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FEDERAL VS. STATE COURT IN GEORGIA
By Martin A. Levinson [email protected]
Hawkins Parnell Thackston & Young LLP Atlanta, Georgia
February 2015
Key Differences,
Practice Pointers, and
Tips for Litigators
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Federal vs. State Court in Georgia: Key Differences, Practice Pointers, and Tips for Litigators
Martin A. Levinson Hawkins Parnell Thackston & Young LLP
Atlanta, Georgia
February 2015
Table of Contents Introduction .................................................................................................................................................. 1
Timing and Content of Pleadings ................................................................................................................. 1
Filing Answer to Complaint and Asserting Defenses ................................................................................ 1
Asserting/Waiving the Right to Trial by Jury ............................................................................................. 3
Filing Third-Party Complaints .................................................................................................................... 4
Amending Pleadings .................................................................................................................................. 4
Special Pleading and Formatting Requirements ....................................................................................... 4
Scheduling and Discovery Procedures ......................................................................................................... 5
Initial Disclosures and Scheduling Requirements ..................................................................................... 5
Initial Planning Conference (Federal Court) .............................................................................................. 6
Scheduling Orders and Sanctions for Noncompliance .............................................................................. 7
Written Discovery ..................................................................................................................................... 8
Deposition Practice ................................................................................................................................. 10
Post-Discovery Conference (Northern District of Georgia) .................................................................... 12
Objections Based on Asserted Privilege and “Work Product” Grounds ................................................. 12
Expert Witnesses—Disclosure and Challenges to Testimony ................................................................. 13
Discovery and Disclosure of Information Regarding Experts......................................................... 13
Admissibility and Exclusion of Expert Testimony on Substantive Grounds ................................... 14
Exclusion of Expert Testimony for Untimely Disclosure ................................................................ 17
Motion Practice and Deadlines .................................................................................................................. 18
Dismissal, Adding/Dropping Parties, and Consolidating Cases ................................................................ 20
Pretrial Procedure ...................................................................................................................................... 21
Introduction
Handling cases in both federal and state court in Georgia is fertile ground for making
procedural mistakes, as there are significant differences in how a case must be handled by an
attorney in state and federal court. Often the federal rules contain additional or more
restrictive requirements on pleading and filing motions, but that is not always the case. In
addition, the variability of civil practice from one state court to the next can make things very
confusing for an attorney who practices in many different state and superior courts in
Georgia. While there are enough differences between the two court systems to fill an entire
book, this paper will discuss some of the more significant distinctions as well as some that
practitioners are more likely to encounter in day-to-day litigation practice.
I. Timing and Content of Pleadings
A. Filing Answer to Complaint and Asserting Defenses
There are a number of important differences between state and federal court practice
in the context of pleadings. Some of the most elementary differences are in the timing of
filing an answer or other defensive pleadings (or whether an answer or defensive pleading
must be filed at all in certain circumstances). In state court, the answer to a complaint is due
30 days after service of the summons and complaint unless proof of service is not filed with
the court within five business days after service was made, in which case the answer will not
be due until 30 days after proof of service is filed. O.C.G.A. §§ 9-11-12(a), 9-11-4(h). No
answer is required to a cross-claim or counterclaim unless ordered by the court. O.C.G.A. §
9-11-12(a).
In federal court, by contrast, a defendant’s answer is due 21 days after service of the
summons of complaint. FED. R. CIV. P. 12(a)(1)(A). And any party served with a counterclaim
or crossclaim must serve an answer to the counterclaim or crossclaim within 21 days. FED.
R. CIV. P. 12(a)(1)(B). If a party is ordered by the court to reply to an answer, that reply will
be due within 21 days after being served with the order, unless the order specifies a different
time. FED. R. CIV. P. 12(a)(1)(C). In the U.S. District Court for the Middle District of Georgia,
parties are limited to a single stipulation of no more than 30 days of the time for a defendant
to file an answer to the plaintiff’s complaint without court of approval. M.D. Ga. L.R. 6.1.
Another key difference exists with regard to asserting certain defenses and whether
failing to assert those defenses in an initial responsive pleading or contemporaneous motion
will amount to waiver of the defense. In Georgia state and superior courts, the defenses of
lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of
process are waived if not raised in the initial responsive pleading or written motion before or
at the time of the initial pleading. O.C.G.A. § 9-11-12(b). In federal court, a party may assert
the defenses of lack of subject-matter jurisdiction, lack of personal jurisdiction, improper
venue, insufficient process, insufficient service of process, failure to state a claim upon which
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relief can be granted, and failure to join a necessary or indispensable party through a motion
filed before pleading (if a responsive pleading is allowed). FED. R. CIV. P. 12(b).
In state court, a motion to dismiss filed at or before the time of filing an answer will
result in a stay of discovery for 90 days or until the court rules on the motion. O.C.G.A. § 9-
11-12(i). No such stay occurs where a motion to dismiss is filed in federal court. However,
as a general rule, where a party files a motion to dismiss under Rule 12 in lieu of filing an
answer, the due date for the responsive pleading will be 14 days after receiving “notice” that
the court has denied the motion to dismiss or postponed disposition of the motion until trial.
FED. R. CIV. P. 12(a)(4)(A). Similarly, if the district court grants a motion for a more definite
statement, the responsive pleading must be served within 14 days after the more definite
statement is served. FED. R. CIV. P. 12(a)(4)(B).
One of the most significant differences in state and federal pleading requirements
deals with how and when other affirmative defenses must be raised. The Civil Practice Act
requires only, in the initial defensive pleading, that a party assert the affirmative defenses of
accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel,
failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment,
release, res judicata, statute of frauds, statute of limitations, and waiver. O.C.G.A. § 9-11-8(c).
Other defenses, whether affirmative defenses or otherwise, need not be asserted in a
defendant’s answer and can be raised for the first time in a motion for summary judgment or
other motion, or even at trial. Gerschick & Assocs., P.C. v. Pounds, 266 Ga. App. 852, 855 (1) (2006)
(“O.C.G.A. § 9-11-8(c) does not imply…that an affirmative defense can be raised only by answer
or it is forever waived.”); Hardy v. Ga. Baptist Health Care Sys., Inc., 239 Ga. App. 596, 597 (1999)
(“If it is not pleaded it is generally held that [an affirmative] defense is waived, but if it is raised
by motion, or by special plea in connection with the answer or by motion for summary judgment
there is no waiver.”); Walker v. Burke County, 149 Ga. App. 704 (1979) (permitting defendant to
raise affirmative defense of “emergency vehicle” for the first time at trial).
Indeed, the Court of Appeals has held that even the “affirmative defenses” listed in
O.C.G.A. § 9-11-8(c) may be asserted for the first time in a motion for summary judgment.
See Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 345-46 (2) (1970) (holding that
defense of accord and satisfaction could have been raised for first time in motion for
summary judgment). See also Roberts v. Farmer, 127 Ga. App. 237, 240-41 (5) (1972) (applying
same reasoning to permit defendant to raise O.C.G.A. § 9-11-8(c) affirmative defense of
failure of consideration through evidence presented at trial, where defense was not pled in
Defendant’s answer); Daniel & Daniel, Inc. v. Cosmopolitan Co., 146 Ga. App. 200, 201 (1) (1978)
(holding that although the O.C.G.A. § 9-11-8(c) defense of waiver is generally waived if not
pleaded, it can be raised by motion for summary judgment); Hardy, 239 Ga. App. at 596-97
(1) (holding that O.C.G.A. § 9-11-8(c) affirmative defense of res judicata could be raised for
first time via motion for summary judgment). O.C.G.A. § 9-11-8(c) also does not require
assertion of defenses to any degree in any subsequent defensive pleadings (if any are filed).
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In federal court, “[e]very defense to a claim for relief in any pleading must be asserted
in the responsive pleading if one is required.” FED. R. CIV. P. 12(b). To be clear, a party “must
affirmatively state any avoidance or affirmative defense” in responding to a pleading. FED.
