Norfolk S

Ry. v. Thompson, 208 Ga. App. 240, 430 S.E.2d 371 (1993). Witness statement generated by plaintiff ’s and attorney’s joint interview. — When an attorney and the plaintiff jointly interviewed a witness shortly before suit was filed and in contemplation of the litigation, the statement generated thereby comes within the definition of work product. McMillan v. GMC, 122 Ga. App. 855, 179 S.E.2d 99 (1970). Written statements and memoranda in attorney’s files. — Party is not entitled to discovery of written statements in the files of the attorney for the adverse party and of memoranda made by that attorney in anticipation of the litigation, absent a showing of necessity for production of such material or a demonstration that denial of production would cause hardship or injustice. Setzers Super Stores of Ga., Inc. v. Higgins, 104 Ga. App. 116, 121 S.E.2d 305 (1961) (decided under former Code 1933, Ch. 21, T. 38). Failure to make proper inquiry on transcripts. — In a medical malpractice suit, the trial court erred by summarily determining that witness interview transcripts were not statutorily protected work product and ordered their production because the court failed to make any inquiry into the content of the transcripts and made no findings or conclusions with regard to the husband’s need or hardship as required by O.C.G.A. § 9-11-26(b)(3). Wellstar Health Sys. v. Jordan, 293 Ga. 12, 743 S.E.2d 375 (2013). Accident investigation. — Work product immunity is not extended to 436 statements obtained by claim agents or investigators, even though obtained under supervision of the defendant’s counsel, when such statements are routinely obtained as a standard practice of investigating accidents in which it or its servants and agents may be involved while performing its functions. Atlantic Coast Line R.R. v. Gause, 116 Ga. App. 216, 156 S.E.2d 476 (1967) (decided under former Code 1933, § 38-2109). In a suit based on an explosion and fire in a cold storage warehouse facility during the installation of a compressor engine, a contractor was entitled to disclosure of the facility owner’s accident report, which was prepared after an accident investigation conducted by the owner’s personnel because the report was not protected by the work-product doctrine under O.C.G.A. § 9-11-26(b)(3) since the report was not prepared in anticipation of litigation, but in the regular course of business in accordance with internal policies and applicable government regulations. Alta Refrigeration, Inc. v. AmeriCold Logistics, LLC, 301 Ga. App. 738, 688 S.E.2d 658 (2009). Crash test documents from prior litigation. — In a negligence suit involving the death of an individual in an automobile collision, a trial court did not abuse the court’s discretion by ordering the production of crash-test documents relating to prior litigation from an auto manufacturer as the plaintiff showed a substantial need for the requested documents since the requested evidence documented past car-to-car crash tests conducted by the auto manufacturer on a line of vehicles that included similar fuel tank locations and performance as the vehicle that was being driven by the decedent; the trial court properly concluded that the plaintiff could not obtain the substantial equivalent of the crash tests absent undue hardship since the plaintiff could not generate rear car-to-car crash tests that would have established the auto manufacturer’s knowledge of dangers presented by the manufacturer’s vehicle in rear car-to-car crashes; and the trial court ordered an in camera review of the documents with which the auto manufacturer refused to comply. Ford Motor Co. v. Gibson, 283 Ga. 398, 659 S.E.2d 346 (2008). 9-11-26 Substantial and undue hardship. — In order to discover documents, statements, and other tangible items of evidence developed by one party in preparation for litigation, the moving party must show affirmatively that the moving party has a substantial need for such evidence in the preparation of the case and that it would cause an undue hardship upon the moving party to develop that evidence by means other than extraction from the files of the opposing party; if the trial court is satisfied that the required showing has been made, the court may order the production, after an in-camera examination (or other acceptable agreement between the parties) with a view toward protecting against the disclosure of mental impressions, conclusions, opinions, or legal theories. Georgia Int’l Life Ins. Co. v. Boney, 139 Ga. App. 575, 228 S.E.2d 731 (1976). Documents, statements, and other tangible items of evidence developed by one party in preparation for litigation are discoverable by the other party only in carefully limited circumstances; the moving party must show affirmatively that the moving party has a substantial need for such evidence in the preparation of the case and that it would cause an undue hardship upon the moving party to develop that evidence by means other than extraction from the files of the opposing party. Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985). In order to compel the production of trial preparation material developed in anticipation of litigation, the movant must show affirmatively that the movant has a substantial need for such evidence in the preparation of the movant’s case and that it would cause an undue hardship upon the movant to develop that evidence by means other than extraction from the files of the opposing party. Lowe’s of Ga., Inc. v. Webb, 180 Ga. App. 755, 350 S.E.2d 292 (1986). Necessity must be shown. — Without some showing of necessity therefor, an attorney is not required to produce and make available to the attorney for the adverse party the attorney’s ‘‘work product,’’ including statements that the attorney may have obtained from witnesses or memoranda that the attorney may have 437 Trial Preparation Materials (Cont’d) made in anticipation of the litigation. Setzers Super Stores of Ga., Inc. v. Higgins, 104 Ga. App. 116, 121 S.E.2d 305 (1961) (decided under former Code 1933, Ch. 21, T. 38). Party seeking discovery of work product must then show necessity or justification before being entitled to discovery. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-2109). Burden on movant to make requisite showing. — In order to require production of a work product item, there must be a showing of more than ‘‘good cause’’; a showing of ‘‘necessity and justification,’’ which is of a higher order than the good cause requirement, must be made, and the burden is on the movant to do so. McMillan v. GMC, 122 Ga. App. 855, 179 S.E.2d 99 (1970). Burden on party claiming privilege. — Party wishing to claim protection of the work-product privilege has the burden of showing the document or other item was prepared in anticipation of litigation. GMC v. Conkle, 226 Ga. App. 34, 486 S.E.2d 180 (1997). To avoid injustice or hardship. — Showing required for discovering any portion of attorney’s work product is of a higher order than that of ‘‘good cause’’ required in other instances, and should be such as to lead the court to conclude that only by allowing discovery may manifest injustice be averted or an intolerable hardship prevented. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-2109). In order to require production of a work product item, a movant must demonstrate that a denial of the movant’s motion will result in manifest injustice or intolerable hardship. McMillan v. GMC, 122 Ga. App. 855, 179 S.E.2d 99 (1970). Failure of court to require establishment of substantial need and undue hardship. — When a party has carried the party’s burden of showing material sought was obtained in anticipation of litigation, it becomes incumbent upon the trial court to require the other 9-11-26 party to satisfy the second test established by the discovery statute; i.e., to show a substantial need and undue hardship in the development of the information sought. If the trial court does not do so, the judgment will be reversed and the record remanded to the trial court to add in the court’s order the court’s finding as to the second phase of the discovery of protected trial preparation material. Lowe’s of Ga., Inc. v. Webb, 180 Ga. App. 755, 350 S.E.2d 292 (1986). Failure of court to decide whether work product doctrine applied. — In a discovery dispute with a corporation claiming that the work-product doctrine barred discovery of information, the trial court erred under O.C.G.A. § 9-11-26(b)(3) in ordering the corporation to provide information without first deciding whether the work-product doctrine or waiver applied. McKesson HBOC, Inc. v. Adler, 254 Ga. App. 500, 562 S.E.2d 809 (2002). Transcript of prior traffic court proceedings discoverable. — Personal injury action defendants were entitled to discovery of the transcript of prior traffic court proceedings in which the defendants testified and were cross-examined as to issues bearing vitally upon their alleged liability in the subsequent civil case. Truitt v. Mason, 189 Ga. App. 24, 374 S.E.2d 771, cert. denied, 189 Ga. App. 913, 374 S.E.2d 771 (1988). Statements of employees to supervisor and insurance adjuster. — When a store owner showed that from the very beginning the owner was aware that an