Use of The 5th Amendment in Civil Discovery

1.     Article: When the Fifth Amendment Hurts Your Client: A Defendant’s assertion of Fifth Amendment rights during discovery in a civil case can place the Plaintiff at a distinct disadvantage.

a.     Fifth Amendment provides that an individual does not have to ‘answer official questions put to him...where the answers might incriminate him in future criminal proceedings...where there is a reasonable apprehension of criminal prosecution, a witness may assert the privilege...

i.      The US Supreme Court has held that the court should reject an assertion of privilege only where it is perfectly clear...that ...the answer[s] cannot possibly have such tendency to incriminate.  Hoffman v. United States, 341 U.S. 479, 488 (1951)

b.     Article goes on to list possible remedies for Plaintiffs confronting Fifth Amendment assertions by defendants.

2.     Meyer: Nevada Case, 1979, regarding assertion/waiver of Fifth Amendment privilege by wife in change in custody case, re: drug use.

3.     Temple: 1981 refusal to answer adultery questions “on advice of counsel” OK - Don’t have to “Take the 5th”

Discovery:   Depositions Generally

1.            Blanton: Issue: can an out of state resident be compelled to come to Georgia for a depo, when no subpoena served in Georgia?  Answer: No.  (But see Davenport: Blanton Rule doesn’t apply to parties, only witnesses)

Discovery   Physical & Mental Examination of Persons

1.     Copy of O.C.G.A. §9-11-35 (Phys & Ment Examination of Persons)

2.     Annotation concerning Federal Civil Procedure Rule 35 - phys and mental examination.

3.     Bradford, Lehmann, Sheffield & Crider: physical examination must be ordered by Trial Court after motion made and good cause shown (various rules)


Discovery:  Request for Admissions:

        A written demand for a party’s admission of the truth of a fact at issue in civil litigation, of the application of law to the fact, or of the genuineness of a document relevant to the issues [see Fed.R.Civ.P. 1.370(a); OCGA §9-11-36(a)(1).  Used primarily after discovery has been completed.  Once the parties know all or most of the relevant facts and the state of the evidence, it becomes appropriate to isolate and refine the issues about which there is a real and substantial controversy, eliminating from the trial those issues that the parties do not in good faith dispute.

        Any matter admitted in response to a request for admission is conclusively established unless the court permits withdrawal or amendment of the admission OCGA §9-11-36 (b).  This means that matters that are admitted are taken as true, the same as if they had been alleged by both parties in their pleading.  No proof of the matter is required [see Booker v. Southern Steel, 150 Ga.App. 306, 257 S.E.2d 375 (1979). Admission that contract was genuine, it being unexceptionable on its face, left no issue as to whether contract was in fact void in action against property owner for improvements made pursuant to contract.] However, the admit applies only to the pending action, is not an admission for any purpose, and may not be used against a party in any other proceeding OCGA §9-11-36 (b). 

        To place an admit into evidence in a jury trial, the proper technique is to read the request and admission to the jury and ask the court to instruct the jury that the admission is conclusive and that no further proof of such fact is required. 

        Admissions may be used to support a motion for summary judgment.  OCGA § 9-11-56(c). 

        When a pretrial order has been entered encompassing admissions, amendment of those admissions will only be possible to prevent manifest injustice.  This is a different standard than the one that ordinarily governs amendment of admissions. 

        Because the rule states that the admission is conclusively established, it appears that the admission is binding on the party who obtained it.  OCGA §9-11-36 (b). 

        Response to request for admission: a party served with a request for admission must [within 30 days, or 45 days from initial complaint, whichever is longer, unless extension of time to answer granted by court] either answer or object to each admission requested. OCGA §9-11-36(a)(2).  A responding party who chooses to answer may either (1) admit the matter, (2) specifically deny the matter, or (3) set forth in detail the reasons why the party cannot truthfully admit or deny the matter.  A denial must fairly meet the substance of the request, when good faith requires that the party qualify the party qualify the answer or deny only a part of the matter, the party must specify which part is true and qualify or deny the rest.  The responding party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that reasonable inquiry has been made and that there is insufficient information known to enable the party to admit or deny.  See Gregory v. Vance Pub. Corp., 130 Ga.App. 118 (1973). 

Objections to Discovery:

  •    Privileged
  •    inadmissible at trial and not calculated to lead to the discovery of admissible evidence;
  •    embarrassment, annoyance, oppression, or undue burden or expense
  •    not relevant
  •    calls for work product
  •    calls for conclusions of law (see A & D Barrell & Drum Co. v. Fuqua, 132 Ga.App. 827, 209 S.E.2d 272 (1974).

