Brief In Support Of J. Sweatman Motion To Compel Discovery Ocr¶

FILED 6/14/2023 6:46 PM CLERK OF SUPERIOR COURT DEKALB COUNTY GEORGIA

JAB IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA

JONATHAN SWEATMAN, Petitioner, v.

SARAH ZEEMAN,

Respondent / Counterclaim Petitioner. v.

JONATHAN SWEATMAN, Counterclaim Respondent.

SLhIF7Pi?)0o

CIVIL ACTION

FILE NO. 21CV9795

BRIEF IN SUPPORT OF PLAINTIFF/COUNTERCLAIM DEFENDANT JONATHAN SWEATMAN’S MOTION TO COMPEL DISCOVERY

COMES NOW, JONATHAN SWEATMAN, Plaintiff/Counterclaim Defendant in the above-styled civil action, and files this Brief in Support of his Motion To Compel Discovery and for Attorney’s Fees pursuant to O.C.G.A. § 9-11-37(a) and O.C.G.A. § 9-11-37(b). STATEMENT OF FACTS

On November 30, 2021, Jonathan Sweatman (“Sweatman’) filed his Complaint against Sarah Zeeman (“Zeeman”). (Rose Aff., § 2). Zeeman filed an Answer and Counterclaim on January 13, 2022, claiming that Sweatman undertook a series of renovations and improvements to his property that encroached onto Zeeman’s property and causing an increased, unnatural amount of water to collect and accumulate on Zeeman’s property. (See Verified Answer And

{SECURE Firm/271/02766/MOTIONS/04075428.DOCX }

Counterclaim Of Respondent Sarah Zeeman § 13). (Rose Aff., ¥ 3). On February 16, 2022, Sweatman served discovery requests upon Zeeman. (Rose Aff., § 4, Ex. A). Zeeman submitted responses to Sweatman’s discovery requests on April 1, 2022,

which were incomplete. (Rose Aff., § 5). Zeeman produced the pleadings that had been filed in connection to this case, photographs of the property, and correspondence with third parties regarding the dispute, but she did not produce any further documentation to support her claims

that she needed medical attention or that she had an expert/contractor opine that Sweatman was the cause of her damages nor that she was the proper owner of the property in dispute. (Rose Aff., 9 5, Ex. B). In response, on April 25, 2022 and May 3, 2022, Sweatman’s counsel Lisa Rose contacted Zeeman’s counsel and asked when Sweatman could anticipate receiving the outstanding responsive documents. (Rose Aff., { 7-8, Ex. C).

On or about May 9, 2022, Rose

sent a 6.4(b) letter dated May 5, 2023, to Zeeman’s counsel stating that many of Zeeman’s

discovery responses were insufficient and requested that those responses be supplemented. (Rose Aff., 9 9, Ex. D). The outstanding documentation consisted of the following documents: 1. An itemization of each and every damage Defendant [Zeeman] is claiming in Defendant’s Counterclaim and all invoices, receipts, proof of payment in support of same.

1. Copies of any and all documents evidencing Defendant’s alleged damages as

alleged in the Counterclaim. 3. Copies of any and all estimates, contracts, and/or proposals prepared by a nonparty to remediate any purported damage to Defendant’s property as it relates to the allegations raised in the Complaint or Counterclaim. 4. Copies of Defendant’s medical records that relate to Defendant’s medical condition at issue, including but not limited to the allegation contained in Count 5, paragraph 52 of Defendant’s Counterclaim, “Zeeman has suffered emotional distress, personal injuries, discomfort, and annoyance, and otherwise been damaged by Sweatman’s invasion of her privacy in an amount to be determined at trial.” 5. Copies of all reports created by each expert that is expected to testify on behalf of Defendant.

{SECURE Firm/271/02766/MOTIONS/04075428.DOCX }

6

6. Copies of all reports created by each witness that is expected to testify on behalf of Defendant.

1. Copies of any and all documents showing communications by and between Defendant and any professional surveyor regarding the Property and copies of surveys and/or draft surveys prepared on behalf of Defendant.
2. Copies of any and all documents showing communications by and between Defendant and any contractor to address or remediate any alleged damaged caused by Petitioner to Defendant’s Property.
3. Copies of any and all documents related to Defendant’s purchase of the two heating ventilation and air conditioning (“HVAC”) units currently located on a

portion of her property.

On May 13, 2022, Zeeman’s counsel indicated that they would provide the requested documents

on that day, but did not. (Rose Aff.

10).