adversarial action was forthcoming, in the face of hotly disputed fault, it substantially established that the statements given by the owner’s employees to their supervisor and an insurance adjuster before suit was filed met the statutory criteria of having been taken in contemplation of litigation or trial. Lowe’s of Ga., Inc. v. Webb, 180 Ga. App. 755, 350 S.E.2d 292 (1986). Conflict over availability of document. — When parties are unable to resolve a conflict concerning what portions of a document containing both facts and legal theories should be made available to an adverse party, the parties shall 438 9-11-26 submit the disputed document to the trial court along with their argument concerning which portions should be made available to the adverse party. The trial court shall then conduct an in camera inspection of the document and instruct the attorney claiming work product protection how the document should be altered for disclosure to the adverse party. McKinnon v. Smock, 209 Ga. App. 647, 434 S.E.2d 92 (1993). Creation of issues. — Written claim and demand for payment outside the terms of the contract in response to a claim created the materials at issue. Department of Transp. v. Hardaway Co., 216 Ga. App. 262, 454 S.E.2d 167 (1995). Discovery of material through use of deposition barred. — In an action arising from an automobile accident, when the defendant failed to demonstrate that the defendant had a substantial need for a statement of the plaintiff taken by an adjuster for the plaintiff ’s insurance carrier and would face undue hardship in obtaining substantially equivalent information elsewhere, the defendant could not require production of the statement at a deposition, nor require the adjuster to testify during deposition as to the content of the statement. Sturgill v. Garrison, 219 Ga. App. 306, 464 S.E.2d 902 (1995). File of previous attorney. — Attorney’s contention that a former client’s attorney’s attempt to obtain documents directly related to the pending divorce action and prepared in anticipation thereof should have been brought in a separate legal action was rejected under O.C.G.A. § 9-11-26(b) as the file was sought for purposes of the same pending divorce action for which the file was compiled in the first place; the trial court made an express finding that the client and the client’s new attorney needed possession of the file in order to adequately present the client’s claim, which was ongoing and still within the jurisdiction of the trial court. Mary A. Stearns, P.C. v. Williams-Murphy, 263 Ga. App. 239, 587 S.E.2d 247 (2003). Attorney’s defense to the trial court’s order holding the attorney in contempt for the attorney’s refusal to turn over a client’s file challenging the underlying valid- ity of the prior order requiring the attorney to turn over the file was a collateral attack that could be sustained under O.C.G.A. § 9-11-60(a) only if the prior order was void on the order’s face. However, the trial court’s prior order was not void on the order’s face since: (1) the attorney was served with a motion to compel prior to the entry of the prior order; (2) the trial court had jurisdiction to issue an order to compel a nonparty to release necessary non-privileged documents specifically prepared in anticipation of a divorce action pending before the trial court under O.C.G.A. §§ 9-11-26(b), 9-11-34(c)(1), and 9-11-37(a); (3) the attorney willfully disregarded the prior order; and (4) the prior order was entered in a matter over which the trial court had subject matter jurisdiction, making disobedience of the order contempt of court. Mary A. Stearns, P.C. v. Williams-Murphy, 263 Ga. App. 239, 587 S.E.2d 247 (2003). Experts Only general description of experts, not actors or observers, required. — As to expert witnesses who were not actors or observers, a very general summary of scientific or professional grounds is sufficient under subdivision (b)(4)(A)(i) of O.C.G.A. § 9-11-26, since the opponent has further discovery through full depositions and cross-examinations. Candler Gen. Hosp. v. Joiner, 180 Ga. App. 455, 349 S.E.2d 756 (1986). In a medical malpractice action, subdivision (b)(4)(A)(i) of O.C.G.A. § 9-11-26 did not apply to physician witnesses whose knowledge and opinions arose from personal involvement with the decedent. McNabb v. Landis, 223 Ga. App. 894, 479 S.E.2d 194 (1996). Applicability of O.C.G.A. § 9-11-26(b)(4)(A)(i). — In a medical malpractice case, when an expert’s opinions arose from the expert’s involvement as one of the patient’s treating physicians, and not in anticipation of litigation, the expert’s testimony did not fall within the ambit of O.C.G.A. § 9-11-26(b)(4)(A)(i). Yang v. Smith, 316 Ga. App. 458, 728 S.E.2d 794 (2012). 