The Georgia motion to compel: silence is not excused by an objection you never filed

Georgia's discovery sanctions statute has one provision that decides most disputes about a party who simply did not respond.

§ 9-11-37(d)(2): a failure to act "may not be excused on the ground that the discovery sought is objectionable" unless the party sought a protective order.

So the common defense — we didn't answer because the requests were improper — does not work in Georgia unless the objecting party went to the court first.

Fees run both ways, and both are mandatory

O.C.G.A. § 9-11-37(a)(4):

(A) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

(B) If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

(C) If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

Both directions are mandatory, subject only to substantial justification or injustice. Georgia is symmetric where Texas is not — a movant who loses faces the same presumptive award as a respondent who loses.

The award reaches the attorney advising the conduct, not only the party.

What can be compelled

§ 9-11-37(a)(2):

Motion; protective order. If a deponent fails to answer a question propounded or submitted under Code Section 9-11-30 or 9-11-31, or a corporation or other entity fails to make a designation under paragraph (6) of subsection (b) of Code Section 9-11-30 or subsection (a) of Code Section 9-11-31, or a party fails to answer an interrogatory submitted under Code Section 9-11-33, or if a party, in response to a request for inspection submitted under Code Section 9-11-34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to subsection (c) of Code Section 9-11-26.

And the provision that covers most real disputes, § 9-11-37(a)(3):

Evasive or incomplete answer. For purposes of the provisions of this chapter which relate to depositions and discovery, an evasive or incomplete answer is to be treated as a failure to answer.

Notice how broadly that is framed — it applies "for purposes of the provisions of this chapter which relate to depositions and discovery", not merely to the motion-to-compel subsection.

Where to file

§ 9-11-37(a)(1):

Appropriate court. An application for an order to a party may be made to the court in which the action is pending or, on matters relating to a deposition, to the court in the county where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the county where the deposition is being taken.

An order against a non-party deponent must go to the county where the deposition is taken. That is mandatory.

Total failure to respond: no order needed first

§ 9-11-37(d)(1):

If a party or an officer, director, or managing agent of a party or a person designated under paragraph (6) of subsection (b) of Code Section 9-11-30 or subsection (a) of Code Section 9-11-31 to testify on behalf of a party fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers or objections to interrogatories submitted under Code Section 9-11-33, after proper service of the interrogatories, or fails to serve a written response to a request for inspection submitted under Code Section 9-11-34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just; and, among others, it may take any action authorized under subparagraphs (b)(2)(A) through (b)(2)(C) of this Code section. In lieu of any order, or in addition thereto, the court shall 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.

Three triggers — failure to appear at a properly noticed deposition, failure to serve answers or objections to interrogatories, failure to serve a written response to a request for inspection.

Where one applies, the court may go straight to the sanctions in (b)(2)(A) through (C), which include striking pleadings, dismissal, and default judgment — with no prior order to compel.

And the fee award here is again mandatory: "the court shall require the party failing to act or the attorney advising him, or both, to pay."

The provision that closes the argument

§ 9-11-37(d)(2):

The failure to act described in the provisions of this chapter which relate to depositions and discovery may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by subsection (c) of Code Section 9-11-26.

If you think the discovery is improper, the answer is to serve objections or apply for a protective order — not to do nothing. A party who stayed silent cannot raise the objection as a defense at the sanctions hearing.

This cuts both ways in practice. It is the movant's strongest point against a non-responding opponent, and it is the reason a party who genuinely objects must put something on file inside the deadline. See Georgia discovery deadlines.

Sanctions for disobeying an order

§ 9-11-37(b)(2) lists what follows a violated order:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders, or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

Followed by:

In lieu of any of the foregoing orders, or in addition thereto, the court shall require the party failing to obey the order 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.

§ 9-11-37(b)(1) adds that a deponent who fails to be sworn or answer after being directed to do so by the court in the deposition county "may be considered a contempt of that court."

The cost of refusing to admit

§ 9-11-37(c) is a separate and underused lever:

Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Code Section 9-11-36 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that the request was held objectionable pursuant to subsection (a) of Code Section 9-11-36, or the admission sought was of no substantial importance, or the party failing to admit had reasonable ground to believe that he might prevail on the matter, or there was other good reason for the failure to admit.

"The court shall make the order unless" — four exceptions, and the burden of fitting into one falls on the party that refused to admit.

This is the reason to serve carefully targeted requests for admission early: a denial that later proves wrong carries a price.

Before you file

1. Confirm the discovery was properly served and the response time has run.
2. Read what came back for evasion or incompleteness, which the statute treats as no answer at all.
3. Check whether anything was filed at all. If not, subsection (d) is available and no prior order is needed.
4. Pick the right court, especially for a non-party deponent.
5. Weigh the risk. A denied motion carries a mandatory fee award against you.

How Georgia compares

A short checklist

1. If you object, file something. Silence is not excused unless you applied for a protective order.
2. Quote § 9-11-37(a)(3) where the answer was evasive or incomplete.
3. If nothing at all was served, use subsection (d) and ask for the substantive sanction directly.
4. File in the county where the deposition is taken for an order against a non-party.
5. Expect the fee award to be mandatory either way. Only substantial justification or injustice avoids it.
6. Name the advising attorney where the conduct warrants it — the statute reaches them.
7. Complete or adjourn a deposition before applying for an order.
8. Consider § 9-11-37(c) after trial or hearing if a refused admission had to be proved.

Where these rules live

• O.C.G.A. § 9-11-26 — General provisions governing discovery
• O.C.G.A. § 9-11-33 — Interrogatories to parties
• O.C.G.A. § 9-11-34 — Production of documents and things
• O.C.G.A. § 9-11-36 — Requests for admission
• O.C.G.A. § 9-11-37 — Failure to make discovery; sanctions

This page explains what the statute says. It isn't legal advice, and what makes an objection substantially justified is developed in case law this site doesn't cover.