § 9-11-37(a) or O.C.G.A. § 9-11-26(c), the failure to appear was not substantially justified, and the amount awarded was not excessive. Carrier Corp. v. Rollins, Inc., 316 Ga. App. 630, 730 S.E.2d 103 (2012).

Court retained jurisdiction after remand.

- Before an appellate court reversed the trial court's denial of summary judgment to the defendant, the trial court had found that the defendant had abused the discovery process; as the trial court had expressly reserved the issue of sanctions for later determination, the court had jurisdiction, after remand, to award the plaintiff's attorney's fees under O.C.G.A. § 9-11-37(d). CSX Transp., Inc. v. Deen, 278 Ga. App. 845, 630 S.E.2d 119 (2006).

Party "refuses to obey" an order simply by failing to comply therewith. 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, § 38-2111).

Court has discretion as to consequences to be imposed for failure to comply with discovery provisions. Wilson v. Barrow, 107 Ga. App. 555, 130 S.E.2d 812 (1963) (decided under former Code 1933, § 38-2111).

Subsection (b)(2) contains two standards

- one general and one specific - that limit a trial court's discretion: first, any sanction must be "just"; second, the sanction must be specifically related to the particular "claim" which was at issue in the order to provide discovery. Carey Can., Inc. v. Hinely, 181 Ga. App. 364, 352 S.E.2d 398, rev'd on other grounds, 257 Ga. 150, 356 S.E.2d 202, cert. denied, 484 U.S. 898, 108 S. Ct. 233, 98 L. Ed. 2d 192 (1987).

Issuance of order compelling an answer is prerequisite to use of sanctions. Corbin v. Pilgrim Realty Co., 151 Ga. App. 102, 258 S.E.2d 758 (1979), overruled on other grounds, Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730, 279 S.E.2d 442 (1981).

Before sanctions may be imposed under subsection (b) of O.C.G.A. § 9-11-37, the party seeking discovery must first obtain an order under subsection (a) of that section requiring the recalcitrant party to make discovery. Wills v. McAuley, 166 Ga. App. 4, 303 S.E.2d 26, cert. denied, 251 Ga. 41, 305 S.E.2d 120 (1983).

Time for compliance with order.

- Absent a definite time for compliance, the 30-day period contemplated by Ga. L. 1972, p. 510, § 6 (see now O.C.G.A. § 9-11-33) should be the applicable time within which to comply with an order to respond to interrogatories. Massengale v. Georgia Power Co., 153 Ga. App. 476, 265 S.E.2d 830 (1980).

When the trial court ordered the defendant to pay the plaintiffs' attorney fees, necessitated by the defendant's failure to comply with discovery and causing a mistrial, the defendant could not wait until final judgment in the action to pay the fees and was properly held in contempt for failure to obey the court's order. Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 452 S.E.2d 159 (1994), overruled on other grounds by Chrysler Group LLC v. Walden, 2018 Ga. LEXIS 154 (Ga. 2018).

When a motion for sanctions is brought for a party's failure to comply with an order compelling answers to interrogatories, the existence or nonexistence of wilfulness should be considered not only in the context of the time period prescribed in the order compelling answers, but in the context of the entire period beginning with service of interrogatories and ending with service of answers. Didio v. Chess, 218 Ga. App. 550, 462 S.E.2d 450 (1995).

Two-step remedial procedure.

- Remedy available to a party whose discovery efforts are frustrated by an opponent's refusal to submit to discovery is contained in the two-step procedure of this section: first, a motion for an order compelling discovery must be made, heard, and granted, affording the obstinate party another opportunity to provide discovery, and if the obstinate fails to do so, the second step is for the court to enter such order as is just, including the imposition of one or more of the sanctions set forth in paragraph (b)(2) of this section. Corbin v. Pilgrim Realty Co., 151 Ga. App. 102, 258 S.E.2d 758 (1979), overruled on other grounds, Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730, 279 S.E.2d 442 (1981); Thornton v. Burson, 151 Ga. App. 456, 260 S.E.2d 388 (1979).

Subsection (b) of this section gives the trial court a range of sanctions to be imposed when an order under subsection (a) is violated. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Paragraph (b)(2) of O.C.G.A. § 9-11-37 is designed to punish a willful failure or conscious disregard of an order. Brunswick Mfg. Co. v. Sizemore, 176 Ga. App. 838, 338 S.E.2d 288 (1985).

Mere technical failure to comply with an order will not justify extreme sanctions such as dismissal and default. Thornton v. Burson, 151 Ga. App. 456, 260 S.E.2d 388 (1979).

Hearing required for determination of failure to comply with order.

- When the court enters an order that a party comply with discovery, that order cannot be self-executing, i.e., it cannot provide for the automatic imposition of the ultimate sanction of dismissal or default judgment upon the party's failure to file the responses. Rather, the court must first make a determination, following notice of an opportunity for a hearing, that the failure to comply with the order was willful. Hernandez v. State, 200 Ga. App. 368, 408 S.E.2d 160 (1991).

Trial court committed harmful error by denying a party's request to "make an offer of proof" at the hearing on a motion for sanctions. Loftin v. Gulf Contracting Co., 224 Ga. App. 210, 480 S.E.2d 604 (1997).

In a personal injury action, although the trial court stated in the court's dismissal order that an injured party's noncompliance with a court-ordered sanction was willful, because the appeals court could not make that determination from the record, and the injured party was not afforded a hearing prior to the imposition of attorney fees and dismissal, the order was reversed; however, the fact that the court-ordered sanction was erroneous did not excuse the injured party's failure to comply with it. Cole v. Hill, 286 Ga. App. 535, 649 S.E.2d 633 (2007).

Hearing not required.

- In an action to recover unpaid legal fees, a law firm was not entitled to a hearing on a motion for discovery sanctions under O.C.G.A. § 9-11-37(d) against former clients because the trial court was not contemplating the ultimate sanction of dismissal or a default judgment and the clients did not willfully fail to comply as the clients did not receive the post-judgment interrogatories. McFarland & McFarland, P.C. v. Holtzclaw, 293 Ga. App. 663, 667 S.E.2d 874 (2008).

Inadequate response due to counsel's error.

- Paragraph (b)(2) of O.C.G.A. § 9-11-37 is not designed to punish parties when their otherwise timely but partially inadequate response to discovery orders is the result of their counsel's erroneous misunderstanding of the full mandate thereof. Brunswick Mfg. Co. v. Sizemore, 176 Ga. App. 838, 338 S.E.2d 288 (1985).

Notice of hearing.

- After the plaintiff claimed that the trial court erred in not holding an evidentiary hearing on the motion to dismiss for failure to comply with discovery, contending that, because the hearing was noticed by a "rule nisi" order, it could not be the mandated evidentiary hearing, it was held that while it is true that a rule nisi is generally used to notify parties of and compel the parties to appear at hearings for a determination of temporary or other interlocutory matters, it may also be used to notify a final hearing. Smith v. National Bank, 182 Ga. App. 55, 354 S.E.2d 678 (1987).

Willfulness required for harsh sanctions.

- If failure is not willful, harsh sanctions of dismissal, default, or the striking of pleadings have no application. Leonard Bros. Trucking Co. v. Crymes Transps., Inc., 124 Ga. App. 341, 183 S.E.2d 773 (1971), overruled on other grounds, Turner v. Harper, 233 Ga. 483, 211 S.E.2d 742 (1975).

Replacement of the word "refusal" with the word "failure" in paragraph (b)(2) of this section by Ga. L. 1972, p. 510, § 10, was not intended to change the construction of the rule relating to a showing of willfulness prior to imposition of the harsher sanctions of subparagraph (b)(2)(C). Swindell v. Swindell, 233 Ga. 854, 213 S.E.2d 697 (1975).

Showing of willfulness is required in order to impose the sanction of default judgment upon a party. McCane v. Cappett Corp., 151 Ga. App. 423, 260 S.E.2d 379 (1979).

Showing of willfulness is a predicate to imposition of the harsher sanctions. Thornton v. Burson, 151 Ga. App. 456, 260 S.E.2d 388 (1979).

Under subparagraph (b)(2)(C) or subsection (d) of O.C.G.A. § 9-11-37, a finding of willfulness is a prerequisite to dismissal. Smith v. National Bank, 182 Ga. App. 55, 354 S.E.2d 678 (1987).

Because the trial court failed to make an explicit finding of wilfulness in the court's order dismissing the plaintiff's case for failure to comply with an order compelling discovery, the dismissal was reversed, and the case was remanded for a hearing on the issue. Rouse v. Arrington, 283 Ga. App. 204, 641 S.E.2d 214 (2007).

Question of willfulness only relevant in selection of sanctions.

- Failure to comply is the only requisite for finding of a violation, and "willfulness" is relevant only when selecting sanctions. Sta-Power Indus., Inc. v. Avant, 134 Ga. App. 952, 216 S.E.2d 897 (1975).