439 Experts (Cont’d) Applicability of O.C.G.A. § 9-11-26(b)(4)(A)(ii). — O.C.G.A. § 9-11-26(b)(4)(A)(ii), relating to payment of fees for obtaining discovery from witnesses, applies to all discovery obtained from an expert in anticipation of litigation or trial. Polston v. Levine, 171 Ga. App. 893, 321 S.E.2d 350 (1984). Deposing party to pay fees unless manifest injustice would result. — O.C.G.A. § 9-11-26(b)(4)(A)(ii) and (b)(4)(C)(ii), when read together, require that a party pay the reasonable fees of any expert it deposes or redeposes, unless doing so would create manifest injustice; in other words, a trial court is not entitled to shift the payment of the expert’s fees to the other party unless the deposing party demonstrates that shifting the fees is necessary to avoid a manifest injustice. In order to determine whether the party seeking to shift fees has met the party’s burden on this issue, the trial court needs to consider and weigh factors including the possible hardships imposed on the respective parties, the need for doing justice on the merits between the parties, whether a party is indigent, and the need for maintaining orderly and efficient procedural arrangements. Barnum v. Coastal Health Servs., 288 Ga. App. 209, 653 S.E.2d 816 (2007), cert. denied, 2008 Ga. LEXIS 227 (Ga. 2008). Continuing jurisdiction over fee controversies. — Controversies concerning expert-witness fees will be resolved by the trial court in proceedings ancillary to the litigation in which the fees arise, and the dismissal of the main action does not divest the trial court of jurisdiction to rule on a motion to compel payment. Polston v. Levine, 171 Ga. App. 893, 321 S.E.2d 350 (1984). Accident investigator was not an ‘‘expert’’ with regard to the investigator’s observations of the plaintiff in an automobile negligence case. Jones v. Scarborough, 194 Ga. App. 468, 390 S.E.2d 674 (1990). Expert appraisal of condemned land not discoverable. — Discovery is not designed in land condemnation cases to force production of information relating 9-11-26 to a party’s expert appraisal of the property to be condemned. Thornton v. State Hwy. Dep’t, 113 Ga. App. 351, 148 S.E.2d 66 (1966) (decided under former Code 1933, §§ 38-2105 and 38-2108). In a land condemnation case, a transportation department could not compel discovery from a landowner’s former expert because the expert had withdrawn from the case, the landowner stipulated that the landowner would not use the expert’s information, and the transportation department showed no exceptional circumstances warranting an order compelling discovery of the expert’s information. DOT v. Bacon Farms, L.P., 270 Ga. App. 862, 608 S.E.2d 305 (2004). Statements of employee to city appraiser. — In a condemnation proceeding, when a city’s witness not only directly supported the city’s main contention, that a landowner’s property could not be developed or removed from the flood plain, but the city’s appraiser based a valuation on the witness’s representations to that effect, the witness’s testimony was critical, and the landowner had a right to interview the witness, check the facts to which the witness would testify, and, if indicated, arrange to secure rebuttal evidence or impeach the witness. Shepherd Interiors v. City of Atlanta, 263 Ga. App. 869, 589 S.E.2d 640 (2003). Expert’s testimony excluded for rules’ violation. — Trial court did not abuse the court’s discretion to impose the sanction of exclusion of an expert’s testimony for the violation of the rules of discovery. Heyde v. Xtraman, Inc., 199 Ga. App. 303, 404 S.E.2d 607, cert. denied, 199 Ga. App. 906, 404 S.E.2d 607 (1991). Refusal to allow expert to testify when notice not given. — When defendants did not give the plaintiffs prior notice that an accident reconstruction expert would testify concerning the use of seat belts, the trial court did not abuse the court’s discretion by refusing to allow the defendants’ expert to testify concerning a subject matter not revealed to the plaintiffs. Jones v. Livingston, 203 Ga. App. 99, 416 S.E.2d 142 (1992). Expert testimony admitted when on ‘‘may call’’ list. — In a medical malpractice action against a pediatrician and 440 9-11-26 a hospital, when the pediatrician settled and the hospital did not, experts subpoenaed to testify on behalf of the pediatrician could be called to testify on behalf of the hospital because the experts were listed by the hospital as ‘‘may call’’ witnesses on the pretrial order, pursuant to O.C.G.A. § 