Subpoena for Taking Depositions; Objections; Place of Examination

1. Law
2. Georgia Code
3. Civil Practice
4. Civil Practice Act
5. Trials
6. Subpoena for Taking Depositions; Objections; Place of Examination

1. 1. 1. The clerk of the superior court of the county in which the action is pending or the clerk of any court of record in the county where the deposition is to be taken shall issue subpoenas for the persons sought to be deposed, upon request.
      2. Upon agreement of the parties, an attorney, as an officer of the court, may issue and sign a subpoena for the person sought to be deposed on behalf of a court in which the attorney is authorized to practice or a court for a venue in which a deposition is compelled by the subpoena, if the deposition pertains to an action pending in a court in which the attorney is authorized to practice.
      3. Subpoenas issued pursuant to this paragraph shall be issued and served in accordance with law governing issuance of subpoenas for attendance at court, except as to issuance by an attorney. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by subsection (b) of Code Section 9-11-26, but in that event the subpoena will be subject to subsection (c) of Code Section 9-11-26; or the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may quash or modify the subpoena if it is unreasonable and oppressive, or condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.
   2. The person to whom the subpoena is directed may, within ten days after the service thereof or on or before the time specified in the subpoena for compliance, if such time is less than ten days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move, upon notice to the deponent, for an order at any time before or during the taking of the deposition, provided that nothing in this Code section shall be construed as requiring the issuance of a subpoena to compel a party to attend and give his deposition or produce documents at the taking of his deposition where a notice of deposition under Code Section 9-11-30 has been given or a request under Code Section 9-11-34 has been served, such notice or request to a party being enforceable by motion under Code Section 9-11-37.
2. A person who is to give a deposition may be required to attend an examination:
   1. In the county wherein he resides or is employed or transacts his business in person;
   2. In any county in which he is served with a subpoena while therein; or
   3. At any place which is not more than 30 miles from the county seat of the county wherein the witness resides, is employed, or transacts his business in person.

(Ga. L. 1967, p. 226, § 19; Ga. L. 1972, p. 510, § 11; Ga. L. 1997, p. 457, § 1.)

Cross references.

- Subpoenas and notices to produce generally, § 24-13-21 et seq.

U.S. Code.

- For provisions of Federal Rules of Civil Procedure, Rule 45, see 28 U.S.C.

Law reviews.

- For article comparing sections of the Georgia Civil Practice Act with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For annual survey on trial practice and procedure, see 42 Mercer L. Rev. 469 (1990). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 16 (1997). For article, "Best Practices for Issuing Subpoenas Depositions of Georgia Residents in Cases Pending Out of State," see 12 Ga. St. B.J. 12 (2007).

JUDICIAL DECISIONS

Non-resident who files a lawsuit in Georgia may, in the court's discretion, be compelled to give a deposition in Georgia. Warehouse Home Furn. Distrib., Inc. v. Davenport, 261 Ga. 853, 413 S.E.2d 195 (1992).

Applicable to deponents who must be subpoenaed.

- O.C.G.A. § 9-11-45 provides for treatment of deponents for whom subpoenas must be issued (i.e., witnesses) that is distinct from the treatment of the deponents for whom only a notice of deposition must be given (i.e., parties). Warehouse Home Furn. Distrib., Inc. v. Davenport, 261 Ga. 853, 413 S.E.2d 195 (1992).

Geographic limits in subsection (b) do not apply to parties.

- Holding in Blanton v. Blanton, 259 Ga. 622, 385 S.E.2d 672 (1989), concerning the geographic limitations of subsection (b) of O.C.G.A. § 9-11-45, is not applicable when a notice of deposition has issued to a party in the lawsuit. Warehouse Home Furn. Distrib., Inc. v. Davenport, 261 Ga. 853, 413 S.E.2d 195 (1992).

Motorist's suit was properly dismissed under O.C.G.A. § 9-11-37(d) due to the motorist's failure to attend three scheduled depositions. That defense counsel's office was located more than 30 miles from where the motorist resided did not excuse the motorist from attending a properly noticed deposition as the geographical limitations of O.C.G.A. § 9-11-45(b) were not applicable because a notice of deposition was issued under O.C.G.A. § 9-11-30 to a party in the lawsuit. Pascal v. Prescod, 296 Ga. App. 359, 674 S.E.2d 623 (2009).

Out-of-state resident cannot be compelled to come to Georgia for the purpose of taking a deposition. Blanton v. Blanton, 259 Ga. 622, 385 S.E.2d 672 (1989).

Non-resident judgment debtor.

- Trial court had jurisdiction to compel a non-resident judgment debtor to attend a postjudgment deposition in Georgia; under O.C.G.A. § 9-11-69, the judgment creditor was entitled to notice the deposition under O.C.G.A. § 9-11-30, and the geographical limitations of O.C.G.A. § 9-11-45 did not apply. Heard v. Ruef, 347 Ga. App. 1, 815 S.E.2d 607 (2018).

Subpoena properly quashed.

- Trial court properly quashed a deposition subpoena to an arbitrator as the trial court was authorized to find that the court could determine whether the arbitrator acted in disregard of the law on the record; the deposition of the arbitrator was not needed. Doman v. Stapleton, 272 Ga. App. 114, 611 S.E.2d 673 (2005).

Cited in Brown v. State, 238 Ga. 98, 231 S.E.2d 65 (1976); Norfolk S. Ry. v. Hartry, 316 Ga. App. 532, 729 S.E.2d 656 (2012); Howard v. Alegria, 321 Ga. App. 178, 739 S.E.2d 95 (2013).

ADVISORY OPINIONS OF THE STATE BAR

When subpoenas should issue.

- Subpoena issued pursuant to former O.C.G.A. § 24-10-22(a) (see now O.C.G.A. § 24-13-23) should only be issued for actual hearings and trials and should not be requested when in fact no hearing or trial had been scheduled. Likewise, a subpoena issued pursuant to O.C.G.A. § 9-11-45 of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) should be requested and issued only for depositions which have been actually scheduled by agreement between the parties or when a notice of deposition had been filed and served upon all parties, and should not be issued when no deposition had been scheduled. Adv. Op. No. 84-40 (September 21, 1984).

Notice of deposition required.

- O.C.G.A. § 9-11-45 provides that a subpoena shall issue for persons sought to be deposed and may command the person to produce documents. O.C.G.A. § 9-11-30(b)(1) requires notice to every other party of all depositions. Reading §§ 9-11-30 and9-11-45 together, it is obvious that before a subpoena can be issued, notice of the deposition must be given to all parties. Adv. Op. No. 84-40 (September 21, 1984).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Depositions and Discovery, § 203 et seq.

C.J.S.

- 26A C.J.S., Depositions, §§ 59, 60, 61. 27 C.J.S., Discovery, §§ 63, 66, 67. 98 C.J.S., Witnesses, § 21 et seq.

ALR.

- Subpoena duces tecum for production of items held by a foreign custodian in another country, 82 A.L.R.2d 1403.

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