On June 3, 2022, Zeeman’s deposition was noticed and set to take place for July 7, 2022. (Rose Aff., Ex. E). The parties agreed to mediate this case and as a result, stayed Zeeman’s deposition as a result of the upcoming mediation. On July 5, 2022, Zeeman’s counsel and Sweatman’s counsel agreed to extend discovery based on Zeeman’s counsel’s confirmation that he would produce the outstanding documents in advance of mediation (Rose Aff., § 13). On July 6, 2022, Rose sent correspondence to Zeeman’s counsel confirming that Zeeman’s counsel agreed to provide the requested documents, but Zeeman’s counsel still failed to send the documents. (Rose Aff., § 14). The parties underwent mediation, and the documentation was still not provided by Zeeman at that time. On December 27, 2022, undersigned counsel entered an appearance on behalf of Sweatman in connection with defending Zeeman’s counterclaim. (Cooke Aff., § 2). On January 12, 2023, Sweatman made an offer of settlement to Zeeman and to this date, Zeeman has not officially responded to that offer. (Rose Aff., ¢ 11). On March 21, 2023 this Court held a hearing and recognized that the parties previously attended mediation in good faith and agreed to stay

{SECURE Firm/271/02766/MOTIONS/04075428.DOCX }

7

discovery while negotiations were made. This Court handed down a pretrial scheduling order on April 3, 2023, which stated that discovery in this case shall close on July 14, 2023. On May 5, 2023, Sweatman’s counsel reached out to Zeeman’s counsel regarding the outstanding offer of settlement and requested that Zeeman provide a response by May 15, 2023.

No response was provided.! (Cooke Aff.,

43). On May 16, 2023, Sweatman’s counsel again

reached out to Zeeman’s counsel regarding the discovery deadline in this case and the need to resolve outstanding discovery. (Cooke Aff., 9 4). Sweatman’s counsel again reached out to Zeeman’s counsel on May 19, 2023, May 23, 2023, and May 26, 2023 regarding the outstanding discovery issues and attempted to set up a time to discuss this case with Zeeman’s counsel. (Cooke Aff., § 5). On June 1, 2023, Sweatman’s counsel sent a 6.4(b) email in good faith to again attempt to retrieve the outstanding discovery documents from Zeeman. In the aforementioned 6.4(b) letter, Sweatman’s counsel asked that Zeeman’s counsel provide the requested documents by June 8, 2023. (Cooke Aff., § 6). As of this date, however, Zeeman has not supplemented the outstanding documents to Sweatman’s written discovery requests, or even given a reason for not doing so, despite several additional requests by Sweatman’s counsel on June 9, 2023, June 12, 2023, June

13, 2023, and June 14, 2023.7

' Sweatman’s counsel also attempted multiple times to contact Zeeman’s counsel in order to reschedule Zeeman’s deposition date. Sweatman’s counsel has been forced to unilaterally notice Zeeman’s deposition for June 22, 2023.

? Tn an effort to avoid this instant Motion, counsel for Sweatman also proposed a motion to amend the scheduling order to give the parties more time to complete necessary discovery and work out the above discovery issues. Only one of Zeeman’s counsel gave assent, with the others failing to provide substantive responses.

{SECURE Firm/271/02766/MOTIONS/04075428.DOCX }

8

ARGUMENT AND CITATION OF AUTHORITY

I.

Discovery Standard in Georgia

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or appears reasonably calculated to lead to the discovery of admissible evidence. Snellings v. Sheppard, 229 Ga. App. 753, 755 (1997) (citing O.C.G.A. § 9-11-26(b)(1)). “Wide latitude is given to make complete discovery possible.” Jnt’] Harvester Co. v. Cunningham, 245 Ga. App. 736, 738 (2000). “[T]o enable the parties to prepare for trial so that each party will know the issues and be fully prepared on the facts,” the use of broad discovery rules “fulfill[s] a two-fold purpose: issue formulation and factual revelation.” /d. at 738-739 (citing Hickman v. Taylor, 329 U.S. 495, 500 (1947). Importantly, O.C.G.A. § 9-11-37 provides that if a party fails to produce responsive documents, the court may enter an order compelling the parties to produce the requested documents. The Court 1s also authorized to award the moving party reasonable expenses, including attorneys’ fees, caused by such failure.

II.

Zeeman Has Improperly Withheld Critical Documents to the Prejudice of Sweatman, and have Given No Valid Reason for Doing So.

In the present case, Zeeman has not sufficiently responded to Sweatman’s discovery requests, and has given no valid reason for not doing so. Sweatman requested basic documents relevant to Zeeman’s alleged claims and damages. Counsel for Sweatman has attempted in good faith to resolve this discovery dispute on multiple occasions in accordance with Uniform State Court Rule 6.4(b). (Rose Aff., § 8). As a result of Zeeman’s failure to fully respond to Sweatman’s discovery requests, Sweatman is now in the position of defending this case without having basic information to which he is entitled.

{SECURE Firm/271/02766/MOTIONS/04075428.DOCX }

9

The record shows clearly that Sweatman has made specific requests for information and documents directly related to Zeeman’s emotional distress claims and and questions of damages. Such requests are explicitly allowed by O.C.G.A. § 9-11-33(b)(1). Thus, absent some showing that the request seeks information beyond the bounds of proper discovery, there is no legitimate reason to refuse to produce these records. Accordingly, Sweatman now respectfully request this Court to enter an Order compelling Zeeman to suppl