9-11-26(b)(4)(A)(i), there were no hard and fast rules about the discovery period in the case, and, having deposed these witnesses, the party objecting to the witnesses being called could not claim surprise from the witnesses’ testimony. Gill v. Spivey, 264 Ga. App. 723, 592 S.E.2d 132 (2003). Correspondence from attorney to expert protected. — One seeking discovery of facts known and opinions held by an expert acquired or developed in anticipation of litigation or for trial may do so without exhibiting a substantial need for the material and without establishing that undue hardship will result should the seeker have to employ other means to develop the evidence. McKinnon v. Smock, 264 Ga. 375, 445 S.E.2d 526 (1994). Discovery seeking facts known and opinions held by an expert is subject to the provision of subsection (b)(3) of O.C.G.A. § 9-11-26 against disclosure of mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation. Thus, correspondence from an attorney to an expert is protected from disclosure to the extent the correspondence contains the opinion work product of the attorney. McKinnon v. Smock, 264 Ga. 375, 445 S.E.2d 526 (1994). Experts previously identified as fact witnesses. — Trial court did not err by admitting the testimony of four expert witnesses because the witnesses were previously identified as fact witnesses and the supplemental responses in discovery were in compliance with the express terms of the discovery requests, O.C.G.A. § 9-11-26, and a pretrial order. LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App. 641, 703 S.E.2d 85 (2010). Expert testimony properly excluded. — Trial court did not err in excluding the testimony of a medical examiner because the testimony a decedent’s relatives sought to elicit went beyond the matters the medical examiner personally performed or observed and into the area of opinion testimony based upon a hypothetical posed by the questioner; the relatives failed to disclose the proffered expert testimony in pretrial discovery, and the disputed expert testimony was cumulative of the opinion testimony of another expert witness. Hewell v. Trover, 314 Ga. App. 738, 725 S.E.2d 853 (2012). Protective Orders Protective orders may be obtained to avoid disclosure of trade secrets, prevent harassment, embarrassment, oppression, or limit the scope of discovery. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-2101). Protective orders 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 discoverer’s action, the court should not intervene to limit or prohibit the scope of pretrial discovery. International Serv. Ins. Co. v. Bowen, 130 Ga. App. 140, 202 S.E.2d 540 (1973); Bridges v. 20th Century Travel, Inc., 149 Ga. App. 837, 256 S.E.2d 102 (1979). Protective orders should not be entered to frustrate legitimate discovery. — Protective orders should not be entered when the effect is to frustrate and prevent legitimate discovery. Snead v. Pay-Less Rentals, Inc., 134 Ga. App. 325, 214 S.E.2d 412 (1975); Bridges v. 20th Century Travel, Inc., 149 Ga. App. 837, 256 S.E.2d 102 (1979). Issuance of order as recognition of need to protect. — Issuance of a protective order is a recognition of the fact that in some circumstances the interest in gathering information must yield to the interest in protecting a party or person from annoyance, embarrassment, oppression, or undue burden. Borenstein v. Blumenfeld, 151 Ga. App. 420, 260 S.E.2d 377 (1979). Good cause prerequisite to protective order. — Good cause required for grant of protective order must be clearly and specifically demonstrated; it will not 441 Protective Orders (Cont’d) appear from stereotyped and conclusory statements. Millholland v. Oglesby, 115 Ga. App. 715, 155 S.E.2d 672 (1967) (decided under former Code 1933, § 38-2105). Good cause for the issuance of a protective order designed to frustrate discovery must be clearly demonstrated; such cause is not established by stereotyped or conclusional statements, bereft of facts. Young v. Jones, 149 Ga. App. 819, 256 S.E.2d 58 (1979). Issuance of a protective order must be based on something other than a conclusory allegation by the state’s attorney to the effect that any and all requested discovery would prejudice a criminal investigation. Christopher v. State, 185 Ga. App. 532, 364 S.E.2d 905 (1988). Trial court did not abuse the court’s discretion in determining that the defendants provided good cause entitling the defendants to a qualified protective order by arguing that the defendants should be granted the right to conduct ex parte interviews with the decedent’s health care providers since the defendants