Resolving Discovery Disputes

The Document from Hell--aka The "Privilege Log"

Katherine Gallo — Tue, 31 Jan 2012 11:59:06 -0800

In responding to Requests for Production of documents you have three response choices (1) agree to produce (C.C.P. §2031.220 (pdf)); (2) state that after a diligent search and a reasonable inquiry you have no documents (C.C.P. §2031.230 (pdf)) or (3) object C.C.P. §2031.240 (pdf). If you chose option three, then you must:

(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted. See C.C.P §2031.240(b)

This document is more commonly known as the “privilege log”. Although C.C.P. §2031.240(b) does specifically not state the kind of identification that is required, it is expected that for each document withheld that the privilege log state (a) the nature of the document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or document control umber, if any), and (f) the privilege claimed. See California Civil Discovery Practice (CEB 4th Ed. 2011) §3.192 citing Wells Fargo Bank v. Superior Court (2000) 22 C4th 201 (pdf) and §33.201 for a sample of a privilege log.

Except in some limited situations, California court’s do not have the right to do an in camera inspection of privileged documents to determine whether or not the document is actually privileged. See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:192.1 citing Southern California Gas Co. v. Public Utilities Communication (1990) 50 C3d 31, 45 (pdf). Therefore, it is important that the privilege log be sufficiently specific enough to allow the court to determine whether the document is or is not (in) fact privileged.” Wellpoint Health Networks, Inc. v. Sup Ct. (1997) 59 CA4th 110, 130 (pdf). If the log is not sufficiently specific, the trial court may order the objecting party to prepare a new log containing more information about the nature of the document in question. Kaiser Foundation Hospital v. Superior Court (1998) 66 CA4th 1217, 1228 (pdf). The court also may conduct a preliminary fact hearing on whether the privilege exists. See Ev. C. §402.

So, when you are asserting objections to document requests remember:

You Can’t Do General Objections. Many attorneys use a preamble before their responses called “General Objections”. This is improper. You don’t get to list every conceivable objection and have blanket coverage. C.C.P. §2031.210–240 makes it clear how you are to respond and “General Objections” is not one of them. See Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 (pdf).

You Can’t Do “Boiler-plate” aka Garbage Objections, as they are an indication of bad faith and you can be sanctioned. See Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 (pdf).

You Can’t Object to a Document that does not exist. When counsel for a party objects to production of documents under C.C.P. §2031.240(b), counsel implies that the documents in question exist and have been reviewed. Objection made to requests for production of document that do not exist or not in the attorney or party’s possession violate an attorney’s ethical duty under Bus & PC §6068(d) to act truthfully and, therefore, constitutes bad faith. See Bihun v. AT&T Info. Sys (1993) 13 CA4th 976, 991 (pdf) (reversed on other grounds) and CEB §8:10. Thus, it is important that you review all responsive documents before you respond.

You Must Provide a Specific factual description of the documents or you run the risk that your objections will be deemed waived. The purpose of the privilege log in discovery proceedings is to provide specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production, and is intended to permit a judicial evaluation of the claim of privilege. Best Products, Inc. v. Superior Court (2004) 119 CA4th 1181 (pdf).

The burden is on the party claiming a privilege to establish whatever preliminary facts are essential to the claim if a motion to compel is filed. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:192 see Ev. C. §§402, 405.

Quoting Shakespeare

Katherine Gallo — Thu, 12 Jan 2012 11:37:48 -0800

Last spring I had the pleasure of taking a tour of the Royal Globe Theatre in London, England. On display there was a plaque titled “Quoting Shakespeare.” It began by stating:

IF YOU CANNOT UNDERSTAND MY ARGUMENT AND DECLARE, “it’s Greek to me, you are quoting Shakespeare. If you claim to be more sinned against than sinning, you are quoting Shakespeare. If you act more in sorrow than in anger, if your wish is father to the thought, if you lost property has vanished into thin air, you are quoting Shakespeare. If you have ever refused to budge an inch or suffered from green-eyed jealousy, if you have played fast and loose, if you have been tongue-tied-a tower of strength—hoodwinked or in a pickle, if you have knitted your brows—made a virtue necessitated, insisted on fair play, slept not one wink—stood on ceremony—danced attendance on your lord and mater—laughed yourself into stitches, had short shrift—cold comfort, too much of a good thing, if you have seen better days, or lived in a fools paradise, why, be that as it may, the more fool you, for it is a foregone conclusion that you are as good luck would have it, quoting Shakespeare…

It brought a smile to my face when I read the passage as I realized how much of Shakespeare is in our everyday vernacular. There to I realized how many distinctive quotes there that I use over and over again as a Discovery Referee. Here are a few that you should keep handy to sprinkle into your arguments during your discovery battles.

