Current Georgia Subpoena Rules Overview
Overview of Georgia Subpoena Rules
A subpoena is a legal document that commands an individual to appear or produce evidence regarding a potential legal dispute. In essence, it is a document that gives notice to a party that their presence is required by the state to participate in a legal proceeding. Subpoenas can be issued by either the court itself or a legal party on behalf of the court. The subpoena can compel a person to testify in court, to produce documentary evidence, or to do both.
All forms and functions of the subpoena are governed by Georgia law. A basic understanding of these laws is crucial to follow the proper Georgia subpoena rules – both for attorneys and the parties served. Failure to follow these rules can result in litigant and/or attorney sanctions. Parties served that fail to respond to a subpoena expose themselves to further legal repercussions.
The Georgia subpoena rules can be slightly complex, and it is typically necessary to consult with a Georgia attorney when involved in a lawsuit . However, a basic understanding of the law will help you navigate the subpoena process and avoid potential pitfalls during the discovery process.
There are two basic types of subpoenas – subpoenas ad testificandum and subpoenas duces tecum. A subpoena ad testificandum compels an individual to appear and testify at a deposition or trial. Subpoenas duces tecum require a party to produce documents or other tangible evidence.
The most basic of all subpoenas is the Peterson Subpoena. Named after the case Peterson v. City of Atlanta, this subpoena rule is essentially a stipulation that any subpoenas issued under Georgia law must be personally served. Failing to serve a subpoena correctly is grounds for a motion to quash the subpoena. A Peterson Subpoena is also often used in conjunction with Civil Standby Orders in order to prevent the alleged aggression of potentially violent parties during discovery or trial.
Different Types of Subpoenas and Their Specific Uses
In Georgia, there are a few ways for a party or a lawyer to obtain documents from a non-party when that non-party is not voluntary providing those documents. There is a general rule that the Court could not assist in obtaining documents that were not voluntarily produced, but that rule has been relaxed in certain contexts.
Rule 45 of the Georgia Rules of Civil Procedure sets forth three different types of subpoenas that can be served on a non-party in order to obtain documents, electronically stored information, or tangible things. These are a trial subpoena, a deposition subpoena and a subpoena for pretrial discovery.
If a party wants to obtain documents for use of at trial then the party will often issue them a trial subpoena or a subpoena to attend trial. If a party issues a trial subpoena then that non-party will likely come to Court with those documents in the Courtroom. If the other party wants those documents in advance of trial then the party could issue a subpoena to attend trial and produce documents. That subpoena will require the third party to bring those documents to trial.
If a party wants to obtain documents simply to prepare for a trial there are several options available to them. If they do not want to take the deposition of the third party they can issue a subpoena for pretrial discovery. This is often issued when a lawyer wants to ask the third party small amounts of questions while having them bring documents that lawyer believes are relevant to the issues in the case. If the lawyer does not want to ask questions at all and simply wants to obtain documents then the lawyer can issue a subpoena for production of documents without having to ask any questions.
How to Serve a Subpoena in Georgia
Issuing a subpoena in Georgia is a fairly straightforward process. In Georgia, there are several types of subpoenas, both for personal appearances and production of documents. Parenthetically, discovery disputes are not addressed to the judge in Georgia unless the parties confer and the judge is supervising in a pending case. There is no such thing as a discovery motion in Georgia. So, if the subpoena requested records, there is no need to formally involve the judge. The record custodians are served the subpoena to produce documents pursuant to the Civil Practice Act.
According to Official Code of Georgia §24-10-23, "subpoena" means "a statement, written or oral, whereby a court or other authorized agency commands or requests a witness to attend and give testimony." In addition to these traditional subpoenas, a recently enacted statute provides that a notary public may also issue a subpoena "signed or authorized by a notary public, who shall state his or her title as notary public, and directs the recipient to appear and give testimony. A subpoena signed by a notary public issued pursuant to this Code section shall have the same force and effect as a subpoena issued by an officer of the court."
As with most things in Georgia, that statute must be carefully read to ensure that a proper technique was used to issue the subpoena. A subpoena that is not correctly issued is not a subpoena subject to motion to quash.
Lists of names can be served on the notary with instructions to complete a deposition subpoena. That is all that Georgia allows. Only a litigator can prepare and serve a subpoena in Georgia. Now, codswallop from some notary’s lawyers apparently leaves people to issue subpoenas, even for depositions, all over the place. Is it really that big of a problem, or just a money making scheme like the red light cameras? Most subpoenas are issued by lawyers.
What is a "party" to a Georgia action? The term "party" is so included to ensure that no one from Alabama sends the notary a subpoena and purports it to be a valid Georgia subpoena. No one in any state, much less Alabama, cares a whit about what the Georgia legislature says is a party to a Georgia action except for someone who lives in Georgia. That is where the notary will be and where the subpoena is likely to be served. That is why it is relevant.
Is a paralegal a party? A legal secretary? A lawyer? That is a question for later analysis, but is not the subject of this blog post.
Official Code of Georgia §24-10-26 requires a Georgia subpoena to issue from the clerk of court’s office to bind a person to the jurisdiction of the court. A notary Public subpoena will travel anywhere in the United States with the same force and effect as a subpoena issued by the clerk of the court.
Or maybe not. Official Code of Georgia §51-13-42 actually says: "(a) A subpoena issued by an attorney in a civil action pending in superior court may be served anywhere in this state; but the attorney shall, however, be bound thereby as if he had sued out a subpoena from the clerk of court of the county in which the witness is found and in which the action is pending."