R. CIV. P. 8(c)(1). Rule 8(c) contains a list of affirmative defenses that must be asserted in
responding to a pleading, but it is important to remember that list is not exhaustive and that
all affirmative defenses must be asserted in responding to a pleading (e.g., in an answer to a
complaint). Typically, failure to raise an affirmative defense in one’s answer or other
responsive pleading will result in waiver of the defense. See Edwards v. Fulton County, 509
Fed. Appx. 882, 887 (11th Cir. 2013); Am. Nat’l Bank of Jacksonville v. FDIC, 710 F.2d 1528, 1537
(11th Cir. 1983). But the Eleventh Circuit Court of Appeals has held that a defendant will be
permitted to assert an omitted defense later, sometimes even for the first time in a motion for
summary judgment, if the delay does not result in prejudice to the plaintiff. Edwards, 509
Fed. Appx. at 887; Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1350 (11th Cir. 2007); Sweet v.
Sec’y of Dep’t of Corrections, 467 F.3d 1311, 1321, n. 4 (11th Cir. 2006).
B. Asserting/Waiving the Right to Trial by Jury
The right to a trial by jury is more easily waived in federal court than in state court.
In federal court, a party must make a demand for jury trial within 14 days after service of the
last pleading directed to the issue on which jury trial is demanded. FED. R. CIV. P. 38(b), (d).
In state court, by contrast, a party is entitled to a jury trial unless the parties stipulate
otherwise in writing or in open court and on the record. O.C.G.A. § 9-11-39(a). The Georgia
Court of Appeals has held that a party only impliedly waives the right to a jury trial by
“voluntary participation in a non-jury trial.” Howard v. Bank South, N.A., 209 Ga. App. 407,
410 (4) (1993); Matthews v. Matthews, 268 Ga. 863, 864 (2) (1998). A party may demand a jury
trial “at any time before the case is called for trial, or upon the call for trial.” Carleton v. State,
176 Ga. App. 399 (1985). See also Wise, Simpson, Aiken & Assocs., Inc. v. Rosser White Hobbs
Davidson McClellan Kelly, Inc., 146 Ga. App. 789, 795 (6) (1978); Camilla Cotton Oil Co. v. C. I.
T. Corp., 143 Ga. App. 840, 841-42 (2) (1977) (overruling trial court’s denial of defendant’s
request for jury trial made after commencement of plaintiff’s case at trial but prior to
conclusion of plaintiff’s case). But see Cole v. ACR/Atlanta Car Remarketing, Inc., 295 Ga. App.
510, 512-13 (2008) (holding that trial court did not err in finding that defendant had waived
right to jury trial because there was no transcript of hearing in which defendant was alleged
to have consented to case being specially-set for bench trial).
Indeed, the Georgia Court of Appeals has held that a party may withdraw an express
waiver of the right to a jury trial and demand a trial by jury after a mistrial. See Griggs v.
Fletcher, 294 Ga. App. 60, 62 (1) (2008). Of course, the better practice always would be to
demand a trial as early as possible, preferably with the filing of a party’s initial pleading, and
in any event, no later than the entry of a pretrial order.
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C. Filing Third-Party Complaints
The Civil Practice Act provides that third-party complaints may be filed in state court
without leave of court within 10 days after filing of the initial answer and otherwise require
leave of court. O.C.G.A. § 9-11-14(a). In federal court, the deadline for filing a third-party
complaint is 14 days after service of its original answer, after which time leave of court is
required. FED. R. CIV. P. 14(a)(1).
D. Amending Pleadings
In state court, parties may amend their pleadings as a matter of course, without leave
of court, any time before entry of a pretrial order. O.C.G.A. § 9-11-15(a). No response is
required to an amended pleading unless ordered by the court. Id. In federal court, a party
generally may amend his pleading once, either within 21 days after service of the initial
pleading or within 21 days after the earlier of service of the responsive pleading or service of
a motion to dismiss, motion for more definite statement, or motion to strike. FED. R. CIV. P.
15(a)(1). Otherwise, a party may amend its pleading only with written consent from the
opposing party or leave of court, the latter of which should be freely given when justice
requires. FED. R. CIV. P. 15(a)(2). Reasons that will justify a court’s denial of leave to amend
pleadings include “undue delay, bad faith, dilatory motive on the part of the movant, undue
prejudice to the opposing party by virtue of allowance of the amendment, and futility of the
amendment.” Geary v. City of Snellville, 205 Fed. Appx. 761, 763 (11th Cir. 2006); Laurie v. Ala.
Ct. of Crim. App., 256 F.3d 1266, 1274 (11th Cir. 2001). A proposed amendment will be deemed
to be futile and will not be permitted if it would not withstand a motion to dismiss. Geary,
205 Fed. Appx. at 763; Harris v. Ivax Corp., 182 F.3d 799, 807-08 (11th Cir. 1999). Unless the
court orders otherwise, any required response to an amended pleading must be made within
remaining time to respond to the original pleading or within 14 days after service of the
amended pleading, whichever is later. FED. R. CIV. P. 15(a)(3).
E. Special Pleading and Formatting Requirements
Federal court also includes some pleading requirements that do not exist in state court
and, thus, can serve as traps for the unwary. For example, in federal court, any
nongovernmental corporate party must file a disclosure statement that either identifies any
parent corporation and any publicly-held corporation owning ten percent or more of its stock
or states that there is no such corporation. FED. R. CIV. P. 7.1(a). The statement must be filed
at the time of a party’s first appearance, pleading, petition, motion, response, or other request
to the court, and “prompt” supplementation of the disclosure statement is required if any of
the required information changes. FED. R. CIV. P. 7.1(b). In the Northern District of Georgia,
parties also are required to file a “certificate of interested parties” consisting of (i) “[a]
complete list of other persons, associations, firms, partnerships, or corporations having either
a financial interest in or other interest which could be substantially affected by the outcome
of th[e] particular case; and (ii) “[a] complete list of each person serving as a lawyer in th[e]
proceeding.” N.D. Ga. L.R. 3.3(A).
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Also in the Northern District in particular, there are stringent formatting requirements
which must be complied with regarding margins, font size and type, page numbering,
citations, and other matters. See N.D. Ga. L.R. 5.1(C).
The Southern District’s local rules impose pleading requirements for “special
pleadings,” which are defined as those alleging violations of the federal Truth-in-Lending
Act, Regulation Z, RICO, or other similar federal or state statutes. S.D. Ga. L.R. 9.1. Any
pleading alleging such a violation must “specifically state each alleged violation” or else it
will be dismissed without prejudice by the court upon motion by any party. Id. The party
alleging the violation will have 14 days from the date of the order of dismissal to amend his
pleading or to respond in writing to the motion. Id. In any action in which a RICO claim is
asserted, the party asserting the RICO claim must, upon filing or within 14 days of removal
or transfer, file a “RICO statement” summarizing the basis of the claim. Id.
The Civil Practice Act does contain some requirements that do not exist in the Federal
Rules. For example, in state court, venue is a very important consideration, and facts on
which venue depends must be alleged in the Complaint. O.C.G.A. § 9-11-8(a)(2).
In federal court more so than in state court, it is fairly typical for the judge to issue a
lengthy order at the beginning of a case governing the conduct of the parties and counsel and
various procedures during the litigation. In some instances, this is accomplished through a
“standing order” issued in every case. In the Northern District of Georgia, many of the
judges’ standing orders regarding conduct and court procedures typically can be found here:
http://www.gand.uscourts.gov/bar/. In the Middle District, see the “Standards of
Conduct” contained in pages ii through viii at the beginning of the Local Rules, which can be
found here: http://www.gamd.uscourts.gov/sites/gamd/files/GAMD_local_rules.pdf.
While less common than in federal court, some state and superior court judges will also issue
standing orders governing procedures in cases before the court. Just as in federal court, these
must be carefully read and complied with.
II. Scheduling and Discovery Procedures
A. Initial Disclosures and Scheduling Requirements
Some of the most notable differences between practicing in state or superior court and
federal court in Georgia appear in the areas of scheduling and discovery. In particular, the
Federal Rules impose significant additional requirements on litigants as far as what must be
disclosed—regardless of whether it has been requested by another party—and when such
information must be disclosed.