PHILOSOPHY OF DISCOVERY

The overriding philosophy of the Discovery Act is that discovery should be liberally construed in order to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:1, citing Greyhound Corp. v. Sup. Ct. (1961) 56 C2d 355 (pdf).

Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:71 citing Colonial Life & Accident Insurance Co. v. Sup. Ct. (1982) 31 C3d 785, 790 (pdf).

“Relevant to the subject matter” is broader than relevancy to the issues which determines admissibility of evidence at trial. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:66 citing Bridgestone-Firestone Inc. v. Sup. Ct. (1992) 7 CA4th 1384, 1392 (pdf).

Admissibility at trial is not the test for relevancy. See Davies v. Sup. Ct. (1984) 36 C3d 291, 301 (pdf).

There is no priority in discovery. C.C.P. §2019.210 (pdf).

Fishing trips are permissible Greyhound Corp. v. Sup. Ct. (1961) 56 C2d 355, 383-385, just be prepared to state what you are fishing for.

The scope of permissible discovery is one of reason, logic and common sense. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶ 8:67 citing Lipton v. Sup. Ct. (1996) 48 CA4th 1499, 1611 (pdf)

DISCOVERY PROPOUNDED

The Fourth District Court of Appeal defined “reasonable particularity” in requests for production of documents to mean that they are “reasonably particularized from the standpoint of the party on whom the demand is made.” Calcor Space Facility, Inc. v. Sup. Ct. (1997) 53 CA4th 216, 222 (pdf).

Any party may obtain discovery ... by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties. C.C.P. §2033.010 (pdf).

RESPONDING TO DISCOVERY

The code requires that a party must make a reasonable and good faith effort to obtain the information. Regency Health Services, Inc. v. Sup. Ct. (1998) 64 CA4th 1496 (pdf) “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA 3d 771, 782 (pdf). This includes a party’s lawyer Smith v. Sup. Ct. (1961) 189 CA2d 6 (pdf), agents or employees Gordon v. Superior Court (1984) 161 CA 3d 151, 167-168 (pdf), family members Jones v. Sup. Ct. (1981) 119 CA 3d 534, 552 (pdf) and experts. Sigerseth v. Sup. Ct. (1972) 23 CA 3d 427, 433 (pdf). See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2009) ¶ 8:1051-1060

OBJECTING TO DISCOVERY

“Burdensome and Oppressive” The showing required to sustain this objection is that the intent of the party was to create an unreasonable burden, or that burden created does not weigh equally with what requesting party is trying to obtain from it. See Mead Reinsurance Co. v. Sup. Ct. (1986) CA3d 313 (pdf) In the Mead case, the objecting party showed that it would require the review of over 13,000 claims files requiring five claims adjusters working full time for six weeks.

“Right of Privacy” “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Article I, Section 1 of the California Constitution.

"Information equally available to asking party" The only time this objection works is if a party has to go get public records Bunnell v. Sup. Ct. (1967) CA2d 720, 723-724 (pdf) or interview independent witnesses Holguin v. Sup Ct. (1972) 22 CA3d 812, 821 (pdf) in order to answer the questions.

Referencing Documents: It is improper to answer “See Complaint” or “See deposition”. If the question requires reference to some other document, then the document should be identified and its contents summarized so that the answer by itself is fully responsive to the interrogatory. Weil and Brown Civil Procedure Before Trial (TRG 2011) §8:1049 citing Deyo v. Kilbourne (1978) 84 CA 3d 771. The exception to this is C.C.P. §2030.230 where the code allows the answering party to allow the interrogating party to inspect the files and records. However, the answering party must show: (1) a compilation, abstract, audit or summary of its records is necessary in order to answer the interrogatory; and (2) no such compilation etc. exists; and (3) the burden or expense of preparing or making it would be substantially the same for the asking party as it would for the answering party.

MOTIONS

Motions to compel further responses to interrogatories, requests for productions of documents and requests for admissions require that the motion be filed within 45 days. CCP §§ 2030.300(c), 2031.310(c) and 2032.290(c). Delaying the filing of the motion waives a party’s right to compel further responses. The case of Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681, 685 (pdf) takes the position that the court lacks jurisdiction to order further responses after time has expired. The Second District Court of Appeal upheld this rationale in Sexton v. Superior Court (1987) 58 Cal. App. 4th 1403, 1410 (pdf).

SANCTIONS

Discovery sanctions are not reported to the State Bar. See Bus. & Prof. Code. §6068(o)(3) (pdf) .

Discovery sanctions are not a windfall. They are to compensate for costs and fees incurred by the party in enforcing discovery or defending a meritless motion. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2011) ¶8:1213 citing Caryl Richards, Inc. v. Sup. Ct. (1961) CA2d 300, 303 (pdf).

