FEDERAL VS. STATE COURT IN GEORGIA

By Martin A. Levinson mlevinson@hptylaw.com

Hawkins Parnell Thackston & Young LLP Atlanta, Georgia

February 2015

Key Differences,

Practice Pointers, and

Tips for Litigators

- i -

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

- 2 -

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).

- 3 -

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.

- 4 -

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).

- 5 -

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:

- 6 -

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

- 7 -

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

- 8 -

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

- 9 -

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

- 10 -

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

- 11 -

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.

- 12 -

§ 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

- 13 -

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

- 14 -

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

- 15 -

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).

- 16 -

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

- 17 -

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.

- 18 -

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).

- 19 -

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.

- 20 -

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

- 21 -

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

- 22 -

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.