Showing of willfulness is a predicate to imposition of the harsher sanctions.

- Trial court did not err in striking a party's pleadings and entering default judgment against the party since the party's conduct showed a willful failure to comply with the court's order. Butler v. Biven Software, Inc., 238 Ga. App. 525, 522 S.E.2d 1 (1999).

Time period for which willfulness to be considered.

- When a motion for sanctions is brought under paragraph (b)(2) of this section for a party's failure to comply with an order compelling answers, the existence or nonexistence of willfulness should be considered not only in the context of the time period prescribed in the order compelling answers, but in the context of the entire period beginning with service of interrogatories and ending with service of answers; events transpiring during this entire time period are probative of whether a party acted with conscious indifference to the consequences of failure to comply with the order compelling answers. Lee v. Morrison, 138 Ga. App. 332, 226 S.E.2d 124 (1976); Thurman v. Unicure, Inc., 151 Ga. App. 880, 261 S.E.2d 785 (1979); City of Griffin v. Jackson, 239 Ga. App. 374, 520 S.E.2d 510 (1999).

Relevant time frame for considering issue of willfulness.

- In considering the issue of willfulness, the entire period beginning with service of the interrogatories and ending with the service of the answers must be considered, not just the period mandated by the order requiring answers. Smith v. National Bank, 182 Ga. App. 55, 354 S.E.2d 678 (1987).

Failure to cooperate with counsel as willful misconduct.

- Failure to maintain contact and cooperate with counsel about pending litigation so that discovery can be made is willful misconduct; however, a party may claim that it was counsel who failed to communicate with the party. Thurman v. Unicure, Inc., 151 Ga. App. 880, 261 S.E.2d 785 (1979).

Hearing on willfulness not always required.

- Trial court need not conduct a hearing on the issue of willfulness in every case. Such a requirement serves no purpose when the court can otherwise determine willfulness on the part of the party against whom the sanctions are sought. Schrembs v. Atlanta Classic Cars, Inc., 261 Ga. 182, 402 S.E.2d 723 (1991).

Since the trial court was authorized to find that a party intentionally and wilfully failed to comply with a court order compelling discovery, such finding could be made from the record, without the necessity of conducting a separate hearing. Johnson v. Lomas Mtg. USA, Inc., 201 Ga. App. 562, 411 S.E.2d 731, cert. denied, 201 Ga. App. 904, 411 S.E.2d 731 (1991).

Under subparagraph (b)(2)(D) of O.C.G.A. § 9-11-37, a hearing is not required before contempt may be found for the willful violation of an order compelling discovery. Ryland Group, Inc. v. Daley, 245 Ga. App. 496, 537 S.E.2d 732 (2000), overruled on other grounds, John Thurmond & Assocs. v. Kennedy, 284 Ga. 469, 668 S.E.2d 666 (2008).

Trial court properly dismissed an injured party's complaint as a sanction for violating a discovery order because the injured party failed to appear at a hearing on a driver's motion for a sanction of dismissal, despite being advised of the hearing several times; the injured party did not explain why the two-month delay in complying with the discovery order was excusable, but stated that the injured party's counsel had a "head cold virus" for three months; further, the trial court was not required to hold a hearing on the issue of willfulness. Russaw v. Burden, 272 Ga. App. 632, 612 S.E.2d 913 (2005).

Hearing on willfulness not required.

- Trial court did not err in entering a default judgment against sellers pursuant to O.C.G.A. § 9-11-37(b)(2) without conducting a hearing on willfulness because the sellers did not file answers to a broker's request for interrogatories and production of documents within the time period prescribed by O.C.G.A. §§ 9-11-33(a)(2) and9-11-34(b)(2), and the sellers only filed a response to the request after the trial court's grant of the broker's initial motion to compel and for sanctions. Cochran v. Kennelly, 306 Ga. App. 838, 703 S.E.2d 411 (2010).

Dismissal without hearing on willfulness improper.

- When a couple failed to attend their depositions, it was error to dismiss their personal injury case under O.C.G.A. § 9-11-37 without holding a hearing on the issue of willfulness; no motion to compel had been filed against the couple, no hearing of any type had been held previously, and the record would support a finding that the couple, who said later that they believed the depositions would be rescheduled because they were still in the process of obtaining counsel, had acted negligently, not willfully. McConnell v. Wright, 281 Ga. 868, 644 S.E.2d 111 (2007).

Remand for willfulness issue when trial court failed to make explicit willfulness finding.

- Because the trial court failed to explicitly make a finding of willfulness in the court's order dismissing the plaintiff's damages complaint for failure to comply with an order to compel, directing the plaintiff to fully and completely respond to the defendant's interrogatories and requests for production, and in any event, the court could not say that such a determination could be made from the record, the matter was remanded directing the trial court to conduct a hearing on the issue of willfulness. Rouse v. Arrington, 283 Ga. App. 204, 641 S.E.2d 214 (2007).

Finding of willfulness authorized.

- When there is no evidence that a party was unaware of the trial court's order requiring the party to attend a deposition, nor any evidence to indicate that the party made a good faith effort to comply with the order of the trial court, the court was authorized to find that the party's failure to attend the deposition was willful. McCane v. Cappett Corp., 151 Ga. App. 423, 260 S.E.2d 379 (1979).

At least six instances of noncompliance demonstrated that the defendant not only intentionally refused to respond to discovery but also consciously disregarded a court discovery order. Resource Network Int'l , Inc. v. Ritz-Carlton Hotel Co., 232 Ga. App. 242, 501 S.E.2d 573 (1998).

Trial court did not abuse the court's discretion in dismissing a complaint with prejudice after the plaintiff failed to comply with the trial court's order compelling discovery even after being advised of possible dismissal for failure to comply; the trial court found the plaintiff's testimony not credible and that the plaintiff willfully failed to comply with the order compelling the discovery. Amaechi v. Somsino, 259 Ga. App. 346, 577 S.E.2d 48 (2003).

Trial court did not err in imposing discovery sanctions against a credit life insurer in a class action involving 900,000 policies because the insurer failed to provide the requested information on the insurer's policy-holders for over six years after the insurer was ordered to do so, and the information was available to the insurer. Res. Life Ins. Co. v. Buckner, 304 Ga. App. 719, 698 S.E.2d 19 (2010).

Trial court did not abuse the court's discretion by granting the defendant's motion for sanctions and dismissing the complaint with prejudice because the plaintiff provided no explanation to the trial court for the plaintiff's failure even to begin work on collecting the documents at issue before the August 5 deadline; accordingly, the trial court did not abuse the court"s discretion when the court concluded that the plaintiff's failure to comply with the court's order of July 22 was wilful and in total disregard of that order. RLBB Acquisition, LLC v. Baer, 329 Ga. App. 483, 765 S.E.2d 662 (2014).

Recitation of willful misconduct in default order not necessary.

- Court order imposing an authorized sanction of default judgment is not fatally defective if it does not contain a recitation of willful misconduct, when there is an adequate showing of failure to comply with a court order which equates to willful misconduct. Sta-Power Indus., Inc. v. Avant, 134 Ga. App. 952, 216 S.E.2d 897 (1975).

Paragraph (b)(2) of this section does not require a specific finding of willfulness in the court order, but only a showing of willfulness in the record on the transcript. Sta-Power Indus., Inc. v. Avant, 134 Ga. App. 952, 216 S.E.2d 897 (1975).

Condition precedent to dismissal.

- Statute does not authorize the court to apply the sanction of dismissal of a pleading after purported answers to interrogatories have been served and filed unless the condition precedent has been fulfilled which requires the propounder to file a motion to compel answers and the order to compel has been disobeyed. Bratten Apparel, Inc. v. Lyons Textile Mill, Inc., 129 Ga. App. 384, 199 S.E.2d 632 (1973).

Dismissal authorized for conscious or intentional failure to act.

- Under subparagraph (b)(2)(C) of this section, a trial court may in the court's discretion dismiss an action as a sanction for the plaintiff's failure to comply with an order to provide discovery when the court finds a conscious or intentional failure to act as distinguished from an accidental or involuntary noncompliance. Turner v. Gray, 150 Ga. App. 714, 258 S.E.2d 905 (1979).

Trial court did not abuse the court's discretion in striking the appellants' answers and counterclaims, and in entering a default judgment against the appellants, as a sanction order was imposed against the appellants due to discovery misconduct, but the appellants refused to pay the sanction despite the fact that the appellants had sufficient funds to do so, and instead, the appellants continued to argue the propriety of the prior order compelling the appellants' appearance at a deposition and the payment of attorney fees; the appellants' failure to comply was deemed willful. Mateen v. Dicus, 275 Ga. App. 742, 621 S.E.2d 487 (2005), rev'd on other grounds, 281 Ga. 455, 637 S.E.2d 377 (2006); vacated in part, 286 Ga. App. 760, 650 S.E.2d 272 (2007).