The Federal Rules require the parties in most types of civil cases to make certain
“initial disclosures” even without being served with any written discovery requests. The
information and documents that must be provided in these initial disclosures include:
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The name and, if known, the address and telephone number of each individual
likely to have discoverable information that the disclosing party may use to
support its claims or defenses, and the subjects of that information, unless the use
would be solely for impeachment;
A copy, or a description by category and location, of all documents, electronically-
stored information, and tangible things that the disclosing party has in its
possession, custody, or control and may use to support its claims or defenses,
unless the use would be solely for impeachment;
A computation of each category of damages claimed by the disclosing party, and
a copy (or the right to inspect and copy) all documents or other evidentiary
material, unless privileged or protected from disclosure, on which each
computation is based, including materials bearing on the nature and extent of
injuries suffered; and
A copy of (or the right to inspect and copy) any insurance agreement under which
an insurance business may be liable to satisfy all or part of a possible judgment in
the action or to indemnify or reimburse for payments made to satisfy the
judgment.
FED. R. CIV. P. 26(a)(1)(A).
Generally, a party must serve its initial disclosures within 14 days after the parties’
Rule 26(f) initial planning conference, as outlined below, unless the parties stipulate or the
court orders otherwise. FED. R. CIV. P. 26(a)(1)(C). Any party first served or joined to the
action after the Rule 26(f) conference must make its initial disclosures within 30 days after
being served or joined. FED. R. CIV. P. 26(a)(1)(D). In the Northern District of Georgia, initial
disclosures must be made within 30 days after appearance of a defendant by answer or
motion. N.D. Ga. L.R. 26.1(A). There is a special form which parties are required to use for
initial disclosures in the Northern District. N.D. Ga. L.R. 26.1, Appx. B, Form I.
Importantly, failure to provide information or to disclose a witness in a party’s initial
disclosures will result in exclusion of that information or witness on a motion, at a hearing,
or at trial, unless the failure was “substantially justified or is harmless.” FED. R. CIV. P.
37(c)(1). In addition or in the alternative to that sanction, the court may order payment of
attorney’s fees and other reasonable expenses caused by the failure to disclose, inform the
jury of the party’s failure, direct that certain facts be taken as established for purposes of the
action, prohibit the disobedient party from supporting or opposing designated claims or
defenses or from introducing designated matters in evidence, strike pleadings in whole or in
part, stay further proceedings until the matter is resolved, and/or dismiss the action or
proceeding in whole or in part. Id.
B. Initial Planning Conference (Federal Court)
The Federal Rules also require an initial “planning” conference and related report,
neither of which is required under the Civil Practice Act. The conference must include every
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party in the case (either personally or through counsel) and must be held “as soon as
practicable” and, in any event, no later than 21 days before a scheduling conference is set to
be held or the scheduling order is due under Rule 16(b). FED. R. CIV. P. 26(f)(1). In the
Northern District of Georgia, the Rule 26(f) conference must be held within 16 days after
appearance of a defendant by answer or motion. N.D. Ga. L.R. 16.1. In the Southern District,
the conference must be held by the earlier of 21 days after filing of the last answer of the
defendants named in the original complaint or 45 days after the first appearance of a
defendant by answer or Rule 12 motion. S.D. Ga. L.R. 26.1(a).
During the Rule 26(f) conference, “the parties must consider the nature and basis of
their claims and defenses and the possibilities for promptly settling or resolving the case;
make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about
preserving discoverable information; and develop a proposed discovery plan.” FED. R. CIV.
P. 26(f)(2). The conference may take place by phone unless the court orders the parties or
their attorney to confer in person. Id.
The parties’ discovery plan is due 14 days after the Rule 26(f) conference and must
state “the parties’ views and proposals” on the following matters: (i) any changes to be made
to the timing, form, or requirement of the parties’ initial disclosures, as well as a statement of
when the parties’ disclosures will be made; (ii) the subjects on which discovery will be
needed, the proposed deadline for discovery, and whether discovery should be conducted in
phases or limited in scope in some way; (iii) any issues regarding disclosure or discovery of
electronically-stored information, including the form of production thereof; (iv) issues
pertaining to claims of privilege or protection of trial preparation materials; (v) any other
limitations that should be imposed on discovery in the case; and (vi) any protective orders
under Rule 26(c), scheduling orders under Rule 16(b), or pretrial orders under Rule 16(c) that
the parties believe should be issued in the case. FED. R. CIV. P. 26(f)(3). In both the Northern
and Southern Districts of Georgia, there is a specific form which must be used. N.D. Ga. L.R.
16.2, Appx. B; S.D Ga. L.R. 26.1(b), Appx. of Forms. In the Northern District, the initial
discovery plan must be filed within 30 days after appearance of the first defendant by answer
or motion or 30 days after removal. N.D. Ga. L.R. 16.2, Appx. B. The district court may award
attorney’s fees and other reasonable expenses due to the failure of any party or its attorney
to participate in good faith in developing and submitting a proposed discovery plan. FED. R.
CIV. P. 37(f).
C. Scheduling Orders and Sanctions for Noncompliance
The Civil Practice Act does not specifically provide for the issuance of scheduling
orders, though an increasing number of state and superior courts have begun issuing
scheduling orders as a matter of course or in more complex cases. Federal district courts, by
contrast, are required to issue a scheduling order “as soon as practicable,” but in any event
no later than 120 days after any defendant has been served with the complaint or 90 days
after any defendant has appeared, whichever is earlier. FED. R. CIV. P. 16(b). The district
court’s scheduling order must provide deadlines for joining other parties, amending
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pleadings, completing discovery, and filing motions. FED. R. CIV. P. 16(b)(3). The scheduling
order may also modify the timing of disclosures under Rules 26(a) and 26(e)(1), modify the
extent of discovery, provide for disclosure or discovery of electronically-stored information,
include any agreements reached by the parties regarding assertion of claims of privilege or
protection as trial-preparation material after information is produced, set dates for pretrial
conferences and for trial, and “include other appropriate matters.” FED. R. CIV. P. 16(b)(3)(B).
Once it has been issued, a scheduling order may be modified only for “good cause” and with
the judge’s consent. FED. R. CIV. P. 16(b)(4).
The Federal Rules permit the imposition of Rule 37(b)(2)(A)(ii)–(vii) sanctions for
failure to comply with the court’s scheduling order. FED. R. CIV. P. 16(f)(1)(C). See also, e.g.,
Hill v. Ford Motor Co., 2014 U.S. Dist. LEXIS 30360 (N.D. Ga. Mar. 10, 2014) (denying
defendant’s motion to strike plaintiffs’ late-identified experts but sanctioning plaintiffs by
ordering them to pay all fees incurred by defendant in filing motion to strike and motion for
summary judgment due to plaintiff’s untimely expert identification). Moreover, the Federal
Rules specifically provide that “[i]f a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” FED. R. CIV. P. 37(c)(1).
By contrast, in state court, while other sanctions may be appropriately imposed,
“[e]xclusion of probative trial evidence is not an appropriate remedy for curing an alleged
discovery admission.” Hunter v. Nissan Motor Co. of Japan, 229 Ga. App. 729, 729-30 (1) (1997)
(en banc). See also Hart v. Northside Hosp., Inc., 291 Ga. App. 208, 209-10 (1) (2008); Thakkar v.
St. Ives Country Club, 250 Ga. App. 893 (1)(a) (2001). Rather, the “only appropriate remedy”
for a party’s alleged failure to disclose relevant information in discovery, including regarding
potential expert witnesses, is postponement of trial or a mistrial. Hunter, 229 Ga. App. at 730
(1); Hart, 291 Ga. App. at 210 (1). “[A] motion to strike is never an appropriate tool for
excluding probative evidence during a civil jury trial.” Hunter, 229 Ga. App. at 729-30 (1),
citing Sharpe v. Dept. of Transp., 267 Ga. 267, 270 (2) (1996). An exception exists where a party
fails to comply with a specific deadline for identification of experts that is set in a scheduling
order. See Section II.H.3., infra.
D. Written Discovery
There are substantial differences between state and federal court in the discovery
process, both in terms of deadlines and the substantive requirements imposed on parties.
One of the most elementary differences is in the length and timing of the discovery period
itself. In state court, the discovery period generally begins upon filing of a defendant’s
answer and lasts for six months, although the court has discretion to shorten, extend, or
reopen the discovery period. GA. UNIF. SUPER. CT. R. 5.1.
