Opinion
48658.
SUBMITTED OCTOBER 5, 1973.
DECIDED OCTOBER 30, 1973.
Action on insurance policy. Chatham Superior Court. Before Judge Harrison.
Adams, Adams, Brennan Gardner, Edward T. Brennan, for appellant.
Joseph B. Bergen, for appellee.
The trial judge abused his discretion in granting the motion for a protective order — solely on its unverified allegations and before the proposed deponent was asked the first question — enjoining the defendant from, inter alia, taking the deposition of the plaintiff's wife.
SUBMITTED OCTOBER 5, 1973 — DECIDED OCTOBER 30, 1973.
This is an appeal by the defendant insurance company (International), by way of certificate for immediate review, from a protective order enjoining it from taking the discovery deposition of the plaintiff's (Bowen's) wife.
On February 21, 1966, Bowen was sued by Dorothy Loretta Jackson b/n/f Dorothy Lee Jackson in the Superior Court of Chatham County for $25,000 for personal injuries allegedly sustained as a result of a fall from a truck being driven by Bowen. At the time of the alleged occurrence, Bowen was the owner of a policy of liability insurance issued by International. The insurance company refused to defend the suit brought against Bowen on the grounds (1) that Miss Jackson's injury was the result of Bowen's wilful and intentional tort, and (2) that between the date of the accident (July 8, 1965) and the date it was reported to the defendant (August 5, 1965), Bowen had pleaded guilty to driving under the influence and leaving the scene of an accident, and hence not covered under the liability policy. The case against Bowen was tried, and resulted in a $1,600 judgment against him. Bowen's complaint against International seeks recovery of that amount plus penalties and attorney fees. International timely filed various defenses and motions. Subsequently, in response to interrogatories, Bowen stated that, at the time of the occurrence involving Miss Jackson (July 8, 1965), he was married and is still married to Mrs. James W. Bowen. On March 1, 1973, International served notice on Bowen that it would take the deposition of Mrs. James W. Bowen at a particular time and place in the city of her residence. On March 8, 1973, Bowen's attorney presented to the trial court a motion for an order to protect the plaintiff from "the annoyance, embarrassment and oppression" that would result from the taking of his wife's deposition on the grounds that "she had nothing to do with any of the events that form any of the issues in this case and that she in fact does not even know about any of these events." The trial judge issued an ex parte rule nisi and temporary restraining order that same date.
On June 19, 1973, the defendant filed a response to the plaintiff's motion for protective order alleging that it had raised several defenses to the plaintiff's claim, including the defense that the judgment obtained against the plaintiff was the result of the plaintiff's having intentionally caused bodily injury and also that the plaintiff had breached the terms of the policy by failing to notify the defendant of the accident as soon as practicable as required by the policy and that the plaintiff, prior to notifying the defendant of the loss, entered a plea of guilty to driving under the influence and leaving the scene of the accident in the Recorder's Court of Chatham County, thus prejudicing the defendant in the defense of the civil case against the plaintiff. Said response further alleged that, at the time of the matters complained of, the plaintiff was married and is still married to Mrs. James W. Bowen of Little Rock, Arkansas, and the plaintiff and the said Mrs. Bowen were living together in Savannah, Georgia at the time of the matters complained of, and the defendant insurance company has no statement, letter, memorandum of interview or anything else with the said Mrs. James W. Bowen concerning what knowledge she has concerning the accident or the defenses raised by the defendant. The insurance company alleged that it desired, under the provisions of the Civil Practice Act, Code Ann. § 81A-126, to depose the said Mrs. James W. Bowen for purposes of discovery concerning matters not privileged which are relevant to the subject matter involved in the pending action as such discovery relates to the plaintiff's claim and the defenses raised by the defendant. The defendant further responded that if it was deemed embarrassing to the plaintiff's wife to be deposed then the defendant be permitted to interrogate or interview the said Mrs. Bowen by other means under such terms and conditions as seem just to the court.
On June 25, 1973, the court entered a protective order permanently enjoining the defendant from taking the deposition of Mrs. James W. Bowen "or from issuing any subpoena or notices to Mrs. James W. Bowen in connection" with the case.
The motion for protective order was not verified. No affidavit was submitted in its support nor was any evidence taken or heard in its connection. The motion was granted solely on the unverified allegations contained in the motion itself.
The issue presented goes to the very vitals of the discovery provisions of the Civil Practice Act.