Dismissal of complaint proper.

- When there was nothing in the record to excuse the plaintiff's failure to serve answers as required by law, or to show that the plaintiff, through counsel, sought by authorized action to obtain a delay or extension of time in which to serve answers, the action of the trial judge in sustaining a motion to dismiss and dismissing the complaint was proper. Morton v. Retail Credit Co., 124 Ga. App. 728, 185 S.E.2d 777 (1971).

There was no abuse of discretion in the trial court's granting the motion to dismiss predicated on the continued failure of the plaintiff to respond with documentation as to the plaintiff's medical treatment and expenses. Lewis v. Evans, 212 Ga. App. 49, 441 S.E.2d 425 (1994).

Because, at the time the trial court dismissed the plaintiff's complaint, the plaintiff's supplemental responses to the defendant's discovery request were still inadequate and evasive, and because of the fact-intensive nature of the claims, dismissal of the complaint was not an abuse of discretion. Potter v. American Medcare Corp., 225 Ga. App. 343, 484 S.E.2d 43 (1997).

Court did not abuse the court's discretion in dismissing the case when the plaintiff twice failed to attend the plaintiff's scheduled deposition. Smith v. Adamson, 226 Ga. App. 698, 487 S.E.2d 386 (1997).

Because an individual failed to attend depositions for which the individual was noticed, even after being ordered to do so by the trial court, and the individual did not respond to a motion for sanctions, the trial court's dismissal of the individual's complaint pursuant to O.C.G.A. § 9-11-37(b)(2) was not a clear abuse of discretion. Woods v. Gatch, 272 Ga. App. 642, 613 S.E.2d 187 (2005).

Trial court properly dismissed the plaintiffs' pro se complaint pursuant to O.C.G.A. § 9-11-37(d) on grounds that the plaintiffs wilfully failed to appear for the plaintiffs' depositions as the court's failure to rule on the plaintiffs' pending motions, including motions to compel, a motion for a more complete response, and a motion for protective order, did not excuse the plaintiffs' attendance; moreover, the grounds plaintiffs asserted in the plaintiffs' motion for protective order provided no basis for the trial court to order that the plaintiffs were not obligated to attend the depositions. Rice v. Cannon, 283 Ga. App. 438, 641 S.E.2d 562 (2007).

Trial court's dismissal of a suit brought by certain homeowners against an insurer for the homeowners' refusal to comply with various discovery orders of the trial court was upheld on appeal since by sworn affidavit, counsel for the insurer averred and sufficiently established that the homeowners never appeared for depositions; no hearing was required under O.C.G.A. § 9-11-37 for the trial court to determine the willfulness of the homeowners' noncompliance since the record established that hearings were held on the insurer's motions for sanctions. Nanan v. State Farm Ins. Co., 286 Ga. App. 539, 650 S.E.2d 283 (2007), cert. denied, 555 U.S. 995, 129 S. Ct. 496, 172 L. Ed. 2d 358 (2008).

Trial court properly dismissed the plaintiffs' complaint for failing to comply with a discovery order. Plaintiffs' counsel repeatedly misrepresented that counsel would provide discovery about an expert witness and counsel's failure to do so resulted in more than one extension of the discovery period and also more than one continuance of the trial. Freeman v. Foss, 298 Ga. App. 498, 680 S.E.2d 557 (2009).

Striking of pleadings or entry of default for refusal to answer.

- On refusal of a party to make answer after being directed to do so by the court, the court may strike the pleadings or render a judgment by default against the disobedient party. Hatcher v. Scarboro, 113 Ga. App. 103, 147 S.E.2d 361 (1966) (decided under former Code 1933, § 38-2111).

In an attorney disciplinary proceeding, the special master was authorized to strike the attorney's answer for the attorney's failure to produce documents. In re Washington, 270 Ga. 60, 504 S.E.2d 704 (1998).

Dismissal of answer improper.

- When, in response to a court order, the defendant filed answers to all but seven of the interrogatories served on the defendant, it was improper for the court, on the same day and with no additional notice, to enter an order striking and dismissing the defendant's answer. Delta Equities, Inc. v. Berry, 127 Ga. App. 590, 194 S.E.2d 284 (1972).

Dismissal of complaint improper.

- Because damages were presumed to flow from an alleged tortious act, a party alleging the commission of a tort was not required to provide the court with a detailed statement of damages. Thus, the trial court erred in dismissing the case for that party's failure to comply with such an order. Wilson v. Home Depot USA, Inc., 288 Ga. App. 582, 654 S.E.2d 408 (2007), cert. denied, 2008 Ga. LEXIS 403 (Ga. 2008).

It was an abuse of discretion to dismiss a dog breeder's breach of contract suit under O.C.G.A. § 9-11-37 against a dog's co-owner due to the breeder's failure to comply with a court order to produce contracts with the breeder's other customers from over seven years earlier. There was no proof that such contracts existed, and even if the contracts did, the contracts' relevance to the lawsuit was questionable. Anderson v. Silver, 300 Ga. App. 1, 684 S.E.2d 73 (2009), cert. denied, No. S10C0134, 2010 Ga. LEXIS 214 (Ga. 2010).

Trial court erred in dismissing a client's claim against a surveying firm with prejudice under O.C.G.A. § 9-11-37(d) based on the client's failure to respond to discovery without first issuing an order compelling the client to comply with the discovery requests and without scheduling a hearing on the sanctions motion. N. Druid Dev., LLC v. Post, Buckley, Schuh & Jernigan, Inc., 330 Ga. App. 432, 767 S.E.2d 29 (2014).

Default judgment improper.

- In a product liability action, grant of a default judgment as to liability against the defendant was too severe a sanction for noncompliance with a discovery order because the defendant was entitled to a hearing on the motion for sanctions; there was no finding of willfulness, or bad faith, or a conscious indifference to the consequences of failure to comply and the evidence of what had transpired in the discovery process did not support the sanction. GMC v. Conkle, 226 Ga. App. 34, 486 S.E.2d 180 (1997).

Dismissal based on willful failure as adjudication on the merits.

- Order of dismissal based on a finding of willful failure to comply with an order of the court can rightly have the effect of an adjudication on the merits; however, a dismissal which does not involve any finding of willfulness, but which is merely an automatic action following a certain lapse of time, falls within the "purely technical" rule of former Code 1933, § 110-503 (see now O.C.G.A. § 9-12-42) and cannot be considered an adjudication which would bar a subsequent action. Maxey v. Covington, 126 Ga. App. 197, 190 S.E.2d 448 (1972).

Prospective order imposing default not permitted.

- Determination to invoke the penalty of default may not be made in a prospective, self-executing order as the court may not assume that a future failure will be unjustifiable; there must be an opportunity to explain the circumstances following the failure, with an express motion and notice to the party concerned. Delta Equities, Inc. v. Berry, 127 Ga. App. 590, 194 S.E.2d 284 (1972).

Language in order compelling responses, to the effect that "failing to comply with this order, defendant's answers to this complaint are ordered stricken," was invalid and unenforceable, as it had the effect of determining in advance that failure to respond to the order was willful or in conscious disregard of the order and such a determination cannot be made in a prospective, self-executing order. Thornton v. Burson, 151 Ga. App. 456, 260 S.E.2d 388 (1979).

Contempt as remedy.

- Remedy for failure to answer, refusal to answer, or concealment of information is a citation for contempt. Nathan v. Duncan, 113 Ga. App. 630, 149 S.E.2d 383 (1966) (decided under former Code 1933, § 38-2108).

Attorney's defense to the trial court's order holding the attorney in contempt for the attorney's refusal to turn over a client's file challenging the underlying validity of the prior order requiring the attorney to turn over the file was a collateral attack that could be sustained under O.C.G.A. § 9-11-60(a) only if the prior order was void on its face. However, the trial court's prior order was not void on its face since: (1) the attorney was served with a motion to compel prior to the entry of the prior order; (2) the trial court had jurisdiction to issue an order to compel a nonparty to release necessary non-privileged documents specifically prepared in anticipation of a divorce action pending before the trial court under O.C.G.A. §§ 9-11-26(b),9-11-34(c)(1), and9-11-37(a); (3) the attorney willfully disregarded the prior order; and (4) the prior order was entered in a matter over which the trial court had subject matter jurisdiction, making its disobedience contempt of court. Mary A. Stearns, P.C. v. Williams-Murphy, 263 Ga. App. 239, 587 S.E.2d 247 (2003).

To impose a contempt of court sanction there must be an order of court as is contemplated by subsection (b) of this section. Kruger v. Kruger, 146 Ga. App. 461, 246 S.E.2d 469 (1978).

Contempt not authorized in absence of order to appear.

- Because the trial court had not ordered the appellant to appear for deposition, the trial court's order of contempt was not authorized. Heard v. Ruef, Ga. App. , S.E.2d (June 21, 2018).