In federal court, by contrast, the discovery period typically does not begin until after
the Rule 26(f) conference or, in the Northern District of Georgia, 30 days after appearance of
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the first defendant by answer. FED. R. CIV. P. 26(d)(1); N.D. Ga. L.R. 26.2(A). Notably, this
eliminates the fairly annoying state-court practice of discovery requests being served with
the complaint in order to shorten the time for response. See O.C.G.A. §§ 9-11-33(a)(2), 9-11-
34(b)(2), 9-11-36(a)(2). The deadline for discovery will be set in the scheduling order entered
by the court after filing of the parties’ discovery plan. See FED. R. CIV. P. 26(f)(3)(B). In the
Northern District, cases will be assigned a different length of discovery period depending on
the type of case, most typically four or eight months, although the parties may request more
time. N.D. Ga. L.R. 26(A), (B). In the Southern District, unless the court provides otherwise
in its scheduling order, all written discovery must be served and all depositions must be
completed within 140 days after filing of the last answer of the defendants named in the
original complaint. S.D. Ga. L.R. 26.1(d)(i).
A request for extension of discovery made at or near the expiration of the discovery
period in federal court often will meet with resistance. See N.D. Ga. L.R. 26.2(B); S.D. Ga.
L.R. 26.2. In the Southern District, any motion to extend the discovery period must be
accompanied by a proposed, modified scheduling order. S.D. Ga. L.R. 26.2.
The federal courts have more stringent requirements on how much written discovery
may be served on a party. In state court, the only real limit on the amount of written
discovery that may be served, absent some more specific court order in a particular case, is
that no party may serve more than 50 interrogatories, including subparts, on any other party
without leave of court. O.C.G.A. § 9-11-33(a)(1). The Federal Rules limit a party to serving
no more than 25 interrogatories, including discrete subparts, on any other party without
leave of court. FED. R. CIV. P. 26(a)(1). In the Middle District of Georgia, there are specific
interrogatories to which any plaintiff asserting a RICO claim must respond as a matter of
course. M.D. Ga. L.R. 33.
In the Middle District, parties are limited to serving 10 requests for production of
documents and things to any party without prior permission of the court. M.D. Ga. L.R. 34.
The Federal Rules specifically describe the way in which responsive documents or
electronically-stored information must be produced in all federal courts. Specifically, unless
otherwise stipulated or ordered by the court, parties are required to produce documents “as
they are kept in the usual course of business or must organize and label them to correspond
to the categories in the request.” FED. R. CIV. P. 34(b)(2)(E)(i). Electronically-stored
information must be produced either in the form specified in the request for production or
“in a form or forms in which it is ordinarily maintained or in a reasonably usable form or
forms.” FED. R. CIV. P. 34(b)(2)(E)(ii). However, Rule 34 also specifies that a party is not
required to produce the same electronically-stored information in more than one form. FED.
R. CIV. P. 34(b)(2)(E)(iii).
The Federal Rules also specifically provide a clear, concise standard for potential
spoliation claims involving electronically-stored information: “Absent exceptional
circumstances, a court may not impose sanctions under these rules on a party for failing to
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provide electronically stored information lost as a result of the routine, good-faith operation
of an electronic information system.” FED. R. CIV. P. 37(e).
The mechanism by which a party may request production of documents from
nonparties differs between state/superior court and federal court. In state and superior
court, parties may request production of documents from a nonparty in the same manner as
from a party. See O.C.G.A. § 9-11-34(c). In federal court, by contrast, document requests may
only be made of a nonparty by subpoena. See FED. R. CIV. P. 34(c), 45.
In the Southern District of Georgia, a party may only serve 25 requests for admission,
including discrete subparts, without leave of court or consent of the responding party. S.D.
Ga. L.R. 36. No more than 15 requests for admission to each party are permitted without
court permission in the Middle District. M.D. Ga. L.R. 36.
The duty to supplement written discovery responses and disclosures is much broader
in federal court than in state court. In state court, there generally is no duty to supplement
prior discovery responses to include information acquired after the responses are served.
O.C.G.A. § 9-11-26(e)(3). A duty to supplement does exist as to: (1) any question directly
address to the identity or location of persons with knowledge of discoverable matters; (2)
expert witnesses who will be called at trial; and (3) any situation in which later-obtained
information reveals that the earlier response was incorrect when made, or that although the
response was correct when made, it is no longer true and “the circumstances are such that a
failure to amend the response is, in substance, a knowing concealment.” Id. A party also can
demand supplementation of prior responses at any time prior to trial. Id.
In federal court, on the other hand, a party must supplement or correct any statement
made in a disclosure or a discovery response “in a timely manner” either if ordered by the
court or upon learning that the disclosure or response is incomplete or incorrect “in some
material respect” if the additional/correct information has not otherwise been provided to
other parties during discovery or in writing. FED. R. CIV. P. 26(e)(1).
E. Deposition Practice
Although deposition practice is largely the same between Georgia state and federal
courts, there are some notable differences of which to be aware. As an initial matter, conduct
of parties and their attorneys in depositions tends to be governed more strictly in federal
court than in the state and superior courts. See, e.g., Carlson v. Bosem, 2007 U.S. App. LEXIS
15925 (11th Cir. June 28, 2007) (affirming district court’s award of nearly $14,000.00 in fees and
costs as appropriate sanction under FED. R. CIV. P. 37(b)(2) against defendant who caused
premature termination of his deposition through mistreatment of court reporter, even though
district court did not find that defendant acted in bad faith); Horton v. Maersk Line, Ltd., 294
F.R.D. 690 (S.D. Ga. Sep. 9, 2013) (imposing sanctions against plaintiff’s counsel and
prohibiting plaintiff from using a deposition as evidence due to plaintiff’s counsel’s bullying,
“accusatory questions and caustic comments,” and other misconduct that “unquestionably
frustrated the fair examination” of the witness being deposed). In particular, while it is
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largely understood that “speaking objections” during depositions are unprofessional and
improper, as a practical matter such objections are more likely to be punished in Georgia
federal courts than in state courts. See, e.g., Parker v. Brush Wellman Inc., 2010 U.S. Dist. LEXIS
88355, *27, n. 5 (N.D. Ga. Aug. 25, 2010) (Story, J.) (cautioning counsel against “inappropriate
speaking objections” as “unprofessional behavior” at the risk of sanctions). See also M.D. Ga.
L.R., Standards of Conduct, ¶¶ B.5.h., B.5.j. (“While a question is pending, a lawyer should
not, through objections or otherwise, coach the deponent or suggest answers. … A lawyer
should refrain from self-serving speeches during depositions.”).1
In federal court, any party must obtain leave of court to take more than ten depositions
either by the plaintiffs, defendants, or third-party defendants in any case or to take the
deposition of the same person more than once. FED. R. CIV. P. 30(a)(2)(A).
Another key difference exists in the context of how and when a deposition may be
used as evidence. In federal court, a deposition of any person may be used for any purpose
if the witness is dead or cannot attend or testify due to age, illness, infirmity, or
imprisonment; the witness is more than 100 miles from the place of hearing or trial or outside
the U.S. (unless the witness’s absence was procured by the party offering the deposition); the
party offering the deposition could not procure the witness’s attendance by subpoena; or on
motion and notice, the court finds that “exceptional circumstances make it desirable—in the
interest of justice and with due regard to the importance of live testimony in open court—to
permit the deposition to be used.” FED. R. CIV. P. 32(a)(4).
The requirements for use of a deposition for any purpose in state court are similar in
some respects but there are some significant differences. First, the deposition of a party or
witness may be used in state court if the court finds that the witness is outside the county,
rather than more than 100 miles away. O.C.G.A. § 9-11-32(a)(3)(B). Second, the Civil Practice
Act provides for the use of a deposition of a witness where “because of the nature of the
business or occupation of the witness it is not possible to secure his personal attendance
without manifest inconvenience to the public or third persons.” O.C.G.A. § 9-11-32(a)(3)(E).
This provision is often used to present the testimony of treating physicians or other medical
professionals at trial. See, e.g., Pembrook Mgmt., Inc. v. Cossaboon, 157 Ga. App. 675, 676 (2)
(1981). The deposition of a party or witness also may be used if the party or witness is a
member of the General Assembly and that body will be in session during the trial. O.C.G.A.
