By: John A. Houghton
We live in an era in which people have become increasingly inconsiderate to one another. People can communicate tremendously offensive insults to each other and hide behind the relative safety and anonymity of social media. With this increase in technology, we have witnessed a decline in formal social and business interactions. Emails have replaced written letters, and text messages have replaced phone calls. The diminished formality of our society has also resulted in many people placing less priority on events they themselves deem unimportant. Part of this sentiment has unfortunately bled into how some parties conduct themselves in civil litigation.
Although most parties to litigation take their roles in the proceedings very seriously, there are the few who simply disregard the advice of counsel and refuse to actively participate in the civil action. Depositions are canceled or outright ignored, and discovery responses are sometimes provided with no meaningful information. Many times, the insurer does not discourage this conduct early on, as most liability policies specifically ‘reserve the right to deny coverage’ if an insured does not cooperate with the defense of the case.
However, if the lawsuit has been served and answered by retained counsel for the defendant, there is only a very narrow set of circumstances in which the insurer could successfully deny coverage without repercussion. [Insurer must establish it requested cooperation, the insured defendant willfully and intentionally failed to cooperate, and the insurer was prejudiced as a result. See Travelers Home & Marine v. Castellanos, 297 Ga. 174 (2015).] There is a strong presumption in favor of insurance coverage under Georgia law; most personal injury actions do not reach trial without some type of insurance policy providing coverage.
While there are some litigants that do not take their civil action very seriously, the Courts most certainly do. The consequences for failing to participate in the discovery process can be far-reaching and punitive. Discovery sanctions can arise when parties disregard the importance of exchanging information or attending depositions.
Before getting too deep into the technicalities of sanctions, it is important to understand the importance of the parties’ pleadings in a case. The initial pleading filed by the Plaintiff generally known in Georgia as the ‘Complaint for Damages’ is the declaration of war that commences the civil action. The Complaint provides notice to the opposing Defendant(s) of the various theories of liability that Plaintiff alleges resulted in his damages. Any Defendant served with the summons and complaint has 30 days to respond with any legal and factual defenses he intends to assert at trial in response to the Plaintiff’s allegations. This responsive pleading is known as the ‘Answer.’
Discovery sanctions can range in severity, and the most detrimental is the striking of a party’s pleadings. O.C.G.A. § 9-11-37(d)(1) provides that if a party “fails to appear before the officer who is to take his deposition, after being served with a proper notice”, the Court may then “take any action authorized under subparagraphs (b)(2)(A) through (b)(2)(C) of this Code section. (b)(2)(C) includes “An order striking out pleadings or parts thereof.”
The failure of a party to appear at their deposition alone is grounds for the imposition of sanctions, and unlike other sanctions does not require an order of court as a basis for imposition of sanctions. Kruger v. Kruger, 146 Ga. App. 461 (1978). Refusal to be deposed is grounds for dismissal under O.C.G.A. § 9-11-37(d). King v. Board of Regentes of Univ. Sys. of Ga., 238 Ga. App. 4 (1999). Similarly an order dismissing a defendant’s Answer is proper when a defendant intentionally fails to attend a properly noticed deposition. Carter v. Merrill Lynch, Pierce, Fenner & Smith, 130 Ga. App. 522 (1974); West v. Equifax Credit Info. Servs., Inc., 230 Ga.App. 41 (1998). Moreover a party is under a duty to keep in contact with their attorney, and their failure to do so amounts to willful misconduct sufficient to warrant a dismissal of their Answer. Carter, 130 Ga. App. at 524.
An order compelling discovery does not necessarily need to be filed before sanctions can be imposed under subsection O.C.G.A. § 9-11-37(d). Rivers v. Almand, 241 Ga. App. 565, 527 S.E.2d 572 (1999); Cook v. Lassiter, 159 Ga.App. 24, 25, 282 S.E.2d 680 (1981). The sanctions of O.C.G.A. § 9-11-37(d) (striking of a party’s pleadings, etc.) for failure to comply with discovery provisions of the Civil Practice Act require only a conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, since a conscious or intentional failure to act is deemed to be willful. O.C.G.A. § 9-11-37(d); Roberts v Maren Engineering Corp., 225 Ga. App 110, 483 SE2d 141 (1997); James v. Gray, 229 Ga. App. 39, 494 S.E.2d 198 (1997), cert. denied, (Feb. 6, 1998).
Plaintiffs need not obtain an order compelling the Defendant to attend her deposition before moving the trial court to dismiss Defendant’s Answer. Barron v. Spanier, 198 Ga. App. 801, 403 S.E.2d 88 (1991); Bryant v. Nationwide Insurance Co., 183 Ga. App. 577, 359 S.E.2d 441 (1987). See also West v. Equifax Credit Information Services, Inc., 230 Ga. App. 41, 495 S.E.2d 300 (1997) (“Provided that proper discovery procedure is followed, the Civil Practice Act authorizes a trial court to dismiss (an) action as a sanction for complete failure to attend his own deposition, to respond to interrogatories, or to respond to the request for production.” Id. at 303).
If the Court ‘strikes’ a Plaintiff’s Complaint, the injury victim’s cause of action is effectively dismissed, and he likely cannot recover for his injuries. Likewise, if the Court were to strike a party’s Answer, the Defendant would not be permitted to assert any liability defenses at trial, and the Plaintiff’s allegations of negligence are all deemed admitted to the jurors. The case then proceeds to trial as a simple determination of damages by the jurors. The outcome of a struck Answer can be devastating for a Defendant, especially in cases involving good liability defenses and a catastrophically injured Plaintiff.
O.C.G.A. § 9-11-37(d)(1) also authorizes the Court to “require the party failing to act or the attorney advising him, or both, to pay the reasonable expenses, including, attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” O.C.G.A. § 9-11-37(d)(1). Attorney fees and litigation expenses can also be a quite onerous sanction, and can be assessed against both the party and his attorney.
Usually, the above-referenced conduct by the party is not the result of any improper action on the part of the retained lawyers involved. Defense attorneys are often overworked and do not pick and choose which insureds they represent in these civil cases. Defense counsel for the insured may be paid by the insurance company, but they have a fiduciary obligation to the Defendant insured to always serve in his or her best interest. At the outset of any civil action, attorneys for both sides need to confer with their clients about the importance of actively participating in good faith throughout the discovery process. The client must understand the potential negative consequences for not providing responses to discovery or failing to attend depositions. An ounce of prevention is worth a pound of cure. And discovery sanctions can be incurable.