Submission of untruthful answers as contempt of court.

- Submission of untruthful answers to interrogatories is tantamount to a refusal to submit answers, and if made in defiance of a previous court order could be considered contempt. Aetna Life Ins. Co. v. Greene, 116 Ga. App. 783, 159 S.E.2d 87 (1967) (decided under former Code 1933, § 38-2111).

Jurisdiction of court for contempt purposes.

- Contempt proceeding is not such a case as is contemplated by law in the provision that venue shall be in the county where an offense was committed or in the county of the residence of the respondent; in such cases, jurisdiction of the court trying the case in which evidence is taken by deposition extends to every person in the state whose testimony is being taken thereby, and to every county wherein such testimony is being taken. Sorrells v. Cole, 111 Ga. App. 136, 141 S.E.2d 193 (1965) (decided under former Code 1933, § 38-2111).

Under the look-through rule, a hypothetical coercive claim was the basis for federal jurisdiction over petitioner bank's Federal Arbitration Act petition, but petitioner payday loan companies' arbitration petition was precluded by a related underlying state court judgment holding the companies in contempt and striking the companies' arbitration defenses under O.C.G.A. § 9-11-37(b)(2) to respondent borrower's suit alleging violations of Georgia's usury statute, O.C.G.A. § 7-4-1 et seq.; Georgia's Industrial Loan Act, O.C.G.A. § 7-3-1 et seq.; and Georgia's Racketeer Influenced and Corrupt Organizations statute, O.C.G.A. § 16-14-1 et seq. Cmty. State Bank v. Strong, 651 F.3d 1241 (11th Cir. 2011), cert. denied, U.S. , 133 S. Ct. 101, 184 L. Ed. 2d 22 (2012).

When the deponent appears and is deposed, but eventually refuses to answer further questions, the better practice is an order directing the deponent to continue the deposition and to answer all questions, rather than immediate sanctions under paragraph (b)(2) of this section. King Orthopedic Appliances, Inc. v. Medical Funding Servs., Inc., 152 Ga. App. 544, 263 S.E.2d 485 (1979).

Objection to award of attorney fees without merit.

- Party who fails to respond to interrogatories and does not apply for a protective order is in no position to object to the award of reasonable attorney fees under subsection (b) of this section. Sneider v. English, 129 Ga. App. 638, 200 S.E.2d 469 (1973).

Addition of intervenor plaintiffs in class action after default imposed.

- In a class action when discovery of all persons in the class is required to be made of the defendant, and discovery is unduly delayed by failure of the defendant to comply with an order of the court, addition of intervenor plaintiffs, after imposition of authorized sanction of default judgment, is authorized, in the discretion of the trial court. Sta-Power Indus., Inc. v. Avant, 134 Ga. App. 952, 216 S.E.2d 897 (1975).

Striking of answer reasonable sanction.

- Failure to comply with the trial court's order compelling discovery is ample reason to impose the sanction of striking the answer. Ale-8-One of Am., Inc. v. Graphicolor Servs., Inc., 166 Ga. App. 506, 305 S.E.2d 14 (1983).

When an insurer failed to produce documents after an order compelling production was obtained and after a trial court found that the refusal to comply with that order was wilful and in conscious disregard of the order, dismissal of the insurer's answer and entry of default judgment against the insurer was a proper sanction. State Farm Mut. Auto. Ins. Co. v. Health Horizons, Inc., 264 Ga. App. 443, 590 S.E.2d 798 (2003).

Striking arbitration defenses proper.

- Defendants' discovery violations were willful when the defendants withheld certain documents in order to "test their position," and as the defendants had not sought a protective order under O.C.G.A. § 9-11-26, but instead violated the trial court's orders compelling discovery by withholding the documents the defendants claimed were objectionable, the defendants' failure to comply with discovery orders was not excused; thus, it was a proper sanction under O.C.G.A. § 9-11-37 to strike the defendants' arbitration defenses. Ga. Cash Am., Inc. v. Strong, 286 Ga. App. 405, 649 S.E.2d 548 (2007), cert. denied, 2007 Ga. LEXIS 709 (Ga. 2007).

Inadequate, evasive and unresponsive answers.

- After the court specifically found that answers served after the motion to dismiss was filed were inadequate, evasive, and not responsive and this was amply supported by comparing the straightforward questions and the responses, this finding, along with the time period involved (one year and eight months, of which seven months elapsed between serving of interrogatories and filing of motion to compel answers) was without a doubt sufficient to uphold the exercise of discretion by the trial court in dismissing the complaint. Smith v. National Bank, 182 Ga. App. 55, 354 S.E.2d 678 (1987).

Entry of default judgment and striking of pleading erroneous.

- After the defendant complied with that portion of the court's order directing the defendant to answer interrogatories but failed to pay the plaintiff's attorney fees incurred in obtaining the court order as directed by the court, the court erred in striking the defendant's pleading and entering a default judgment for the plaintiff without giving the defendant an opportunity to explain the failure. Serwitz v. GECC, 174 Ga. App. 747, 331 S.E.2d 95 (1985).

Rendering judgment by default and dismissal of counterclaim appropriate sanction.

- Since the trial court had correctly followed the two-step procedure of O.C.G.A. § 9-11-37 and found the appellant to have repeatedly and willfully abused the discovery procedure, the court did not abuse the court's discretion by striking the appellant's answer, rendering judgment by default, and dismissing the counterclaim. Rubin v. Cindyreal, 171 Ga. App. 45, 318 S.E.2d 520 (1984).

Late request for sanctions.

- Trial court was not justified in dismissing the plaintiff's lawsuit for failure to comply with a discovery order after the defendant made no motion to have sanctions imposed for some one and one-half months after the defendant received the plaintiff's affidavit and copies of the documents sought. Sossenko v. Michelin Tire Corp., 164 Ga. App. 201, 296 S.E.2d 754 (1982).

Sanctions reversed absent order compelling attendance at deposition.

- Although a trial court had jurisdiction to compel a non-resident judgment debtor to attend a postjudgment deposition in Georgia, because the trial court had not yet ordered the judgment debtor to appear for the deposition, the trial court's finding of contempt and award of attorney's fees was not authorized under O.C.G.A. § 9-11-37(b). Heard v. Ruef, Ga. App. , 815 S.E.2d 607 (2018).

Failure to comply when order ambiguous and much of information already provided.

- Trial court erred in dismissing lawsuit for failure to comply with a discovery order since the discovery order was ambiguous and did not require any specific items of information, there was full compliance with the portion of the order pertaining to a request for production of documents, much of the information sought was provided in response to other discovery requests, and counsel attempted unsuccessfully on several occasions to determine what further information was needed. Harwood v. Great Am. Mgt. & Inv., Inc., 171 Ga. App. 488, 320 S.E.2d 269 (1984).

Prospective, self-executing order cannot be used by a trial court to invoke the drastic sanction of dismissal. Steele v. Colbert, 182 Ga. App. 680, 356 S.E.2d 736 (1987).

Imposition of a $500 fine per day for past violations of the court's discovery order was an adjudication of criminal contempt, and the fine was therefore limited by O.C.G.A. § 15-7-4 to $500. Carey Can., Inc. v. Hinely, 257 Ga. 150, 356 S.E.2d 202, cert. denied, 484 U.S. 898, 108 S. Ct. 233, 98 L. Ed. 2d 192 (1987).

Expenses.

- Trial court is without authority to award expenses under subsection (b) of O.C.G.A. § 9-11-37 without some evidence upon which to base a determination that such expenses were "caused by the failure" of the party to comply with the discovery order. Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 360 S.E.2d 70 (1987).

Attorney's fees available if motion for protective order granted.

- In a post-judgment discovery dispute, an award of attorney's fees under O.C.G.A. § 9-15-14(b) was error because that statute did not apply to post-judgment discovery; however, the case was remanded to consider whether fees were appropriate under O.C.G.A. § 9-11-37(a)(4)(A), in connection with the grant of a protective order to the judgment debtor. CEI Servs. v. Sosebee, 344 Ga. App. 508, 811 S.E.2d 20 (2018).

Payment of attorney's fees.

- Defendant's wilful failure to comply with an order requiring the payment of attorney's fees as reimbursement for the expenses incurred by the plaintiff in obtaining a discovery order authorizes the striking of defensive pleadings and the entry of default judgment pursuant to subdivision (b)(2)(C) of O.C.G.A. § 9-11-37. Serwitz v. GECC, 184 Ga. App. 632, 362 S.E.2d 439 (1987); Toles v. G & K Servs., Inc., 230 Ga. App. 452, 496 S.E.2d 550 (1998).

Defendant's failure to make suitable arrangements to pay attorney's fees imposed as a discovery sanction warranted the sanction of dismissal. Stokes v. Taco Bell Corp., 229 Ga. App. 558, 494 S.E.2d 355 (1998), overruled on other grounds, Tenet Healthcare Corp. v. Louisiana Forum Corp., 538 S.E.2d 441 (Ga. 2000).