1 As part of the preamble to its Local Rules, the Middle District of Georgia has set forth certain “Standards of Conduct” governing the manner in which every lawyer should conduct himself or herself in any litigated matter. See M.D. Ga. L.R., Standards of Conduct, pp. ii-viii (available at http://www.gamd.uscourts.gov/sites/gamd/files/GAMD_local_rules.pdf). These Standards of Conduct touch on numerous aspects of daily litigation practice and should be reviewed and followed, as a matter of professionalism, by all attorneys practicing within or outside the Middle District. Frankly, the practice of law would be much improved and clients’ interests would be best served if all attorneys followed these Standards of Conduct.
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§ 9-11-32(a)(3)(F). Lastly, O.C.G.A. § 9-11-32 provides a “catch-all” provision similar to the
one in Federal Rule 32 but perhaps somewhat broader: “The deposition of a witness, whether
or not a party, taken upon oral examination, may be used in the discretion of the trial judge,
even though the witness is available to testify in person at the trial.” O.C.G.A. § 9-11-32(a)(4)
(emphasis supplied). If the court permits use of a deposition at trial under that provision, a
party will thereafter be permitted to present that witness’s oral testimony in open court. Id.
As a practice point, it should be noticed that it tends to be more difficult to obtain
extensions of the discovery period in federal court than in many state courts. This is not
always true, however, as many state and superior court judges have begun using federal
court-style scheduling orders in some or all of their cases, and those judges often are less
willing to grant discovery extensions once such an order has been entered. At the very least,
while it is never wise to assume that a court will grant a discovery extension in any case, this
is particularly true in federal court and those state courts where scheduling orders are used.
F. Post-Discovery Conference (Northern District of Georgia)
In the Northern District of Georgia, parties also are required to participate in a post-
discovery conference no later than 14 days after the close of discovery. N.D. Ga. L.R. 16.3.
The post-discovery conference must be done in person and must include lead counsel and a
person possessing settlement authority for each party. Id.
G. Objections Based on Asserted Privilege or “Work Product” Grounds
The basic rule on asserting an objection to an interrogatory or request for production
as seeking protected “work product” is the same in Georgia state and federal courts. That is,
a party may only obtain work product through discovery after showing a “substantial need”
for the materials and that “he is unable without undue hardship to obtain the substantial
equivalent of the materials by other means.” O.C.G.A. § 9-11-26(b)(3); FED. R. CIV. P.
26(b)(3)(A). And even if a court does order production of such “work product” after the
required showing has been made, the court must “protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or other representative of
a party concerning the litigation.” Id. Work product includes “documents and tangible
things...prepared in anticipation of litigation or for trial by or for another party or by or for
that other party’s representative (including his attorney, consultant, surety, indemnitor,
insurer, or agent) only.” Id.
The Federal Rules now impose much more exacting requirements for a party
withholding information or documents under a claim of privilege or work-product
protection. Under the current version of Federal Rule 26, “[w]hen a party withholds
information otherwise discoverable by claiming that the information is privileged or subject
to protection as trial-preparation material, the party must: (i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced
or disclosed—and do so in a manner that, without revealing information itself privileged or
protected, will enable other parties to assess the claim.” FED. R. CIV. P. 26(b)(5)(A). Though
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parties may seek to impose a similarly specific requirement in state court, there is no similar
requirement under the Civil Practice Act.
Recent amendments to the Federal Rules also have incorporated robust protection of
work-product material that is nevertheless produced:
If information produced in discovery is subject to a claim of privilege or of
protection as trial-preparation material, the party making the claim may notify
any party that received the information of the claim and the basis for it. After
being notified, a party must promptly return, sequester, or destroy the
specified information and any copies it has; must not use or disclose the
information until the claim is resolved; must take reasonable steps to retrieve
the information if the party disclosed it before being notified; and may
promptly present the information to the court under seal for a determination
of the claim. The producing party must preserve the information until the
claim is resolved.
FED. R. CIV. P. 26(b)(5)(B). The Civil Practice Act contains no similar provision.
H. Expert Witnesses—Disclosure and Challenges to Testimony
1. Discovery and Disclosure of Information Regarding Experts
In state court, a party may use interrogatories, requests for production of documents,
and depositions to discover facts known and opinions held by other parties’ experts who will
testify at trial. O.C.G.A. § 9-11-26(b)(4). In particular, a party may use interrogatories to
require another party “to identify each person whom the other party expects to call as an
expert witness at trial, to state the subject matter on which the expert is expected to testify,
and to state the substance of the facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion.” O.C.G.A. § 9-11-26(b)(4)(A)(i). Requests
for production may be used to obtain documents from another party’s expert, although the
requesting party must pay a reasonable fee for the time spent in responding to such requests.
O.C.G.A. § 9-11-26(b)(4)(A)(ii).
In federal court, without the necessity of a discovery request by an opposing party, a
party is required to disclose the identity of any expert witness it may use at trial. FED. R. CIV.
P. 26(a)(2)(A). Unless otherwise stipulated or ordered by the court, if a party’s expert witness
is one retained or specially employed to provide expert testimony in the case or one whose
duties as the party’s employee regularly involve giving expert testimony, disclosure of the
expert must be accompanied by a written report prepared and signed by the expert. FED. R.
CIV. P. 26(a)(2)(B). The report must contain (i) a complete statement of all opinions the
witness will express and the basis and reasons for them; (ii) the facts or data considered by
the witness in forming his/her opinions; (iii) any exhibits that will be used to summarize or
support his/her opinions; (iv) the witness’s qualifications, including a list of all publications
authored in the previous ten years; (v) a list of all other cases in which, during the previous
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four years, the witness testified as an expert at trial or by deposition; and (vi) a statement of
the compensation to be paid for the study and testimony in the case. Id. For any witness not
required to provide a report, the expert disclosure must state (i) the subject matter on which
the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705;
and (ii) a summary of the facts and opinions to which the witness is expected to testify. FED.
R. CIV. P. 26(a)(2)(C).
As a general rule, unless provided otherwise by the court, a party’s expert disclosures
must be made at least 90 days before the date set for trial or for the case to be ready for trial.
FED. R. CIV. P. 26(a)(2)(D)(i). Disclosure of an expert whose testimony is intended solely to
contradict or rebut evidence on the same subject matter identified by another party in an
expert disclosure must be made within 30 days after the other party’s disclosure. FED. R. CIV.
P. 26(a)(2)(D)(ii).
In the Southern District of Georgia, the plaintiff must provide expert disclosures and
reports within 60 days after the Rule 26(f) conference (or, if no Rule 26(f) conference is
required, then within 60 days after filing of the last answer of the defendants named in the
original complaint). S.D. Ga. L.R. 26.1(d)(ii). The defendant must provide expert disclosures
and reports within 90 days after the Rule 26(f) conference or 60 days after filing his answer,
whichever is later. S.D. Ga. L.R. 26.1(d)(iii).
Disclosure of rebuttal expert witnesses must be made by the deadline set in the court’s
scheduling order or otherwise within 30 days after the opposing party discloses its own
experts. Fed. R. Civ. P. 26(a)(2)(C); A & J Mfg., LLC v. Kingsford Prods., LLC, 2010 U.S. Dist.
LEXIS 47401, *3-5 (S.D. Ga. May 13, 2010); McGarity v. FM Carriers, Inc., 2012 U.S. Dist. LEXIS
41356, *27 (S.D. Ga. Mar. 26, 2012).
As outlined above, the Civil Practice Act includes a general requirement to
supplement prior discovery responses to include later-acquired information as to expert
witnesses who will be called at trial. O.C.G.A. § 9-11-26(e)(3). However, the nature of the
supplementation that is required is relatively basic: the identity of each person expected to
be called as an expert witness at trial, the subject matter on which he is expected to testify,
and the substance of his testimony. Id. The duty to supplement with regard to experts is
more specific in federal court. Under Federal Rule 26(e), “[f]or an expert whose report must
be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends both to
information included in the report and to information given during the expert’s deposition,”
and any additions or changes to the foregoing information must be disclosed no later than
the due date for the party’s pretrial disclosures. FED. R. CIV. P. 26(e)(2). Notably, however, a
party cannot be required to produce drafts of any expert report other than the final version.