Code Ann. § 81A-126 (c) (Ga. L. 1966, pp. 609, 635; 1967, pp. 226, 233; 1972, p. 510) allows the court to "make any order which justice requires to protect a party or a person from annoyance, embarrassment, oppression, or undue burden or expense." This is the method by which the courts can prevent abuses of the discovery process and insure that it is working properly. Agnor, Use of Discovery Under Ga. Civil Practice Act, § 5-16 and 5-17, pp. 121-126. "The broad purpose of the discovery rules, under the Civil Practice Act, is to enable the parties to prepare for trial so that each party will know the issues and be fully prepared on the facts. Discovery is specifically designed to fulfill a two-fold purpose: issue formulation and factual revelation. The use of the discovery process has been held to be broadly construed." Travis Meat Seafood Co. v. Ashworth, 127 Ga. App. 284, 285 ( 193 S.E.2d 166) and cits.
"The trial court does have a wide discretion in the entering of orders to prevent oppressive, unreasonable and unduly burdensome or harassing discovery by interrogatories. Herring v. R. L. Mathis c. Dairy Co., 121 Ga. App. 373 (2) ( 173 S.E.2d 716); Jackson v. Gordon, 122 Ga. App. 657 ( 178 S.E.2d 310); Hopkins v. Allen, 123 Ga. App. 330 ( 180 S.E.2d 919); Johnson v. O'Donnell, 123 Ga. App. 375 ( 181 S.E.2d 291). This court has also held that the trial court may exercise a discretion in requiring a witness to answer as to wholly irrelevant and immaterial matter, or as to matter concerning which full information is already at hand. Cochran v. Neely, 123 Ga. App. 500 ( 181 S.E.2d 511). The witness is entitled to be protected against harsh and insulting questioning. Code § 38-1704. He cannot be required to answer questions when the answer may tend to incriminate him. Mallin v. Mallin, 227 Ga. 833 ( 183 S.E.2d 377). Discovery should not be used oppressively. American Oil Co. v. Manpower, Inc., 124 Ga. App. 79 ( 183 S.E.2d 95). Code Ann. § 81A-130 (b) gives the trial court the authority to 'make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.'" Id., p. 287.
Present Code Ann. § 81A-126 (c) (Ga. L. 1966, pp. 609, 635; 1967, pp. 226, 233; 1972, p. 510).
The protective order issued by the trial judge stated: "The plaintiff's motion for protective order having come on to be heard and it appearing that there is no reason to take the deposition of the plaintiff's wife, who the record establishes was not present at any time involved in said occurrence and who had no knowledge of said occurrence, other than to annoy, embarrass, and oppress the plaintiff." As noted previously, no evidence was submitted in support of or in opposition to the motion.
Discovery is not limited to matters that are admissible in evidence at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Code Ann. § 81A-126 (b) (1) (Ga. L. 1966, pp. 609, 635; 1967, pp. 226, 233; 1972, p. 510). "[T]his procedure is to be given a liberal construction in favor of supplying a party with the facts underlying his opponent's case, and this without reference to whether the facts sought on discovery are admissible upon the trial of the action." Setzer's Super Stores v. Higgins, 104 Ga. App. 116, 120 ( 121 S.E.2d 305).
We are ever mindful of the rule that the extent of discovery and use of protective orders is generally within the discretion of the trial judge. However, this must be a sound and legal discretion based on evidence and a showing of good cause. Protective orders "should not be entered when the effect is to frustrate and prevent legitimate discovery." Travis Meat Seafood Co. v. Ashworth, 127 Ga. App. 284, supra, p. 288. Here, as in Travis, counsel could not have been held to have annoyed, embarrassed, or oppressed the proposed deponent, as he had not yet asked the proposed deponent his first question, unless it can be said that the taking of a discovery deposition from a litigant's spouse is always annoying, embarrassing, or oppressing. Such a position is too patently invalid to justify further comment. The contention by the plaintiff in his motion for protective order, that his wife "does not even know about any of these events," must obviously yield to the overriding policy of liberally construing the application of the discovery law. To hold otherwise would be to give every litigant an effective veto of his adversaries' attempts at discovery. Thus, could the president of a corporation involved in litigation make a similar statement as to the knowledge of a junior executive or employee in a motion for such a protective order and thereby successfully frustrate discovery? Obviously not.
"It is contemplated that the trial judge will exercise a sound and legal discretion in the grant or denial of protective orders. Such are intended to be protective — not prohibitive — and, until such time as the court is satisfied by substantial evidence that bad faith or harassment motivates the [discoveror's] action, the court should not intervene to limit [or prohibit] the scope of pretrial discovery." (Emphasis supplied.) Travis, supra, p. 288.
Judgment reversed. Eberhardt, P. J., and Pannell, J., concur.