were entitled to equal access to potential trial witnesses, the defendants would protect the attorney work-product, and would be more efficient and less costly than formal depositions or joint meetings with plaintiffs’ counsel. Harris v. Tenet Healthsystem Spalding, Inc., 322 Ga. App. 894, 746 S.E.2d 618 (2013). Failure to obtain protective order. — Defendants’ discovery violations were willful when the defendants withheld certain documents in order to ‘‘test their position,’’ and as the defendants had not sought a protective order under O.C.G.A. § 9-11-26, but instead violated the trial court’s orders compelling discovery by withholding the documents the defendants claimed were objectionable, the defendants’ failure to comply with discovery orders was not excused; thus, it was a proper sanction under O.C.G.A. § 9-11-37 to strike the defendants’ arbitration defenses. Ga. Cash Am., Inc. v. Strong, 286 Ga. App. 405, 649 S.E.2d 548 (2007), cert. denied, 2007 Ga. LEXIS 709 (Ga. 2007). Duty to attend deposition despite request for protective order. — Merely 9-11-26 filing motions for a protective order did not relieve the plaintiffs from the duty to appear at the plaintiffs’ depositions. Moreover, even if the plaintiffs could have prevailed on motions to compel more complete responses to their discovery efforts, this did not excuse the plaintiffs from the duty to attend the plaintiffs’ depositions. It follows that the trial court correctly concluded that nothing the plaintiffs asserted in the plaintiffs’ motions for a protective order provided a legal basis for the court to exercise the court’s discretion to relieve the plaintiffs from the duty to appear at the plaintiffs’ depositions. Rice v. Cannon, 283 Ga. App. 438, 641 S.E.2d 562 (2007). Fifth Amendment claim denied. — Denial of an accused’s motion for a protective order under O.C.G.A. § 9-11-26(c) was affirmed as the Fifth Amendment could not be used to justify a protective order to stay all discovery in the accused’s civil forfeiture proceeding under O.C.G.A. § 16-14-7 pending the conclusion of the accused’s criminal Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., case; while the privilege against self-incrimination extends to answers creating a ‘‘real and appreciable’’ danger of establishing a link in the chain of evidence needed to prosecute, the trial court has to determine if the answers could incriminate the witness, and if the trial court determines that the answers could not incriminate the witness, the witness has to testify or be subject to the court’s sanction. Chumley v. State of Ga., 282 Ga. App. 117, 637 S.E.2d 828 (2006). Relevant records not subject to protection. — In an action against a personal care home alleging negligent supervision of a resident of the home, records of incidents and accidents involving other residents were relevant and the trial court properly denied the defendant’s motion for a protective order covering the records. Apple Inv. Properties, Inc. v. Watts, 220 Ga. App. 226, 469 S.E.2d 356 (1996). In a personal injury case, a trial court did not abuse the court’s discretion by compelling a railway company to provide discovery of information on an event data recorder because the information was rel- 442 evant under O.C.G.A. § 9-11-26(b)(1), and a producing party could have been required to translate information into a reasonably usable form. The trial court did not abuse the court’s discretion by failing to grant the protective order since there was no undue burden or expense given the crucial nature of the evidence; moreover, the cost of a license required to view the information was minor compared to the amount at stake in the lawsuit, and it was the railway company’s decision to install the device. Norfolk S. Ry. v. Hartry, 316 Ga. App. 532, 729 S.E.2d 656 (2012). Protective order under Health Insurance Portability and Accountability Act. — Trial court did not err in granting a hospital’s motion for a qualified protective order under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), to conduct ex parte interviews with a patient’s health care providers because the hospital complied with 45 C.F.R. § 164.512(e)(1)(ii)(B), and any ex parte interviews conducted pursuant to the qualified protective order would be permitted under HIPAA; because the order prohibited the use or disclosure of the patient’s health information for purposes other than the litigation and required the return or destruction thereof at the conclusion of the proceedings, it constituted a qualified protective order as defined in § 164.512(e)(1)(v). Baker v. Wellstar Health Sys., 288 Ga. 336, 703 S.E.2d 