Fed. R. Civ. P. 26(b)(4)(B).
2. Admissibility and Exclusion of Expert Testimony on Substantive Grounds
The standards by which expert witnesses are evaluated (and potentially excluded
from testifying) are now quite similar in Georgia state courts and federal courts. In both state
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and federal court, a witness may testify as an expert if: (i) the witness “is qualified as an
expert by knowledge, skill, experience, training, or education”; (ii) the expert’s “scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue”; (iii) the expert’s testimony is “based on sufficient
facts or data”; (iv) the expert’s testimony “is the product of reliable principles and methods”;
and (v) the expert “has applied the principles and methods reliably to the facts of the case
which have been or will be admitted into evidence before the trier of fact.” FED. R. EVID. 702;
O.C.G.A. § 24-7-702(b) (formerly O.C.G.A. § 24-9-67.1(b)).
Although O.C.G.A. § 24-7-702(b) now is essentially identical to Rule 702 of the Federal
Rules of Evidence, the change is relatively recent, the new statute having been enacted in
2005. For that reason and due to the simple fact that Federal Rule 702 applies to far greater
geographical area than does O.C.G.A. § 24-7-702(b), the body of case law interpreting and
applying the federal provision is far more significant than that applying O.C.G.A. § 24-7-
702(b). Helpfully, the Georgia General Assembly specifically provided for consideration and
application of existing federal authority on the admissibility of expert testimony in Georgia
state and superior courts:
It is the intent of the legislature that, in all civil cases, the courts of the State of
Georgia not be viewed as open to expert evidence that would not be admissible
in other states. Therefore, in interpreting and applying this Code section, the
courts of this state may draw from the opinions of the United States Supreme
Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General
Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526
U.S. 137 (1999); and other cases in federal courts applying the standards
announced by the United States Supreme Court in these cases.
O.C.G.A. § 24-7-702(f).
Thus, in both federal and state court, the trial court must decide if the expert has
followed a reliable method and properly applied the method to the facts of the case. Kumho
Tire, 256 U.S. at 156. Stated extremely briefly, the trial judge has “the task of ensuring that an
expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.”
Daubert, 509 U.S. at 597. The trial court cannot simply take the expert’s word that his
methodology is reliable, nor can the Court simply rely upon the ipse dixit (“because I said so”)
of the expert. McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1244 (11th Cir. 2005). See also
HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641 (2010); Brady v. Elevator Specialists, Inc., 287 Ga.
App. 304 (2007). The expert’s testimony also must be helpful to the finder of fact, meaning
that it must be “relevant to the task at hand” and sufficiently tied to the facts of the case so
that it will aid the jury in resolving a factual dispute. Daubert, 509 U.S. at 591, 597. Expert
testimony also generally is not permitted where the topic or subject on which the expert will
testify is within the ken of the layman. See, e.g., Ga. Real Estate Appraisers Bd. v. Krouse, 299
Ga. App. 73, 76-77 (2009); Giannotti v. Beleza Hair Salon, Inc., 296 Ga. App. 636, 641 (2) (2009);
McGarity v. Hart Elec. Mbrship. Corp., 307 Ga. App. 739, 746 (2011).
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One area in which O.C.G.A. § 24-7-702 differs substantially from its federal
counterpart is in medical malpractice actions. O.C.G.A. § 24-7-702(c) contains several
objective criteria on which the admissibility of an expert’s testimony must be judged in the
medical malpractice context. But in Georgia federal courts, it appears that the more stringent
requirements of O.C.G.A. § 24-7-702(c) will be applied in medical malpractice actions brought
in federal court based on diversity jurisdiction. Rule 601 of the Federal Rules of Evidence
provides that “in civil actions and proceedings, with respect to an element of a claim or
defense as to which State law supplies the rule of decision, the competency of a witness shall
be determined in accordance with State law.” The Eleventh Circuit Court of Appeals has
applied Rule 601 to mean that Georgia law regarding the competency of medical experts will
apply to medical malpractice actions in federal district courts that arise under Georgia law.
See McDowell v. Brown, 392 F.3d 1283, 1295-96 (11th Cir. 2004).
The time for moving to exclude some or all of an expert’s opinions on substantive
grounds varies between Georgia state courts and federal courts. In state court, “the court
may hold a pretrial hearing to determine whether the witness qualifies as an expert and
whether the expert’s testimony satisfies the requirements” of O.C.G.A. § 24-7-702, but only
after a motion is filed by one of the parties, and the hearing must be completed no later than
the final pretrial conference. O.C.G.A. § 24-7-702(d). The Supreme Court of Georgia has
enforced the deadline in O.C.G.A. § 24-7-702(d) for holding any such hearings by the pretrial
conference. See, e.g., Ford Motor Co. v. Gibson, 283 Ga. 398, 404 (2008); Bailey v. Edmondson,
280 Ga. 528, 533 (2006). Where a party reserves objections to an expert’s testimony during
his deposition, however, the court may consider those objections (and exclude some or all of
the expert’s deposition testimony) at the time of trial. Hawkins v. OB-GYN Assocs., P.A., 290
Ga. App. 892, 895 (2008).
In federal court, the deadline for filing a Daubert motion is set by local rule or by the
scheduling order entered in each particular case. In the Northern District of Georgia, such
motions must be filed no later than the date the parties’ pretrial order is submitted or they
will be deemed to have been waived. N.D. Ga. L.R. 26.2(C). The Southern District’s local
rules do not provide a specific deadline for Daubert motions, making them due, by default,
no later than 30 days after the close of discovery. S.D. Ga. L.R. 7.4. In the Middle District, it
appears that the due date for such motions must be set by scheduling order.
One way in which the trial court’s consideration of whether to exclude expert
testimony differs between state court and federal court is that in state court, there is no
explicit requirement in O.C.G.A. § 24-7-701 that the trial judge make specific findings of fact
or conclusions of law, and the Georgia Court of Appeals has held that it will be presumed
that the trial court properly performed its “gatekeeper” role under O.C.G.A. § 24-7-702
regardless of whether any such explicit findings are made. See CSX Transp., Inc. v. McDowell,
294 Ga. App. 871, 873 (2008). That is in stark contrast to federal court, where at least some
courts have held that without explicit findings of fact, the trial court will be deemed to have
abused its discretion in admitting the proffered expert testimony since meaningful appellate
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review would be impossible under those circumstances. See, e.g., Dodge v. Cotter Corp., 328
F. 3d 1212, 1223 (10th Cir. 2003).
3. Exclusion of Expert Testimony for Untimely Disclosure
In federal court, failure to timely identify an expert witness or to provide the
appropriate expert disclosures can lead to exclusion of the expert’s testimony. FED. R. CIV. P.
26(a), 37(c)(1). In accordance with those provisions of the Federal Rules, district courts have
broad discretion to exclude untimely-disclosed expert witness testimony. Chapman v. Procter
& Gamble Distrib., LLC, 766 F.3d 1296, 1315 (11th Cir. 2014); Bearint v. Dorell Juvenile Group, Inc.,
389 F.3d 1339, 1348-49 (11th Cir. 2004). The Eleventh Circuit Court of Appeals has employed
a three-factor test in determining whether an improperly disclosed witness may be excluded
by a district court: “(1) the importance of the testimony; (2) the reason for the appellant's
failure to disclose the witness earlier; and (3) the prejudice to the opposing party if the witness
had been allowed to testify.” Bruce v. Classic Carrier, Inc., 2014 U.S. Dist. LEXIS 38697, *26-27
(N.D. Ga. Mar. 24, 2014), quoting Bearint, 389 F.3d at 1353.
