Whisenaut v. Gray

Beasley, Judge.

We granted this interlocutory appeal to consider a discovery dispute and the intent of the Uniform Superior Court Rules regarding discovery procedures.

Plaintiff Whisenaut was involved in a collision and sued the driver of the vehicle involved and Ms. Gray, the vehicle owner. Gray was served on January 20, 1986. No answer was filed within 45 days (30 days per OCGA § 9-11-12 (a) plus 15 days per OCGA § 9-11-55 (a)) leaving her in default (OCGA § 9-11-55 (a)). Her motion to open the default was denied on November 21, 1986.

A notice of appearance was filed by her counsel on September 3. He filed interrogatories and requests for production on October 3, a “Defense to Damages” on November 26, and a Motion to Compel Discovery on November 12. Plaintiff raised various objections to this motion, including that defendant had failed to comply with USCR 5 and 6.4 (B). The triál court nevertheless granted defendant’s motion to compel, from which this appeal is taken. It is based solely on USCR 5, and that is all we consider.

1. USCR 5 provides that “[i]n order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within 6 months after the filing of the answer unless for cause shown the time has been extended or shortened by court order.” The USCR rules, enacted by the Supreme Court pursuant to Ga. Const. 1983, Art. VI, Sec. IX, Par. I, have the force and effect of law. Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734, 736 (1) (350 SE2d 265) (1986), aff'd 256 Ga. 739 (354 SE2d 160) (1987).

The issue is not whether one in default may engage in discovery at all, as argued by Gray; it may be done. See Taylor v. Stapp, 134 Ga. App. 468 (3) (215 SE2d 23) (1975). This does not, however, resolve the issue of the failure to comply with the Rules.

The objective of the Rules is “to provide for the speedy, efficient and inexpensive resolution of disputes ...” with some uniformity throughout the judicial system, as stated in the authorizing constitutional provision. One device for achieving this is Rule 5’s cap on the period of time within which parties may engage in discovery. As any attorney engaged in litigation can attest, discovery can be and often is the most time consuming part of civil litigation.

The “answer” chosen by Rule 5 as the beginning point of the discovery period is plainly that pleading allowed in response to the complaint which initiates litigation. OCGA § 9-11-7 (a). It is this pleading which joins issue, including any with regard to damages. It does not encompass that “pleading” referred to in OCGA § 9-11-55 (a), as argued by defendant. The only purpose of the latter is to allow the defaulting party an opportunity to try the issue of damages to a jury.

The six-months’ period for discovery with aid of the court’s compulsory process is not unrealistically inflexible, since the Rule provides for extension or shortening of this period by court order obtained during it. No additional or other latitude is given if the defendant goes into default. The time period is to be measured from either the day the answer is actually filed or the 45th day after service on the defendant, the last day on which an answer may legally be filed without obtaining a discretionary extension from the court. If an extension is obtained, of course, then the period would be measured from the day the answer is actually filed within that extension.

It was not possible, as argued by defendant, for the court to “impliedly” extend the six-month period after its expiration. This is so because, for one thing, Rule 5 provides that the period may be extended only “for cause shown.” No such showing of any cause is contained in the record before us.

Defendant was served and opted to do nothing for over seven months, when a counsel appearance was filed. The time periods are not computed from counsel’s appearance, but from legal notice to the party of the suit. By lagging, defendant lost the benefit of the court’s compulsory process.

Certainly the trial court has broad discretion over discovery procedures, see Shannon v. Huntley's Jiffy Stores, 174 Ga. App. 125 (1) (329 SE2d 208) (1985), but that discretion may not be exercised in violation of the Rules. See Jack Eckerd Drug Co. v. Covington, 183 Ga. App. 164, 165 (358 SE2d 311) (1987). Therefore, the order of the trial court compelling discovery from plaintiff outside the six-month period must be reversed.

2. This ruling makes unnecessary the consideration of the remaining enumeration.

Judgment reversed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., and Banke, P. J., concur. Carley, Sognier, Pope, and Benham, JJ., dissent.