Protective orders: a party may move for a protective order where the facts establish good cause for protection from annoyance, embarrassment, oppression, or undue burden or expense.  Possible protective orders [OCGA §9-11-26(c)] include:

  •    that discovery not be had;
  •    that discovery be had only on specified terms and conditions;
  •    that discovery be made by a different method;
  •    that various types of confidential information not be disclosed, including trade secrets or           other confidential research, development, or commercial information;
  •    that information be exchanged simultaneously;
  •    any order that justice requires.

Challenges to Response: OCGA §9-11-36(a)(3) allows party requesting admissions to challenge any answer by a Motion to determine the sufficiency of the answer.  If the court determines that the answer does not comply with the requirements for answers, it may order either that the matter is admitted or that an amended answer be served.

Withdrawal or Amendment of Admission: on Motion of the admitting party, an admission may be amended or withdrawn with the permission of the ct.  The court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved by it and when the party who obtained the admission fails to satisfy the court that withdrawal or amendment will be prejudicial in maintaining the action or defense on the merits.  OCGA § 9-11-36 (b).  However the court’s authority is limited if the admission has been embodied in a pretrial order.  Under OCGA §9-11-16, if the admission is embodied in a pretrial order, it becomes part of the subsequent course of the action unless modified at the trial to prevent manifest injustice. 

Admissions deemed to be made: the court has the discretion to permit the filing of late answers and a motion to permit withdrawal or amendment of admissions made by virtue of failure to respond is proper to invoke the court’s discretion. Meadows v. Dalton, 153 Ga.App. 568, 266 S.E.2d 235 (1980) [motion not timely after grant of summary judgement].  The test determining whether the party will be allowed to withdraw the technical admissions is (1) whether the presentation of the merits will be served by withdrawal, and; (2) whether the party obtaining the admission will be prejudiced by the withdrawal in maintaining the action of defense on the merits.  The burden of the first part of the test is on the moving party; the burden of showing prejudice, however, is on the adverse party. [Cielock v. Munn, 24 Ga. 810, 262 S.E.2d 114 (1979).]  Since the effect of withdrawal on presentation of the merits is a principle factor, the existence of providential cause or excusable neglect to explain the late filing would not be relevant.  Rather, if the burden of proof regarding the subject matter is on the moving party, that party must show that the proffered denial of the request can be proved by admission evidence having a modicum of credibility and that the denial is not offered solely for the purpose of delay.  On the other hand, if the burden of proof regarding the subject matter of the request is on the adverse party, the moving party is required to show that the admitted request either can be refuted by admissible evidence or is incredible on its face and that the denial is not offered solely for the purpose of delay.  See Atlanta v. State Farm, 156 Ga.App. 344, 274 S.E.2d 733 (1980): presentation of merits not subserved were proffered answer denied only one, nonmaterial fact.

Expense caused by failure to admit: If a party fails to admit the genuineness of a document or the truth of a matter set forth in a properly served request for admissions, and if genuineness and truthfulness are later proved by the requesting party, such a party may move for an order requiring payment of the reasonable expenses incurred in making the proof.  The court must grant the motion unless it finds that property objections would prevail; that the admissions sought were of little importance to the movant; or that there were other valid reasons for the failure to admit.  See OCGA §9-11-37(c), Spencer v. Dupree, 150 Ga.App. 474, 258 S.E.2d 29 (1979) ($150 awarded for party’s failure to answer request for admission for four months).  Reasonable expenses must include attorney’s fees [OCGA §9-11-37(c)].

Discovery: Contempt/Sanctions

1.    GM v. Conkle: factors which must be considered and findings required to impose dismissal or default judgment.  Also Trial Court must make ‘express finding’ of willfulness, bad faith, or a conscious indifference to consequences before dismissing under O.C.G.A. §9-11-37(b).

2.    Case note: Danger v. Strother 1994, answer stricken & default judgment

3.     Rivers: Court of Appeals reversed dismissal for failure to allow discovery: hadn’t totally failed to comply

Discovery: Interrogatories

1.     Letter on Waiver of objections to Interrogatories by failing to answer or object within required 30 day period & Cases on same topic: Ale-8-One of America, Inc. v. Graphicolor Services, Inc., 166 Ga. App. 506, 305 S.E.2d 14 (1983); Drew v. Hagy, 134 Ga. App. 852, 216 S.E.2d 676 (1975); and Aetna Life Insurance Company v. Greene, 116 Ga. App. 783, 159 S.E.2d 87 (1967)

Discovery   O.C.G.A. §50-18-70: Georgia Open Records Act