In addition to the first two factors of the Bearint tests, courts in the Northern District
of Georgia have sometimes considered the additional factors of (1) “the surprise to the party
against whom the evidence would be offered; (2) “the ability of that party to cure the
surprise”; and (3) “the extent to which allowing the evidence would disrupt the trial.” See,
e.g., Cambridge Univ. Press v. Becker, 2010 U.S. Dist. LEXIS 142236, *3 (N.D. Ga. Sep. 21, 2010)
(Evans, J.). Other Northern District judges have declined to consider these additional factors
and have considered only the factors set forth in Bearint. See, e.g., Bruce, 2014 U.S. Dist. LEXIS
38697, *29 (Carnes, J.). Still other Northern District judges have interpreted Local Rule 26.2(C)
to mean that “the standard for striking untimely expert testimony is not whether the
opposing party is prejudiced, but whether the proffering party’s failure to comply was
justified.” See, e.g., Durkin v. Platz, 920 F. Supp. 2d 1316, 1328 (N.D. Ga. 2013) (Batten, J.);
Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1195 (N.D. Ga. 2005) (Duffey, J.).
One Northern District judge has expressed uncertainty as to whether a late disclosure that is
“harmless,” such that it would not satisfy the standard for exclusion under Federal Rule
37(c)(1), may nevertheless merit exclusion under Local Rule 26.2(C). See Vision Airlines, Inc.
v. SST Air, LLC, 2013 U.S. Dist. LEXIS 182838, *3, n. 1 (N.D. Ga. Feb. 27, 2013) (O’Kelley, J.).
By contrast, in Georgia’s state and superior courts, a continuance of trial is generally
the only permissible remedy for late identification of an expert witness or failure to provide
information pertaining to the expert’s opinions and qualifications as sought in discovery.
Kroger Co. v. Walters, 319 Ga. App. 52, 59-60 (2)(b) (2012); Hart v. Northside Hosp., Inc., 291 Ga.
App. 208, 209-10 (1) (2008); McEntyre v. McRae, 240 Ga. App. 148, 149 (1) (1999). Georgia’s
appellate courts long have held that exclusion of an expert witness’s testimony as a sanction
for a party’s noncompliance with discovery deadlines is reversible error, even where the
identifying party fails to provide any excuse whatsoever for his noncompliance. Id.
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In recent years, however, the Georgia Court of Appeals has created an exception to
that rule by holding that “a trial court may exercise its discretion and exclude testimony from
an expert not properly identified by a party, when done in violation of an express court
order.” Kohler v. Van Peteghem, 330 Ga. App. 230, 238-39 (3) (2014). See also Vaughan v.
WellStar Health Sys., Inc., 304 Ga. App. 596, 601-02 (2010); Collins v. Dickman, 295 Ga. App. 601,
603-604 (1) (2008); Hart, 291 Ga. App. at 210, n. 9. This includes the failure to comply with a
deadline in a scheduling order for identification of experts. See Kohler, 330 Ga. App. at 238-
39 (3); Collins, 295 Ga. App. at 602-03. Imposition of scheduling deadlines for identification
of experts and whether to admit or exclude expert testimony are within the trial court’s broad
discretion. Kohler, 330 Ga. App. at 238 (3); Vaughan, 304 Ga. App. at 601-02 (3); Caswell v.
Caswell, 285 Ga. 277, 280 (3) (2009).
Similarly, if a pretrial order is entered in a state or superior court action, the court will
have the discretion whether to permit or to disallow testimony from any expert not included
in the pretrial order. O.C.G.A. § 9-11-16(b). If the court does allow a late-disclosed expert to
testify under those circumstances, the opposing party must be given a “reasonable time” to
take the deposition of the expert before trial. O.C.G.A. § 9-11-16(b).
III. Motion Practice and Deadlines
Deadlines for filing motions can vary wildly in state and superior courts depending
on a number of factors, most important of which is whether the court has entered a case
management or scheduling order. Otherwise, a motion generally must be filed sufficiently
early that the time for response will elapse prior to trial. Motions for summary judgment, in
particular, must be filed “sufficiently early so as not to delay the trial,” and “no trial shall be
continued by reason of the delayed filing of a motion for summary judgment.” GA. UNIF.
SUPER. CT. R. 6.6.
Any response to a motion filed in superior court must be filed and served within 30
days after service of the motion. GA. UNIF. SUPER. CT. R. 6.2. In state court, a response must
be filed within 30 days after service of the motion or on the date of the hearing (if any),
whichever is sooner. GA. UNIF. STATE CT. R. 6.2.
In federal court, deadlines for filing motions may be set either by the court’s
scheduling order or by local rule. In the Northern District of Georgia, the following deadlines
apply for filing motions:
If a motion is pending upon removal to federal district court, the movant must
serve a memorandum in support of the motion within 14 days after removal, and
responses will be due within 14 days thereafter (or 21 days thereafter if a motion
for summary judgment). N.D. Ga. L.R. 7.2(A), 7.1(B).
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Motions to compel discovery typically must be filed prior to the close of discovery
or within 14 days after service of the disclosure or discovery response at issue.
N.D. Ga. L.R. 37.1(B).
Motions for summary judgment must be filed as soon as possible but no more than
30 days after close of discovery unless otherwise ordered by the court. N.D. Ga.
L.R. 56.1(D).
Motions for reconsideration, which “shall not be filed as a matter of routine
practice” and should only be filed when “absolutely necessary,” must be filed
within 28 days after the order or judgment to be reconsidered; responses must be
filed within 14 days after service of the motion. N.D. Ga. L.R. 7.2(E).
Daubert motions generally must be filed no later than the date the proposed
consolidated pretrial order is submitted. N.D. Ga. L.R. 26.2(C).
All other motions must be filed within 30 days after the beginning of discovery
absent prior leave of court. N.D. Ga. L.R. 7.1(A)(2).
In the Southern District of Georgia, motions to add or join a party under Federal Rules
19 through 22 or to amend the pleadings under Federal Rule 15 must be filed within 60 days
after the filing of an answer by a defendant. S.D. Ga. L.R. 16.3. All other motions, other than
motions in limine, must be filed no later than 30 days after the close of discovery. S.D. Ga.
L.R. 7.4. Motions in limine must be filed no later than five days before the pretrial conference,
“if practicable,” and otherwise may be filed up until the time of trial unless the court orders
otherwise. Id.
There are few specific deadlines for filing motions in the Middle District, meaning that
most motion deadlines will be set in the court’s scheduling order in each individual case or
by default under the Federal Rules. The timing for filing and responding motions for
reconsideration, as well as the admonition against filing them as a matter of course, are
identical in the Middle District to those outlined above for the Northern District. M.D. Ga.
L.R. 7.6. Briefs in support of and in response to motions for reconsideration are limited to
five pages in the Middle District, however, and no reply briefs are permitted on such motions.
Id. The Middle District’s local rules also permit the court to rule immediately after filing on
motions for extension of time, motions to exceed page limitation, motions for hearings,
motions to file surreply briefs, “motions which clearly have no basis in law,” and “such other
motions as the Court may otherwise determine from the parties to be unopposed or which
the Court may clearly determine from the record before it the relative legal positions of the
parties so as to obviate the need for the filing of opposition thereto.” M.D. Ga. L.R. 7.7.
Objections to such motions must be filed within seven days after service of the motion and
“will be entertained even after entry of an order on the motion.” Id.
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In both the Northern and Southern Districts, responses to motions are due 14 days
after service of the motion, except for responses to motions for summary judgment, which
are due 21 days after service of the motion. N.D. Ga. L.R. 7.1(B); S.D. Ga. L.R. 7.5. Moreover,
a failure to respond will be deemed as indicating that a party does not oppose the motion.
Id. In the Middle District, responses are due within 21 days. M.D. Ga. L.R. 7.2. In any of the
three Georgia federal districts, when a party wishes to file a reply brief in support of its own
motion, it must be filed within 14 days after service of the responsive pleading. N.D. Ga. L.R.
7.1(C); S.D. Ga. L.R. 7.6; M.D. Ga. L.R. 7.3. In the Southern District, a party intending to file
a reply brief in support of his motion, must notify the clerk of court “immediately.” S.D. Ga.
L.R. 7.6. In the Middle District, a party may move in writing for permission to file a surreply
brief within 14 days after filing of the brief to which the party wishes to respond, “succinctly
stating the reasons why additional briefing is necessary.” M.D. Ga. L.R. 7.3.1(C).