601 (2010). Protective order permitting a hospital to conduct ex parte interviews with a patient’s health care providers was too broad regarding the scope of information that could be disclosed because the order should have limited the hospital’s inquiry to matters relevant to the medical condition the patient had placed at issue; under former O.C.G.A. § 24-9-40(a) (see now O.C.G.A. § 24-12-1), a litigant can waive the right to medical privacy under Georgia law only to the extent such information was relevant to the medical condition the litigant had placed in issue in the legal proceeding. Baker v. Wellstar Health Sys., 288 Ga. 336, 703 S.E.2d 601 (2010). Habeas proceeding. — To protect a habeas petitioner’s constitutional right to effective assistance of counsel and against 9-11-26 compelled self-incrimination, the petitioner was entitled to a protective order limiting disclosure of the former counsel’s files in the proceeding to persons needed to assist in rebutting the petitioner’s claim of ineffectiveness. Waldrip v. Head, 272 Ga. 572, 532 S.E.2d 380 (2000). Absent showing of need to protect witness from annoyance, embarrassment, or oppression, a trial court abuses the court’s discretion in restricting the broad use of discovery. Europa Hair, Inc. v. Browning, 133 Ga. App. 753, 212 S.E.2d 862 (1975). Burden is on party served with interrogatories to show why the interrogatories should not be answered. Clarkson Indus., Inc. v. Price, 135 Ga. App. 787, 218 S.E.2d 921 (1975), overruled on other grounds, Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539, 330 S.E.2d 768 (1985). Application for protective order to avoid sanctions for failure to respond. — In order to avoid sanctions for not responding to interrogatories, one must apply for a protective order under subsection (c) of this section. Sneider v. English, 129 Ga. App. 638, 200 S.E.2d 469 (1973). Expense and trouble not sufficient to avoid answering. — Fact that answering interrogatories will entail expense and trouble to witness or the witness’s employer is not sufficient to escape the requirement of making answer; it is only when the court is satisfied that an undue burden will result that objections should be sustained on that basis. Sorrells v. Cole, 111 Ga. App. 136, 141 S.E.2d 193 (1965) (decided under former Code 1933, § 38-2106). Extent of discovery and use of protective orders is generally within discretion of trial judge. Bullard v. Ewing, 158 Ga. App. 287, 279 S.E.2d 737 (1981). Discretion of court. — Trial court has wide discretion in entering orders to prevent discovery which is oppressive, unreasonable, unduly burdensome or expensive, harassing, harsh, insulting, annoying, embarrassing, incriminating, or directed to wholly irrelevant and immaterial or privileged matter, or as to matter concerning which full information is already at 443 Protective Orders (Cont’d) hand. Snead v. Pay-Less Rentals, Inc., 134 Ga. App. 325, 214 S.E.2d 412 (1975); Young v. Jones, 149 Ga. App. 819, 256 S.E.2d 58 (1979). Trial court has wide discretion in entering orders to prevent oppressive, unreasonably and unduly burdensome, or harassing discovery by interrogatories. Travis Meat & Seafood Co. v. Ashworth, 127 Ga. App. 284, 193 S.E.2d 166 (1972); International Serv. Ins. Co. v. Bowen, 130 Ga. App. 140, 202 S.E.2d 540 (1973). Trial judge should exercise sound and legal discretion in the grant or denial of protective orders under subsection (c) of this section. International Serv. Ins. Co. v. Bowen, 130 Ga. App. 140, 202 S.E.2d 540 (1973); Bridges v. 20th Century Travel, Inc., 149 Ga. App. 837, 256 S.E.2d 102 (1979). Discretion to be based on evidence and good cause. — Extent of discovery and use of protective orders is generally with the discretion of the trial judge but this must be a sound and legal discretion based on evidence and a showing of good cause. Bridges v. 20th Century Travel, Inc., 149 Ga. App. 837, 256 S.E.2d 102 (1979). Court must be satisfied by substantial evidence. — 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. Bullard v. Ewing, 158 Ga. App. 287, 279 S.E.2d 737 (1981). When trial court passed upon merits of motion for protective order at a hearing, denying the motion, it must be assumed, in the absence of a transcript of that hearing, that the court properly exercised the court’s discretion in refusing to issue the protective order. Young v. Jones, 149 Ga. App. 819, 256 S.E.2d 58 (1979). Grant of protective order abuse of discretion. — Trial court abused the court’s discretion in granting the mother’s motion for a protective order, thereby prohibiting the father from taking