Because the trial court did not abuse the court's discretion in denying an employee's motions to compel and for sanctions on the ground that the employee did not satisfy the good faith requirement of Ga. Unif. Super. Ct. R. 6.4(B), the award of attorney fees to an employer as authorized by O.C.G.A. § 9-11-37(4)(B) was not improper. Phillips v. Selecto Sci., 308 Ga. App. 412, 707 S.E.2d 615 (2011).

Trial court erred by awarding attorney fees under O.C.G.A. § 9-11-37(a)(4)(A) to a driver injured in a motor vehicle accident based on discovery violations of the car owner because the trial court erroneously believed that the court had issued a prior order compelling the car owner to provide information on locating and serving the car owner's nephew, who caused the rear-end collision. Allison v. Wilson, 320 Ga. App. 629, 740 S.E.2d 355 (2013).

Apportionment of expenses of motion.

- When it was determined that some of the plaintiff company's discovery requests were not made with sufficient particularity and the plaintiff made a good faith effort to resolve the matter, the plaintiff was entitled to pursue a motion to compel and recover the plaintiff's fees under subparagraph (a)(4)(C) of O.C.G.A. § 9-11-37. Mansell 400 Assocs., L.P. v. Entex Info. Servs., Inc., 239 Ga. App. 477, 519 S.E.2d 46 (1999).

Poverty as excuse or justification.

- Proper time to offer one's poverty as an excuse or justification to the court for one's failure to comply with the court's discovery order is at the hearing on the imposition of sanctions. Serwitz v. GECC, 184 Ga. App. 632, 362 S.E.2d 439 (1987).

Sanctions imposed.

- Since the plaintiff was in willful contempt of two judges' discovery orders, the plaintiff was properly assessed with attorney fees, court reporter costs, default judgment entered against the plaintiff and found in continuing contempt. Jones v. Zezzo, 162 Ga. App. 281, 290 S.E.2d 312 (1982).

Attorney fees properly denied.

- Trial court properly rejected the hospital's claim for additional attorney fees under O.C.G.A. § 9-11-37(c) because the jury could have determined that the doctor simply did not remember signing a contract and the trial court did not err by finding that the doctor had not failed to admit the truth of the matter. Whitaker v. Houston County Hosp. Auth., 272 Ga. App. 870, 613 S.E.2d 664 (2005).

Sanctions as enforcement of absolute duty to respond.

- Party properly served has an absolute duty to respond, and the court may enforce this duty by imposing sanctions for the duty's violation. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979); Suchnick v. Southern Gen. Ins. Co., 196 Ga. App. 687, 396 S.E.2d 609 (1990); Cannon Air Transp. Servs. v. Stevens Aviation, Inc., 249 Ga. App. 514, 548 S.E.2d 485 (2001).

Order not required.

- Prior to imposing the sanction of dismissal under subsection (d) of O.C.G.A. § 9-11-37, there need be no order to compel discovery as provided for in subsection (b) of § 9-11-37; all that is required is a motion, notice, and a hearing. Stolle v. State Farm Mut. Auto. Ins. Co., 206 Ga. App. 235, 424 S.E.2d 807 (1992).

No contempt of court under subsection (d).

- Since there will have been no court order in the situations to which subsection (d) of this section speaks, there can be no contempt of court thereunder. Kruger v. Kruger, 146 Ga. App. 461, 246 S.E.2d 469 (1978).

Attorney referred to in subsection (d) of O.C.G.A. § 9-11-37 is ordinarily the attorney advising the party at the time of the hearing on the motion to compel. Nodvin v. Investguard, Ltd., 261 Ga. 805, 411 S.E.2d 708 (1992).

Notice of hearing on motion to compel required.

- Whenever a party seeks sanctions under subsection (d) of O.C.G.A. § 9-11-37 against the other party's former counsel, the former counsel must be notified of the hearing on the motion to compel and must be given an opportunity to be heard. Nodvin v. Investguard, Ltd., 261 Ga. 805, 411 S.E.2d 708 (1992).

Hearing required.

- Because a trial court dismissed a healthcare network's breach of contract and fraud action for failure to comply with discovery under O.C.G.A. § 9-11-37(d) without holding a hearing on a hospital's motion to dismiss, the trial court abused the court's discretion. ASAP Healthcare Network, Inc. v. Southwest Hosp. & Med. Ctr., Inc., 270 Ga. App. 76, 606 S.E.2d 98 (2004).

In a suit to confirm paternity and enforce a child support payment, a trial court abused the court's discretion in imposing sanctions against the father under O.C.G.A. § 9-11-37(b)(2) for his alleged failure to comply with production requests because the trial court failed to provide the father an opportunity to be heard prior to imposing sanctions. Harrell v. Ga. Dep't of Human Res., 300 Ga. App. 497, 685 S.E.2d 441 (2009).

Because there was evidence that the defendants' failure to respond to discovery requests was negligent rather than wilful, with the defendants claiming not to have received the discovery requests, and defendants did respond to the discovery, albeit over a year later, the trial court erred in striking the defendants' answer as a sanction without a hearing as required by O.C.G.A. § 9-11-37(d). Am. Radiosurgery, Inc. v. Rakes, 325 Ga. App. 161, 751 S.E.2d 898 (2013).

Imposition of sanctions under subsections (b) and (d) distinguished.

- Subsection (d) of this section deals with failure to make the initial response required, while subsections (a) and (b) provide a method of resolving differences between the parties and enforcing the court's determination; thus, there must be an order under subsection (a) before sanctions are imposed under subsection (b), while under subsection (d) the party aggrieved moves directly for the imposition of sanctions. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Immediate sanctions authorized under subsection (d).

- Subsection (d) of this section permits the sanctions of subsection (b) to be imposed immediately for certain failures to act. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Serious or total failure to respond is prerequisite.

- Authorization of immediate sanctions under subsection (d) of this section applies to nothing less than a serious or total failure to respond to interrogatories. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979); Wetherington v. Koepenick & Horne, Inc., 153 Ga. App. 302, 265 S.E.2d 107 (1980); Wills v. McAuley, 166 Ga. App. 4, 303 S.E.2d 26, cert. denied, 251 Ga. 41, 305 S.E.2d 120 (1983).

Total failure to serve answers or objections constitutes a failure to respond under subsection (d) of this section, and subjects a party to immediate sanctions. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979); Wills v. McAuley, 166 Ga. App. 4, 303 S.E.2d 26, cert. denied, 251 Ga. 41, 305 S.E.2d 120 (1983).

Trial court did not abuse the court's discretion in dismissing the appellant's complaint after the appellant totally failed to answer, or properly object to, the appellee's interrogatories. Tompkins v. McMickle, 172 Ga. App. 62, 321 S.E.2d 797 (1984).

Upon being informed that the plaintiff still had failed totally to answer the interrogatories and to comply with the other proper and timely discovery, and considering the entire history of the proceeding, the trial court was authorized to impose immediately the ultimate sanction authorized by subsection (d) of O.C.G.A. § 9-11-37. Vining v. Kimoto USA, Inc., 209 Ga. App. 296, 433 S.E.2d 342 (1993).

Former employee's federal claims against a former employer were barred by the doctrine of res judicata, even though the state court in the employee's prior action did not hold a hearing before dismissing the employee's complaint under O.C.G.A. § 9-11-37(d)(1), because the employee completely ignored the employer's discovery requests, failed to respond to the employer's properly served motion for sanctions, and failed to request a hearing on the motion; thus, the state court was not required to hold a hearing before imposing the sanction of dismissal. Moten v. Alberici Constructors, Inc., 380 F. Supp. 2d 1355 (N.D. Ga. 2005).

Issuance of order not prerequisite to imposition of sanctions.

- When a party entirely fails to respond to a set of interrogatories, sanctions may be imposed directly under subsection (d) of this section and a motion for an order compelling discovery under paragraph (a)(2) is not required. Sneider v. English, 129 Ga. App. 638, 200 S.E.2d 469 (1973).

Under subsection (d) of this section, failure of a party to appear for the taking of a deposition is grounds for the imposition of the sanctions contained therein, and unlike the similar sanctions found in subsection (b), there need be no order of court as a basis for imposition of the sanctions found in subsection (d). Kruger v. Kruger, 146 Ga. App. 461, 246 S.E.2d 469 (1978).

Order compelling discovery was not a condition precedent for the imposition of sanctions under O.C.G.A. § 9-11-37(d), and all that was required was a motion, notice, and a hearing; when a land owner presented no justification for the land owner's failure to respond to discovery and did not respond to motions to compel and for sanctions, the trial court did not err in dismissing the land owner's complaint due to a failure to respond to discovery. Crane v. Darnell, 268 Ga. App. 311, 601 S.E.2d 726 (2004).