The Middle District’s local rules permit the clerk or any deputy clerk may grant a
single extension of up to 14 days to file any brief. M.D. Ga. L.R. 6.2. Any additional
extensions must be granted by the court and must be requested by written motion filed no
less than five days before expiration of the extension granted by the clerk. Id.
In the Northern District, briefs in support of and in opposition to motions are limited
to 25 pages, and reply briefs are limited to 15 pages. N.D. Ga. L.R. 7.1(D). At the end of each
brief, counsel must certify that the brief has been prepared with one of the font and size
combinations permitted under Local Rule 5.1(C) or, if typewritten, does not contain more
than ten characters per inch of type” Id. In the Middle District, briefs in support of or in
response to motions are limited to 20 pages, and a movant’s reply brief is limited to ten pages,
without prior permission from the court. M.D. Ga. L.R. 7.4. All briefs filed in the Southern
District are limited to 26 pages without prior permission from the court, including any title
pages, tables of contents, tables of cases, or “other pages prefatory to the main body” of the
brief. S.D. Ga. L.R. 7.1(a).
In Georgia state and federal courts alike, most motions generally will be decided
without a hearing unless the court orders otherwise. GA. UNIF. SUPER. CT. R. 6.3; N.D. Ga.
L.R. 7.1(E); S.D. Ga. L.R. 7.2; M.D. Ga. L.R. 7.5. In state court, an exception exists for motions
for new trial, motions for judgment notwithstanding the verdict, and motions for summary
judgment. GA. UNIF. SUPER. CT. R. 6.3. As to motions for summary judgment, oral argument
must be permitted if a party requests oral hearing through a written pleading entitled
“Request for Oral Hearing” which is filed either with the motion or no later than five days
after the time for a response. Id. In the Southern District of Georgia, a request for oral
argument must include an estimate of the time required for argument. S.D. Ga. L.R. 7.2.
IV. Dismissal, Adding/Dropping Parties, and Consolidating Cases
One key difference between state and federal court concerns a plaintiff’s ability to
voluntarily dismiss his case without prejudice. In state court, of course, a plaintiff may
dismiss his case voluntarily and without prejudice once at any time prior to the first witness
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being sworn at trial. O.C.G.A. § 9-11-41(a)(1)(A). In federal court, after an opposing party
has filed an answer or a motion for summary judgment, a plaintiff may only dismiss his case
either by court order or by a stipulation of all parties in the case. Fed. R. Civ. P. 41(a)(1)(A).
This distinction can be significant, particularly given that Georgia’s renewal statute,
O.C.G.A. § 9-2-61, applies both in state and federal court. See Scott v. Muscogee County, 949
F.2d 1122, 1123 (11th Cir. 1992). Obviously, a plaintiff will have no ability to refile under the
renewal statute if the district court does not permit the plaintiff to dismiss his case without
prejudice. In determining whether the prerequisites for renewal have been met, such as
whether the original action constituted a “valid action” from which renewal is permitted
under O.C.G.A. § 9-2-61, the federal courts will look to Georgia law. Scott, 949 F.2d at 1123;
Roberts v. State, 228 Fed. Appx. 851, 853 (11th Cir. 2007).
The rules also differ as to when or whether a trial court may consolidate actions. In
federal court, a trial court may consolidate any actions before the court which involve a
common question of law or fact, join for hearing or trial any or all matters at issue in the
actions, or issue any other others to avoid unnecessary cost or delay. FED. R. CIV. P. 42(a).
The court also may order separate trials of one or more issues or claims for convenience, to
avoid prejudice, or to expedite and economize. FED. R. CIV. P. 42(b). In state court, by
contrast, the Supreme Court of Georgia has held unequivocally that under O.C.G.A. § 9-11-
42, “the parties must consent before a trial court may consolidate or join related actions for
trial.” Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226, 229 (2) (1996). “Although patterned
after the federal rule, the state provision differs from the federal rule in one way: it requires
the parties’ consent to either consolidation or a joint trial.” Id. at 228-29.
V. Pretrial Procedure
In addition to the other mandatory disclosures outlined above, the Federal Rules
require parties to make pretrial disclosures about the evidence they may present at trial other
than solely for impeachment purposes. These pretrial disclosures must include: (i) the name
and, if not previously provided, the address and telephone number of each witness, as well
as stating whether the party “expects” to call each witness or whether the party “may call”
the witness “if the need arises”; (ii) a list of witnesses whose testimony the party expects to
present by deposition, and a transcript of the pertinent parts of the deposition if not taken
stenographically; and (iii) a list of each document or other exhibit, including summaries of
other evidence, the party will or may present at trial, stating for each whether the party
“expects” to offer it or whether the party “may offer” the evidence “if the need arises.” FED.
R. CIV. P. 26(a)(3)(A). Generally, pretrial disclosures must be made at least 30 days before
trial. FED. R. CIV. P. 26(a)(3)(B). Within 14 days after a party makes its pretrial disclosures, a
party may serve and file any objections to presentation of a witness’s testimony by deposition
or to the admissibility of any items of evidence identified in the disclosure. Id.
In both state and federal court, whether to hold a pretrial conference is within the
court’s discretion. FED. R. CIV. P. 16(a); O.C.G.A. § 9-11-16(a). Where a pretrial conference is
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scheduled in federal court, a represented party must authorize its attorney “to make
stipulations and admissions about all matters that can reasonably be anticipated for
discussion at a pretrial conference.” FED. R. CIV. P. 16(c)(1). The court also may order a party
or its representative to be present or “reasonably available by other means” to discuss or
consider potential settlement. Id. The Federal Rules set forth a long list of topics that may be
addressed by the court and the parties during a pretrial conference: (i) formulating and
simplifying issues and eliminating frivolous claims or defenses; (ii) amending the pleadings;
(iii) potential admissions or stipulations, or rulings on the admissibility of evidence; (iv)
avoiding unnecessary proof and cumulative evidence, including expert testimony; (v)
potential summary judgment; (vi) controlling and scheduling discovery, including sanctions
or other orders if necessary; (vii) identifying witnesses and documents, scheduling the filing
and exchange of pretrial briefs, and setting dates for further conferences and trial; (viii)
referring certain matters to a magistrate judge or special master; (ix) settlement discussions;
(x) form and content of the pretrial order; (xi) any pending motions; (xii) adopting special
procedures for managing potentially difficult or protracted actions involving complex
problems of proof; (xiii) ordering separate trials under Rule 42(b) of one or more claims or
issues; (xiv) ordering presentation of evidence early during trial on “a manageable issues
that might, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a)
or a judgment on partial findings under Rule 52(c)”; (xv) setting a reasonable limit on time to
present evidence at trial; and (xvi) “facilitating in other ways the just, speedy, and
inexpensive disposition of the action.” FED. R. CIV. P. 16(c)(2). If a pretrial order is held, the
court must issue a pretrial order reflecting all actions taken during the conference, which
order then will govern the action unless modified by the court. FED. R. CIV. P. 16(d).
In state court, “[f]ailure of counsel to appear at the pretrial conference without legal
excuse or to present a proposed pretrial order shall authorize the court to remove the action
from any trial calendar, enter such pretrial order as the court shall deem appropriate, or
impose any other appropriate sanction, except dismissal of the action with prejudice.” GA.
UNIF. SUPER. CT. R. 7.1. In federal court, failure to comply with the court’s pretrial instructions
may result in more serious sanctions, including dismissal of the case or entry of a default
judgment. See, e.g., N.D. Ga. L.R. 16.5.
While both the Uniform Superior Court Rules and the Federal Rules of Civil
Procedure contain form pretrial orders with which substantial compliance is required, the
form used in federal court tends to be substantially more complex and time-consuming. See
GA. UNIF. SUPER. CT. R. 7.2; FED. R. CIV. P. 26(a)(3). In the Northern District of Georgia, in
particular, nearly all pretrial matters must be addressed in the consolidated pretrial order
filed by the parties, including a listing of the parties’ proposed voir dire questions and
objections, a complete list of exhibits and documentary evidence to be used and objections to
other parties’ exhibits, any trial briefs to be submitted by the parties, all requested jury
charges, and a proposed verdict form. See N.D. Ga. L.R. 16.4(B). In state and superior court,
by contrast, those items are not due until just before trial unless ordered otherwise by the
court in a scheduling order or trial notice.