the deposition of a female child the father was accused of molesting, under any circumstance because the child’s testimony was 9-11-26 clearly relevant to the father’s efforts to defend against the mother’s motion for modification of custody. Galbreath v. Braley, 318 Ga. App. 111, 733 S.E.2d 412 (2012). Interests of justice do not require production of tax returns, in the face of a motion for a protective order, when other discovery methods are available to obtain the same information. Borenstein v. Blumenfeld, 151 Ga. App. 420, 260 S.E.2d 377 (1979). Protective order against state agency. — Trial court did not err in finding that the APA governed a declaratory judgment action filed against a state agency, and that sovereign immunity barred any further discovery, pursuant to O.C.G.A. § 50-13-10; hence, as a result, when plaintiff consultant failed to comply with § 50-13-10, the trial court could do no more than to grant the agency a protective order, and could not take any action beyond that, including declaring that the Department of Community Health’s rules regarding health benefits could not be challenged. Live Oak Consulting, Inc. v. Dep’t of Cmty. Health, 281 Ga. App. 791, 637 S.E.2d 455 (2006). Time for applying for order. — Application or motion for a relieving or modifying order should be presented as soon as the party or deponent learns that such an order is needed. Millholland v. Oglesby, 115 Ga. App. 715, 155 S.E.2d 672 (1967) (decided under former Code 1933 § 38-2105). Repetition of order unnecessary prior to imposing sanctions. — When a court orders one party to permit discovery pursuant to subsection (c) of O.C.G.A. § 9-11-26, upon that party’s willful failure to comply with the court’s order, the party seeking sanctions need not move the court pursuant to O.C.G.A. § 9-11-37(a) to repeat the court’s order before proceeding to move the court pursuant to § 9-11-37(b) for the imposition of sanctions. Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 353 S.E.2d 548 (1987). Motion improper for quashing or enforcement of notice to produce. — Motions pursuant to O.C.G.A. §§ 9-11-26, 9-11-34, and 9-11-37 for a protective order or sanctions were not proper vehicles for 444 the quashing or the enforcement of a notice to produce under former O.C.G.A. § 24-10-26 (see now O.C.G.A. § 24-13-27). Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 353 S.E.2d 548 (1987). Ex parte order without showing of cause unauthorized. — Court order that a deposition shall not be taken, entered without motion seasonably made, without notice, and without any cause shown by the plaintiff or the plaintiff ’s counsel, is an unauthorized order prejudicial to the preparation of the defendant’s defense. Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115 (1961) (decided under former Code 1933, § 38-2105). Trial court’s refusal to enter a protective order was proper because the opponent of the discovery did not show any of the grounds for such a motion specified in O.C.G.A. § 9-11-26(c), but merely objected that the discovery was untimely. Simmons v. Cmty. Renewal & Redemption, LLC, 286 Ga. 6, 685 S.E.2d 75 (2009). Appeal from denial of motion not to be made by one not involved in case below. — When appeal from denial of a motion for a protective order in regard to answering certain interrogatories and taking of a deposition in a civil suit is pursued by one who was neither a party to the case below nor the person from whom 9-11-26 discovery was sought, the appeal is properly dismissed for lack of standing. State v. Upton, 160 Ga. App. 442, 287 S.E.2d 263 (1981). Supplementation of Responses Failure to claim surprise from late supplemental response waives tardiness. — When an amended response to the condemnee’s interrogatories was hand-delivered to the condemnee on the date of the trial, in which the condemnor updated the appraisal, surprising the condemnee, but the condemnee did not claim surprise at trial, but, instead, proceeded with the case, pointing out this last-minute change to the jury in opening remarks and vigorously and thoroughly cross-examined witnesses as to this updated appraisal, there was no reversible error. Morrison v. DOT, 166 Ga. App. 144, 303 S.E.2d 501 (1983). Expert not required to supplement responses in deposition. — Defendant’s expert in a products liability case was not required to supplement responses to question given in a deposition prior to trial since the expert had not been asked the specific discovery questions that were covered by the expert’s testimony at the trial. Murphy v. Concrete Placement Sys., 215 Ga. App. 284, 450 S.E.2d 312 (1994).