Dismissal and default authorized without prior order.

- Order dismissing the defendant's answer and rendering a judgment against the defendant as if in default is authorized under subsection (d) of this section without a prior order. Carter v. Merrill Lynch, Pierce, Fenner & Smith, 130 Ga. App. 522, 203 S.E.2d 766 (1974).

Order imposing sanctions of dismissing defensive pleadings and rendering default judgment for failure to make discovery may be applied by the court without first ordering compliance. Houston Gen. Ins. Co. v. Stein Steel & Supply Co., 134 Ga. App. 624, 215 S.E.2d 511 (1975).

Willfulness relevant in choice of sanction.

- Any failure of the sort described in subsection (d) of this section permits invocation of the rule, regardless of the reason for the failure, but the court has discretion about the sanction to be imposed, and the presence or absence of willfulness remains relevant in the choice of sanction. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Dismissal proper for intentional failure to respond.

- Plaintiff's failure to answer served interrogatories was the result of a conscious or intentional failure to act warranting dismissal, as distinguished from an accidental or involuntary noncompliance, since the interrogatories went unanswered for over eight months and were ultimately answered only after the defendant moved for sanctions. Fidelity Enters., Inc. v. Heyman & Sizemore, 206 Ga. App. 602, 426 S.E.2d 177 (1992).

Plaintiff's persistent failure to answer the interrogatories and to comply with other proper and timely discovery warranted dismissal of the complaint as authorized by subsection (d) of O.C.G.A. § 9-11-37. Vining v. Kimoto USA, Inc., 209 Ga. App. 296, 433 S.E.2d 342 (1993).

Plaintiff's intentional failure to attend the plaintiff's deposition and answer discovery requests warranted dismissal of the complaint, and the fact that the defendant also failed to respond to discovery did not excuse the plaintiff's failure to comply with the rules. West v. Equifax Credit Info. Servs., Inc., 230 Ga. App. 41, 495 S.E.2d 300 (1998).

Trial court could determine that the plaintiff's noncompliance was intentional based on evidence that the plaintiff failed to respond to requested discovery or to appear at the deposition without excuse or justification for the plaintiff's nonappearance. Rivers v. Almand, 241 Ga. App. 565, 527 S.E.2d 572 (1999).

Trial court's striking of the home owners' complaint in their civil action, arising from allegedly defective construction issues, was not an abuse of discretion pursuant to O.C.G.A. § 9-11-37(b)(2)(C) because the owners wilfully failed to comply with discovery requests, despite repeated warnings and orders over an ongoing period of time; there was a motion for sanctions, which allowed the owners an opportunity to be heard on the matter, and the parties had made more than one attempt to resolve the discovery disputes, pursuant to Ga. Unif. Super. Ct. R. 6.4. Gropper v. STO Corp., 276 Ga. App. 272, 623 S.E.2d 175 (2005).

Finding of willful failure is necessary before trial judge is authorized to enter default judgment against a disobedient defendant. Frady v. Irvin, 245 Ga. 307, 264 S.E.2d 866 (1980).

Failure to make findings of willfulness not always reversible error.

- Although it is the better practice to make a specific finding of willfulness, it is not reversible error for the trial court to fail to do so, particularly if the motion for sanctions alleges willful conduct. Phillips v. Peachtree Hous., 138 Ga. App. 596, 226 S.E.2d 616 (1976).

Specific finding of willfulness in judgment not necessary.

- Law authorizes the imposition of sanctions striking the defendant's pleadings when the failure to answer interrogatories is willful, but there is no requirement that the court make a specific finding in the court's judgment that such failure to answer was willful. Smith v. Byess, 127 Ga. App. 39, 192 S.E.2d 552 (1972).

Trial court's finding that the litigant's failure to answer was willful need not be explicitly stated in the court's order because it is implicit in the judgment itself that the court made such finding of willfulness. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Echols, 138 Ga. App. 593, 226 S.E.2d 742 (1976).

Finding that the plaintiff not only failed to respond to the defendants' interrogatories in a timely fashion, but failed to seek an extension of time and failed even to contact the defendants concerning the problem, or even to respond to the defendants' motion to dismiss, was sufficient to authorize the trial court to dismiss the complaint. There is no requirement that the plaintiff display and the trial court find actual "wilfulness," only a "conscious or intentional failure to act," as distinguished from an accidental or involuntary noncompliance. Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344, 373 S.E.2d 50 (1988); Roberts v. Maren Eng'g Corp., 225 Ga. App. 110, 483 S.E.2d 141 (1997).

There is no requirement that the plaintiff display and the trial court find actual willfulness. The sanction of dismissal for failure to comply with discovery provisions requires only a conscious or intentional failure to act as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact willful. Dyer v. Spectrum Eng'g, Inc., 245 Ga. App. 30, 537 S.E.2d 175 (2000).

Sanctions not authorized despite false swearing.

- When the defendant answered the interrogatories and appeared for the defendant's deposition, thereby making the initial response required by subsection (d) of O.C.G.A. § 9-11-37, the sanctions imposed, striking the defendant's answer and enteringa default judgment finding the defendant liable, were not authorized, although the defendant's false swearing was found to have been deliberate, without an excuse, in an attempt to secrete facts from the court. Wills v. McAuley, 166 Ga. App. 4, 303 S.E.2d 26, cert. denied, 251 Ga. 41, 305 S.E.2d 120 (1983).

Willful attempt to conceal document.

- In an action for breach of an employment contract, the trial court did not err by imposing the sanction of dismissal after the court found that the plaintiff willfully attempted to conceal a document which could have had a major impact on the litigation. Santora v. American Combustion, Inc., 225 Ga. App. 771, 485 S.E.2d 34 (1997).

Willful failure to appear at deposition.

- Trial court is authorized to impose sanctions under subsection (d) of O.C.G.A. § 9-11-37 when a party has willfully failed to appear at a deposition. Cook v. Lassiter, 159 Ga. App. 24, 282 S.E.2d 680 (1981); Washington v. South Ga. Medical Ctr., 221 Ga. App. 640, 472 S.E.2d 328 (1996); James v. Gray, 229 Ga. App. 39, 494 S.E.2d 198 (1997); King v. Board of Regentes of Univ. Sys. of Ga., 238 Ga. App. 4, 516 S.E.2d 581 (1999).

There is no requirement that a trial court expressly find willful noncompliance in order to impose sanctions under O.C.G.A. § 9-11-37(d). Furthermore, it is unnecessary to issue an order compelling discovery under O.C.G.A. § 9-11-37(b) as a condition to imposing sanctions. Washington v. Harris, 259 Ga. App. 705, 578 S.E.2d 286 (2003).

Late filing of answers.

- Since the record showed that answers were not filed until 65 days after the interrogatories were filed and served by mail, long after the time for timely responses, the trial court did not abuse the court's discretion in striking the company's defenses in an action brought for toxic gas leaks. Kemira, Inc. v. Amory, 210 Ga. App. 48, 435 S.E.2d 236 (1993).

Late answers to interrogatories which are filed after propounder has filed motion seeking sanction of dismissal do not nullify the motion. To hold otherwise would completely nullify the effect of subsection (d) of O.C.G.A. § 9-11-37, for routine acceptance of late filing would have the effect of casting the procedure for sanctions for late filing under subsections (a), (b), and (c) of that section, requiring an order and that order's violation before sanctions could be imposed, and thereby precluding the sanctions of subsection (d) of that section and vitiating the discretion of the trial court. Rucker v. Blakey, 157 Ga. App. 615, 278 S.E.2d 158 (1981).

Dismissal under subsection (d) of this section is discretionary. Old S. Inv. Co. v. Aetna Ins. Co., 124 Ga. App. 697, 185 S.E.2d 584 (1971).

Dismissal and default proper only in flagrant cases.

- Drastic sanctions of dismissal and default cannot be invoked under subsection (d) of this section except in the most flagrant cases, when the failure is willful, in bad faith, or in conscious disregard of an order. Delta Equities, Inc. v. Berry, 127 Ga. App. 590, 194 S.E.2d 284 (1972).

Defendant's statement that the defendant would never obey an order of court requiring that the defendant divulge news sources, the defendant's consistent resort to evasive and incomplete responses throughout the defendant's deposition, and the defendant's failure to offer a legal basis for the defendant's refusal to testify when invited to do so during the deposition, supported the trial court's conclusion that the defendant was not acting in good faith, and the court's dismissal of the defendant's defensive pleadings to the defamation action was proper. Georgia Communications Corp. v. Horne, 164 Ga. App. 227, 294 S.E.2d 725 (1982).

Pursuant to paragraph (d)(1) of O.C.G.A. § 9-11-37, the trial court may impose the immediate sanction of dismissal for the plaintiff's failure to respond to the defendant's discovery requests. Evans v. East Coast Intermodal Sys., 191 Ga. App. 749, 382 S.E.2d 743 (1989).

