Accidental Failure To Produce Discoverable Information Is Not Sanctionable

The Court of Appeals of Georgia reversed discovery sanctions against a party for failing to disclose an umbrella insurance policy. Foundation Contractors, Inc. v. Home Depot U.S.A., Inc., A20A1771, 2021 WL 977693 (Ga. Ct. App. Mar. 16, 2021). At issue in Foundation was whether the failure to respond to an interrogatory request seeking information on all insurance policies was sanctionable conduct allowing for dismissal/default where Foundation sought a list of all policies in place from its insurer. Id. at *1. However, the insurer only mentioned and gave details on two policies, not including a third umbrella policy that became central to the dispute. Id.

A trial court “has broad discretion in the enforcement of the discovery provisions of the Civil Practice Act, and [] will not interfere with the exercise of that discretion absent clear abuse.” (Punctuation and footnote omitted.) Cameron v. Miles, 311 Ga. App. 753, 754 (1) (716 SE2d 831) (2011). When a party has failed to respond to a document production request or an interrogatory, OCGA § 9-11-37 (d) (1) authorizes a trial court to “make such orders in regard to the failure as are just.” Similarly, “an intentionally false response to a written discovery request, particularly when it concerns a pivotal issue in the litigation, equates to a total failure to respond, triggering OCGA § 9-11-37 (d) sanctions.” Foundation, 2021 WL 977693 at *3 quoting Resurgens, P. C. v. Elliott, 301 Ga. 589, 595-596 (2017).

However, before a trial court may enter the sanction of dismissal it must find that the offending party has acted willfully. Id. When a party accidentally or through involuntary non-compliance fails to act sanctions are such as dismissal and default are not warranted. Id. In Foundation, the court ultimately found that Foundation's attorney requested the pertinent documents and their insurer failed to disclose the existence of the umbrella policy. Id. Further, upon learning of the umbrella policy, Foundation immediately (within 48 hours) notified Home Depot of the policy. Id.

Ultimately, the court found the the fact that the umbrella policy could have been discovered earlier, without more, is insufficient to show willfulness and thereby reversed the sanction. Id. at *4. The court mentioned throughout its opinion that the severity of a sanction of dismissal or default must be considered in determining the willfulness.