The Court of Appeals clarified that O.C.G.A. § 9-11-37 (a) (4), which authorizes an award of attorney’s fees in connection with a motion to compel discovery, applies to nonparties, however, O.C.G.A. § 9-11-37 (b) (2), which authorizes an award of attorney’s fees as sanctions for violating discovery orders, does not apply to nonparties. NRD Partners II, L.P. v. Quadre Investments, L.P., A22A0595, 2022 WL 2383704 (July 1, 2022).
FACTS:
In NRD Partners, the defendant, Quadre, served requests to produce documents on nonparty NRD. Id. at *1. NRD objected to the scope of the request. Id. In July 2019, Quadre filed a motion to compel. Id. After briefing and a hearing on that motion, the trial court ordered NRD to produce documents by September 23, 2019. Id. at *2. However, that order, which was seemingly prepared by both parties, narrowed the documents ordered to be compelled from that which was requested to be compelled. Id. Quadre then filed a motion for compel against NRD stating they did not timely comply with the trial Court’s Order compelling documents. Id. On February 5, 2020, the trial court ordered NRD to supplement its production. Id. Quadre filed two more supplemental briefs in support of its motion for contempt after NRD continued to disobey the trial court’s order. Id. In September 2020, the trial court awarded attorney’s fees under both O.C.G.A. § 9-11-37 (a) (4) and O.C.G.A. § 9-11-37 (b) (2). Id.
LAW & ANALYSIS
NRD argued on appeal that O.C.G.A. § 9-11-37 (a) (4) and O.C.G.A. § 9-11-37 (b) (2) do not allow for attorney’s fees to be granted against non-parties.
Generally, “an award of attorney fees in Georgia must be authorized by statute or contract.” Bishop v. Goins, 305 Ga. 310, 311, 824 S.E.2d 369 (2019). “Inasmuch as attorney fees generally were not recoverable at common law, a statute authorizing the recovery of such fees is strictly construed.” Reeves v. Upson Regional Med. Center, 315 Ga. App. 582, 586 (2) n. 7, 726 S.E.2d 544 (2012); See also Bishop, 305 Ga. at 311, 824 S.E.2d 369.
O.C.G.A. § 9-11-37 (a) (4) and O.C.G.A. § 9-11-37 (b) (2) deal with the consequences of a failure to permit discovery. Rule 37 (a) authorizes a party to seek a court order compelling discovery. Rule 37 (b) gives a trial court a range of sanctions to be imposed when a 37 (a) order is violated.” Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 438 (2), 254 S.E.2d 825 (1979).
O.C.G.A. 9-11-37 (b) (2)
OCGA § 9-11-37 (b) (2) permits a trial court, in certain situations, to impose sanctions, including attorney fees, for noncompliance with a discovery order. It specifically identifies three categories of parties or persons who may be subject to such sanctions: (1) “a party,” (2) “an officer, director, or managing agent of a party,” or (3) “a person designated under paragraph (6) of subsection (b) of Code Section 9-11-30 or subsection (a) of Code Section 9-11-31 to testify on behalf of a party[.]” O.C.G.A. § 9-11-37 (b) (2).
The Court of Appeals relying on a 1993 case found that O.C.G.A. § 9-11-37 (b) (2) must be read “in the natural and most obvious import of its language without resorting to subtle and force construction for the purpose of either limiting or extending its operation.” Allstate Ins. Co. v. Reynolds, 210 Ga. App. 318, 318-319, 436 S.E.2d 56 (1993). Because the award of attorney’s fees under that statute is only permitted against three categories of persons and “persons” is not one of them, a non-party cannot be ordered to pay fees under that statute. Id.; NRD Partners II, L.P., 2022 WL 2383704 at *4.
The court instructed that the ruling did not find that no contempt order could be issued against a non-party, however O.C.G.A. § 9-11-37 (b) (2) did not give the trial court that power. Further, Judge McFadden emphasized that only the legislature could make the statute say anything other than the express language as currently written.
As a result of this finding, the court vacated and remanded the attorney’s fees under this statute.
O.C.G.A. 37 (a) (4)
Under O.C.G.A. § 9-11-37 (a) (2), a party may move to compel discovery responses to a document request under O.C.G.A. § 9-11-34. NRD Partners II, L.P., 2022 WL 2383704 at *4. The requirements for production of documents under OCGA § 9-11-34 apply to nonparties as well as parties to the litigation. O.C.G.A. § 9-11-34 (c); See also Sechler Family Partnership v. Prime Group, 255 Ga. App. 854, 856-857 (2), 567 S.E.2d 24 (2002).
O.C.G.A. § 9-11-37 (a) (4) permits a trial court to award reasonable expenses, including attorney fees, incurred in connection with a motion to compel discovery brought under OCGA § 9-11-37 (a) (2). It imposes different criteria for the award depending upon whether the motion to compel is granted (OCGA § 9-11-37 (a) (4) (A)), denied (OCGA § 9-11-37 (a) (4) (B)), or granted in part and denied in part (OCGA § 9-11-37 (a) (4) (C)).
Here, the Court of Appeals vacated and remanded again, however, not because the rule does not apply to nonparties but rather because the narrowing of the motion to compel order from the actual request in the motion to compel may have been a grant in part, which would not allow for attorneys fees.