Trial court did not abuse the court's discretion in striking the respondent's defensive pleadings and entering a default judgment in favor of her former husband in a paternity proceeding, after she willfully and without any legal justification refused to obey the court's order that she submit to a blood test. Roderiquez v. Saylor, 190 Ga. App. 742, 380 S.E.2d 339 (1989).

Trial court properly issued an order finding the plaintiff had willfully failed to comply with the court's earlier order and dismissing the plaintiff 's complaint with prejudice, since the plaintiff failed to comply with the trial court's order by failing to serve complete responses to interrogatories, to pay attorney fees and costs as ordered by the court, and to appear for deposition. Huff v. E.L. Davis Contracting Co., 195 Ga. App. 691, 394 S.E.2d 615 (1990).

Dismissal for conscious or intentional failure.

- Harsh sanctions of dismissal or default provided in subsection (d) of this section against a party for willfully failing to appear before an officer for the taking of a deposition apply only when there is a conscious or intentional failure to appear as distinguished from an accidental or involuntary noncompliance. Smith v. Mullinax, 122 Ga. App. 833, 178 S.E.2d 909 (1970).

Accidental or involuntary noncompliance.

- Sanction of dismissal for failure to comply with discovery provisions requires a conscious or intentional failure to act as distinguished from an accidental or involuntary noncompliance. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Echols, 138 Ga. App. 593, 226 S.E.2d 742 (1976).

When 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. Barron v. Spanier, 198 Ga. App. 801, 403 S.E.2d 88 (1991).

Dismissal permitted for willful failure to answer.

- Subsection (d) of this section allows the court to dismiss a complaint without first issuing an order to comply when a party has willfully failed to answer propounded interrogatories. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Echols, 138 Ga. App. 593, 226 S.E.2d 742 (1976).

Failure to supplement resulted in exclusion of evidence not disclosed.

- In a medical malpractice case in which the patient's counsel did not disclose the existence of an affidavit from a doctor who had spoken to the defendant doctor about the patient's treatment, the existence of the affidavit should have been disclosed pursuant to O.C.G.A. § 9-11-26(e)(2)(B) although the affidavit was created after the patient provided interrogatory answers; the affidavit was properly excluded under O.C.G.A. § 9-11-37(d). Anglin v. Smith, 346 Ga. App. 456, 816 S.E.2d 426 (2018).

Mistrial declared.

- When the defendant proffered evidence at trial that should have been disclosed during discovery, the trial court's declaration of a mistrial was proper. Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 452 S.E.2d 159 (1994), overruled on other grounds by Chrysler Group LLC v. Walden, 2018 Ga. LEXIS 154 (Ga. 2018).

Failure to cooperate with counsel as willful misconduct.

- Failure to maintain contact and cooperate with counsel about pending litigation so that discovery can be made is willful misconduct for purposes of sanctions under subsection (d) of this section. Phillips v. Peachtree Hous., 138 Ga. App. 596, 226 S.E.2d 616 (1976).

Willful failure to answer by attorney in fact.

- When a nonresident defendant authorized the defendant's attorney to act as the defendant's attorney in fact to do all things necessary in defense of the law suit, the trial judge did not abuse the judge's discretion in finding willful failure to answer interrogatories and in imposing the harsh sanction of striking the defendant's answer and entering a default judgment. Gregory v. King Plumbing, Inc., 127 Ga. App. 512, 194 S.E.2d 271 (1972).

An evasive answer does not authorize entry of penalties under subsection (d) of this section. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Dismissal of a complaint as a sanction for giving partial and evasive answers to certain interrogatories was an abuse of discretion when no order was ever entered requiring that the party provide more complete responses to the interrogatories. Strejc v. Metropolitan Atlanta Rapid Transit Auth., 197 Ga. App. 88, 397 S.E.2d 501 (1990).

Imposition of penalties under subsection (d) of O.C.G.A. § 9-11-37 is limited to an absolute failure to respond. When an evasive or incomplete response is given, the proper remedy is a motion to compel resulting in a court order under subsection (a). Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 452 S.E.2d 159 (1994), overruled on other grounds by Chrysler Group LLC v. Walden, 2018 Ga. LEXIS 154 (Ga. 2018).

Inadequate response not equivalent to total failure.

- Response to the order to compel, although inadequate, should not have been treated as a total failure to respond under subsection (d) of this section so as to authorize imposition of the ultimate sanction; the court, in ordering further discovery after finding answers insufficient, could have set forth with specificity the details the answering party was to furnish, and if, after being compelled to supply enumerated deficiencies, the answering party failed to respond either in a timely fashion or in exact accordance with the order, a subsequent order granting judgment by default would be justified. Thornton v. Burson, 151 Ga. App. 456, 260 S.E.2d 388 (1979).

Trial court abused the court's discretion in dismissing the plaintiff's complaint with prejudice after the defendant did not contend that the plaintiff had failed to respond to interrogatories but only that the answers given were insufficient. Holt v. Brown, 177 Ga. App. 823, 341 S.E.2d 486 (1986).

Entry of default for answer by one not qualified to act as agent error.

- Since a party answering interrogatories for a corporation was not qualified to speak as the party's agent, the court could have issued an order under subsection (a) of this section, and it was error to strike the defendant's response and enter a default judgment, treating the defendant's inadequate answer as a total failure to make an initial response under subsection (d) of this section. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Since subsection (d) of this section is intended to enforce the duty to respond to interrogatories, imposition of sanctions thereunder was error when the defendant corporation attempted to respond to interrogatories, through an individual who was adjudged not qualified to speak as an agent of the corporation. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Default not proper in face of pending motion for protective order.

- When a motion for a protective order concerning interrogatories has not been ruled upon, entry of a default judgment for failure to answer under subsection (d) of this section is error. Corey v. Renard, 151 Ga. App. 584, 260 S.E.2d 538 (1979); Dismuke v. Dismuke, 195 Ga. App. 613, 394 S.E.2d 371 (1990), cert. denied, 1995 Ga. LEXIS 1050 (1995), cert. denied, 1999 Ga. LEXIS 39 (1999).

Nonspecific request for sanctions permissible.

- Nonspecific request for sanctions to punish a failure to respond to interrogatories is permissible under subsection (d) of this section. Mayer v. Interstate Fire Ins. Co., 243 Ga. 435, 254 S.E.2d 825 (1979).

No authority to impose subsection (d) sanctions if response filed.

- Authority to apply sanctions under subsection (d) of this section for complete failure to respond to notice to produce and for failure to answer interrogatories is lost once response has been filed and interrogatories have been answered. Rollins Communications, Inc. v. Henderson, Few & Co., 140 Ga. App. 504, 231 S.E.2d 412 (1976).

Right to seek sanctions is waived when answer filed.

- Once answers to interrogatories are filed, even though filed late, the propounder waives the right to ask the court to apply sanctions under subsection (d) of this section. Bratten Apparel, Inc. v. Lyons Textile Mill, Inc., 129 Ga. App. 384, 199 S.E.2d 632 (1973).

Absent timely motion, authority to apply sanctions enumerated in subsection (d) of this section is lost once answers to interrogatories are filed, even though the answers are filed late, because once such answers are filed the propounder waives the right to ask the court to apply sanctions under subsection (d). Record Shack of Atlanta, Inc. v. Daugherty, 147 Ga. App. 753, 250 S.E.2d 154 (1978).

Sanctions not precluded by late response after motion.

- Once a motion for sanctions under subsection (d) of this section has been filed, the opposite party may not preclude their imposition by making a belated response at the hearing. Houston Gen. Ins. Co. v. Stein Steel & Supply Co., 134 Ga. App. 624, 215 S.E.2d 511 (1975); Wetherington v. Koepenick & Horne, Inc., 153 Ga. App. 302, 265 S.E.2d 107 (1980).

Once motion for sanctions has been filed, the opposite party may not preclude their imposition by making a belated response in the interim before the hearing or at the hearing itself. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Echols, 138 Ga. App. 593, 226 S.E.2d 742 (1976).

Trial court did not lose the court's authority to impose sanctions due to the defendant's failure to respond to interrogatories simply because answers to the interrogatories were eventually filed following the motion for sanctions and prior to the hearing. Danger v. Strother, 171 Ga. App. 607, 320 S.E.2d 613 (1984).

Once a motion for sanctions is filed for failure to respond to interrogatories, sanctions may be entered under paragraph (d)(1) of O.C.G.A. § 9-11-37, even if responses are subsequently filed. Gazelah v. Rome Gen. Practice, Inc., 232 Ga. App. 343, 502 S.E.2d 251 (1998).

Sanctions not avoided by attack on request.

- Party who fails to respond to a set of interrogatories cannot avoid sanctions by contending that the request for interrogatories was improper or objectionable. Sneider v. English, 129 Ga. App. 638, 200 S.E.2d 469 (1973).

