Perpetuating Pre-Lawsuit Testimony in Georgia

Posted by Daniel H. Park on

You may be surprised to hear that Georgia law provides for pre-lawsuit depositions in limited circumstances. The Georgia Civil Practice Act sets forth an equitable proceeding to perpetuate a person’s own or another person’s testimony prior to the filing of a lawsuit by petition to the Superior Court.  O.C.G.A. § 9-11-27.   

This rarely used procedure is limited to circumstances where testimony might be lost to a potential litigant unless immediate steps are taken to preserve such testimony.

The caveat is that the petition may only be used to preserve and perpetuate known testimony, not “to be used for the purpose of ascertaining facts to be used in drafting a complaint”.  Worley v. Worley, 161 Ga. App. 44 (1982). This is far narrower than the scope of information that may be sought in depositions in the normal course of discovery where a party may seek discovery regarding any matter, not privileged, which is relevant to the issues of the case. Given its narrow scope, this pre-lawsuit procedure is most often used when a person essential to a case is seriously ill or injured, or dying, before suit is filed. 

The verified petition seeking to perpetuate testimony must show:

  1. That the petitioner expects to be a party to litigation but is presently unable to bring it or cause it to be brought;
  2. The subject matter of the expected action and petitioner’s interest therein, the facts which the petitioner desires to establish and reasons for desiring to perpetuate the testimony;
  3. The names or a description of the persons the petitioner expects will be adverse parties and their addresses.
  4. the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit
  5. A request for an order authorizing the petitioner to take the depositions.
If an order to perpetuate testimony is granted, the depositions may then be taken in accordance with the Civil Practice Act and may be used in any action involving the same parties and subject matter subsequently brought.