The answer to this issue is that a notary public has the same authority as a clerk of court regarding a Georgia subpoena. It is not a requirement to get a judge’s approval to issue the subpoena, as it is in Federal Court.
Subpoena Compliance Issues and Problems
All subpoenas issued within Georgia must be complied with on the date and time specified, absent an agreement between the parties or prior court order. Non-compliance, or failure to produce the requested documents, books, papers, and things, can lead to a motion of contempt filed by the subpoenaing party. The Court generally will issue a show cause order, and may issue a bench warrant for the arrest and appearance of the subpoenaed person.
There are several grounds that are acceptable for contesting the production required or for contesting the subpoena in its entirety . Grounds include: irrelevant; overly broad, unduly burdensome, or seeking speculative information; objectionable on other legal grounds such as privilege; or lack of information. A written objection to the subpoena must be filed in all situations wherein the receiving party intends to not comply with the subpoena or is prevented from complying with the subpoena. The objection must be served upon all counsel, or all parties without representation, and shall include the basis for objecting to the request. If the objection is that of an unreasonable or overly general request of production of documents, the objection shall also set forth the scope and form in which the objector will comply with the request.
The Consequences of Failing to Comply with a Subpoena
Under Georgia law, if a subpoena is issued to compel a person to testify at a hearing or trial, and the subpoenaed person fails to appear, the court may impose sanctions. The court may hold the witness in contempt, assess attorney’s fees or award reasonable expenses because the witness failed to appear. O.C.G.A. 24-8-27 (b). If that person was a defendant or said something against a party who actually served the subpoena, the court may also prevent that party from participating in any further hearing/trial or offer any evidence other than rebuttal that relates to the subject matter unless the court determines that the absence was justified. O.C.G.A. 24-8-27 (c). The Georgia courts require that a witness who failed to appear be found in contempt before the court will issue a bench warrant for the arrest of the absent witness. State of Georgia v. Underwood, 140 Ga. App. 562, 236 S.E.2d 117 (1977), In Re Cline, 191 Ga. App. 789, 383 S.E.2d 397 (1989). Georgia courts have held that there is a legal right to quash a subpoena in part. The filing of partial objections is a defense to contempt actions. State of Georgia v. Underwood, 140 Ga. App. 562, 236 S.E.2d 117 ("the trial court is authorized both by the Georgia Civil Practice Act and by the Uniform Civil Procedure Rules to quash all or part of a subpoena which purports to require a trial or deposition appearance of a witness who states that he is not in fact incompetent or unqualified."). In the event the objection is successful in part, the convicting court will set aside its contempt order. Finally, if the request for the private medical information is improper, the witness must simply provide his current address. The witness is thereafter free from any possible contempt proceedings or other penalties.
Recent Changes to Georgia Subpoena Law
Georgia courts have not been shy about rejecting or limiting discovery motions and subpoenas for myriad reasons. Such a practice should not be disconcerting to attorneys or their clients.
This post will outline recent case law in Georgia that impacts subpoenas.
Subpoenas Require a Case Initiation The Appellate Division of the Georgia State Board of Workers’ Compensation recently clarified that a fee must be paid to initiate a case under the Georgia Workers’ Compensation Act before an attorney can issue a subpoena for a witness or document. Renfroe v. Liberty Mutual Ins. Co., Case No. A19-0997 (Ga. Ct. App. Nov. 4, 2019).
This case involved a motion to compel that was filed in a dismissed WC-3 form case. The Board of Workers’ Compensation denied the motion because it was technically deficient, but it did reach the merits of the dispute and agreed with the Appellate Division’s analysis. The Appellate Division similarly agreed with the Board of Workers’ Compensation that the dispute must be decided as a motion to compel prior to issuing a subpoena.
Essentially, the Board of Workers’ Compensation stated that negligence or bad faith in issuing discovery via subpoena does not excuse the requirement to obey the conditions precedent to its issuance.
No Permission Is Required for Public Records The Georgia Supreme Court recently held that a criminal defendant was not required to issue a formal request to the District Attorney’s office prior to issuing a Georgia Open Records Act (O.G.R.A . ) subpoena to reveal telephone numbers pertaining to cell phone records that were relevant to their defense. Burch v. State, Case No. S19A0737 (Ga. Ct. App. Nov. 4, 2019).
In holding that O.G.R.A. is "broader in scope than many other pre-trial discovery tools," the Court of Appeals noted that O.G.R.A.’s language stated that it was "improper to refuse to furnish in response to such a subpoena any information that is reasonably available."
This tenor is consistent with the plain language of the Georgia Open Records Act under O.C.G.A. § 50-18-70(a) which states: All citizens of this state are allowed to inspect, except as otherwise provided by this chapter, at a reasonable cost and within a reasonable time, all public records, except those records specifically exempted from disclosure in this chapter or any other law.
All That Glitters Is Not Gold A person who said he was a shareholder in a corporation issued 11 subpoenas to Alliance Entertainment Corporation. Alliance filed a motion to quash on the grounds that the person was not authorized to issue them on behalf of the corporation.
The person who issued the subpoenas failed to appear at the hearing to argue why they should not be quashed. The Court of Appeals noted that a person cannot unilaterally attempt to enforce or defend rights of the corporation. The Court of Appeals then affirmed the order granting the motion to quash.
This case shows that litigants must consider the possible ramifications of allowing an unapproved or unauthorized person to become involved or overly involved with discovery.
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