Failure to act in good faith supported award.

- In a suit for breach of contract, trade secret misappropriations, and other business tort claims, the trial court did not abuse the court's discretion by ordering sanctions for discovery violations upon the defendants, including attorney fees, because the trial court concluded that the defendants did not act in good faith compliance with the protective order when the defendants marked more than 129,000 discovery documents confidential. Hull v. WTI, Inc., 322 Ga. App. 304, 744 S.E.2d 825 (2013).

Refusal of sanctions as abuse of discretion.

- Although the terms of subsection (d) of this section are discretionary, there may be circumstances when refusal of a party to appear for taking of depositions after proper notice is so flagrantly willful and productive of injury to the other side that it would be an abuse of discretion on the part of the trial court to refuse punitive action. Hohlstein v. White, 117 Ga. App. 207, 160 S.E.2d 232 (1968).

Trial court abused the court's discretion in denying the plaintiff's motion for sanctions after the defendant delayed in responding to the plaintiff 's interrogatories for 14 months with no apparent justification, while placing on plaintiff the expense of responding to the defendant's own discovery and the expense and delay of moving for the court's intervention. Vlasz v. Schweikhardt, 178 Ga. App. 512, 343 S.E.2d 749 (1986).

Dismissal of earlier complaint justifies later summary judgment for same claim for relief.

- Trial court did not err in granting a motion for summary judgment based upon the defense of res judicata, following dismissal of an earlier complaint, containing exactly the same material allegations and asserting the same claim for relief, for failure to answer interrogatories. Brantley v. Sparks, 167 Ga. App. 323, 306 S.E.2d 337 (1983).

Denial of a motion to apply sanctions was not an abuse of discretion since the evidence showed the failure to comply with interrogatories was caused by counsel being a considerable distance from the client and the fact that the client's occupation was a hindrance to the completion of the interrogatories before another lawyer who had similar scheduling problems. Hiney v. Bennaman, 177 Ga. App. 753, 341 S.E.2d 284 (1986).

Since the discovery sanction hearing was not transcribed, the appellate court assumed the trial court's action in imposing sanctions was supported by the record; there was no abuse of discretion in the striking of the city's answer and the entry of default judgment against the city as sanctions for the failure to fully comply with discovery requests. City of Atlanta v. Paulk, 274 Ga. App. 10, 616 S.E.2d 210 (2005).

Failure of party either to respond to interrogatories or to seek protective order authorizes the imposition of immediate sanctions without the preliminary necessity of an order to compel. Bryant v. Nationwide Ins. Co., 183 Ga. App. 577, 359 S.E.2d 441 (1987) (dismissal of complaint not abuse of discretion).

Failure to verify answers.

- Plaintiff's failure to verify the plaintiff's interrogatory answers does not constitute a willful total failure to respond and, therefore, did not justify the sanction of dismissing the defendant's complaint since the responses were submitted on behalf of two plaintiffs prior to the motion for sanctions and since the second signed and verified the answers. Rivers v. Goodson, 184 Ga. App. 70, 360 S.E.2d 740 (1987).

Plaintiff's failure to appear at a deposition and to pay certain court-ordered attorney fees warrants the extreme sanction of dismissal of the offending party's pleadings. Peoples v. Yu, 184 Ga. App. 252, 361 S.E.2d 244 (1987).

Response after filing of motion for sanctions.

- Once a motion for sanctions has been filed, imposition of sanctions cannot be precluded by a belated response made by the opposite party. Rogers v. Sharpe, 206 Ga. App. 353, 425 S.E.2d 391 (1992).

Assessment of reasonable expenses authorized.

- Among the sanctions imposed by subsection (d) of this section is the assessment of reasonable expenses occasioned by the failure. Kruger v. Kruger, 146 Ga. App. 461, 246 S.E.2d 469 (1978).

Proof of damages after imposition of default sanction.

- Although subsection (d) of Ga. L. 1970, p. 157, § 1 (see now O.C.G.A. § 9-11-37) is silent on the question of necessity of proof of damages when the sanction of judgment by default has been imposed against a disobedient party, the principles of Ga. L. 1967, p. 226, § 24 (see now O.C.G.A. § 9-11-55(a)) should apply to a judgment by default imposed under subsection (d) of Ga. L. 1970, p. 157, § 1. House v. Hewett Studios, Inc., 125 Ga. App. 127, 186 S.E.2d 584 (1971); Sterling Factors v. Whelan, 245 Bankr. 698 (N.D. Ga. 2000).

Sanctions proper for discovery abuse.

- In a negligence case, a trial court did not abuse the court's discretion by striking the defendants' joint answer and counterclaim as a sanction for discovery abuse because the evidence established that the defendants intentionally and in bad faith concealed damaging evidence by repairing the tractor trailer and destroying information from the computer units involved in the accident, provided false answers to interrogatories, and the plaintiff was prejudiced by the misconduct. Howard v. Alegria, 321 Ga. App. 178, 739 S.E.2d 95 (2013).

Failure to object to order of contempt waived appeal.

- In an appeal challenging an order of contempt arising as a discovery sanction entered against the appellants, the court held that because the appellants failed to object below about the order to compel and for sanctions, the appellants did not give the trial court opportunity to correct the alleged error, therefore, there was nothing for the appellate court to review. Roberts v. First Ga. Cmty. Bank, 335 Ga. App. 228, 779 S.E.2d 113 (2015).

Am. Jur. 2d.

- 23 Am. Jur. 2d, Depositions and Discovery, § 200 et seq.

C.J.S.

- 27 C.J.S., Discovery, §§ 49, 98 et seq., 115-117, 180, 181. 35A C.J.S., Federal Civil Procedure, §§ 592 et seq, 674 et seq., 707, 709, 710, 738, 746, 753. 35B C.J.S., Federal Civil Procedure, §§ 788 et seq., 1164, 1330.

ALR.

- Validity of statutory provision for attorneys' fees, 90 A.L.R. 530.

Constitutionality, construction, and application of statutes or rules of court which permit setting aside a plea and giving judgment by default, or dismissing suit, because of disobedience of order, summons, or subpoena duces tecum requiring production of documents, 144 A.L.R. 372.

Admissibility of evidence of party's refusal to permit examination or inspection of property or person, 175 A.L.R. 234.

Granting relief not specifically demanded in pleading or notice in rendering default judgment in divorce or separation action, 12 A.L.R.2d 340.

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

Taxation of costs and expenses in proceedings for discovery or inspection, 76 A.L.R.2d 953.

Propriety of discovery interrogatories calling for continuing answers, 88 A.L.R.2d 657.

Availability of mandamus or prohibition to compel or to prevent discovery proceedings, 95 A.L.R.2d 1229.

Right of member, officer, agent, or director of private corporation or unincorporated association to assert personal privilege against self-incrimination with respect to production of corporate books or records, 52 A.L.R.3d 636.

Failure of party or his attorney to appear at pretrial conference, 55 A.L.R.3d 303.

Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109.

Tort or statutory liability for failure or refusal of witness to give testimony, 61 A.L.R.3d 1297.

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.

Discovery of hospital's internal records or communications as to qualifications or evaluations of individual physician, 81 A.L.R.3d 944.

Award of damages for dilatory tactics in prosecuting appeal in state court, 91 A.L.R.3d 661.

Attorney's conduct in delaying or obstructing discovery as basis for contempt proceeding, 8 A.L.R.4th 1181.

Judgment in favor of plaintiff in state court action for defendant's failure to obey request or order for production of documents or other objects, 26 A.L.R.4th 849.

Dismissal of state court action for failure or refusal of plaintiff to obey request or order for production of documents or other objects, 27 A.L.R.4th 61.

Judgment in favor of plaintiff in state court action for defendant's failure to obey request or order to answer interrogatories or other discovery questions, 30 A.L.R.4th 9.

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.

Propriety of allowing state court civil litigant to call expert witness whose name or address was not disclosed during pretrial discovery proceedings, 58 A.L.R.4th 653.

Propriety of allowing state court civil litigant to call nonexpert witness whose name or address was not disclosed during pretrial discovery proceedings, 63 A.L.R.4th 712.

Authority of court, upon entering default judgment, to make orders for child custody or support which were not specifically requested in pleadings of prevailing party, 5 A.L.R.5th 863.

Availability of sole shareholder's Fifth Amendment privilege against self-incrimination to resist production of corporation's books and records--modern status, 87 A.L.R. Fed. 177.

Sanctions for failure to make discovery under Federal Civil Procedure Rule 37 as affected by defaulting party's good faith efforts to comply, 134 A.L.R. Fed 257.

Federal district court's power to impose sanctions on non-parties for abusing discovery process, 149 A.L.R. Fed. 589.

Propriety of exclusion of expert testimony as sanction under Federal Civil Procedure Rule 37 (b)(2)(B) for violation of discovery order, 151 A.L.R. Fed. 561.