In imposing issue and evidence sanctions, the court must tailor the sanction to fit the conduct. McArthur v. Bockman (1989) 208 Cal. App. 3d 1076, 1080-1081 The aggrieved party cannot receive more by way of a sanction then it would have received if it had received the discovery. Rail Services of America v. State Comp. Insurance Fund (2003) 110 Cal App. 4th 323, 332 (pdf).

The “trial court is not required to make findings at all” in granting any discovery sanctions, including terminating sanctions. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2011) ¶8:1241.5 citing Ghanooni v. Super Shuttle of Los Angeles (1993) 20 CA 4th 256, 261 (pdf).

BE FORWARNED OF A COURT’S IRE

“Twenty-three years ago, the Legislature enacted the Civil Discovery Act of 1986 . . . a comprehensive revision of pretrial discovery statutes, the central precept of which is that civil discovery be essentially self-executing. More than 10 years ago, Townsend v. Superior Court (1998) 61 CA 4th 1431 (pdf) lamented the all too often interjection of "ego and emotions of counsel and client[s]" into discovery disputes, warning that "[l]ike Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement." (Townsend at 1436.) Townsend counseled that the "informal resolution" of discovery disputes "entails something more than bickering with [opposing counsel]." (Townsend at 1439) Rather, the statute "requires that there be a serious effort at negotiation and informal resolution." (Townsend at 1438.)” Clement v. Alegre (2009) 177 CA4th 1277 (pdf).

DO YOU HAVE ANY FAVORITE QUOTES YOU WOULD LIKE TO SHARE?

INSPECTION DEMANDS-What is a Reasonable Inquiry?

Katherine Gallo — Tue, 13 Dec 2011 11:31:17 -0800

To determine whether or not a responding party has made a reasonable inquiry, you must determine where the responding party searched (what efforts were made), who did they talk to (did they make an inquiry to their legal department, human resources, customer relations, the employees in the chain of command, etc.), and what were the questions they asked.

More often then not I see responses to document requests being done (1) by the one with the highest bar number on the pleading (a.k.a. the newbie associate) and/or (2) by the attorney dictating at their desk instead of taking the time to sit down with the client, determining whom they should be talking to and knowing what questions to ask.

It is my opinion that the person who should be talking to the client and collecting the documents is the experienced senior attorney who has a relationship with the client and knows what questions to ask. If the senior attorney still chooses to delegate, then they need to be “hands on” and take responsibility whether or not a “diligent search” and “reasonable inquiry” were in fact made prior to the response and production being served.

If a motion to compel further responses comes before me based on the response:

After a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, there are no documents within RESPONDING PARTY’s possession, custody, or control

I am going to be asking the responding party for a declaration from the client and/or attorney as to what exactly was done, who was contacted and what questions were asked. What I have found, more times then not, is that the parties have not done a “diligent search” and/or made a “reasonable inquiry.”

It is important that attorneys recognize that the obligations in responding to inspection demands and collecting documents cannot be ignored. The courts are more than ever issuing sever monetary, issue and evidence sanctions for failure to comply. The most recent being Kayne v. Superior Court (2011) 198 CA4th 1470 (pdf). Therefore, in responding to an inspection demand and collecting documents you need to do the following:

FIRST, you need to figure out what questions you should be asking your client and what documents you need from your client. To determine that you need to know your case and that includes:

Each party’s theories
Potential causes of action that were not pleaded but might be included in an amended complaint
Affirmative defenses
Review of jury instructions

SECOND, you need to identify the corporate structure to determine whom you should be talking to and whether or not they did an investigation. These people include:

In-house counsel
Risk manager
Human resources
Chains of command regarding reporting obligations.

THIRD, you need to identify key witnesses with information relevant to the subject matter of the dispute. These witnesses include:

People whose names appear in the narrative portion of a complaint.
People whose names appear on documents.
People named in interrogatory responses.
People identified in depositions.
People identified by in-house counsel.
People identified by internal or insurance company investigations.

FOURTH, you are going to need to determine where the client has their documents as well as third parties whom the client has custody and control over (i.e., insurance brokers, banks, former employees etc.) keeps their documents and/or electronically stored information. This inquiry starts with determining whether the documents are in paper files, they are electronically stored information (ESI) or a combination thereof.

Paper Files

Where are the primary file cabinets?
Would any employee or third party have copies?
Are any of the documents stored off site?
Have any of the documents been destroyed?

Electronically Stored Information (ESI)

Where are the primary electronically stored files kept (i.e., stand-alone computers, servers, the cloud)?
Is the information on any portable storage media such as thumb-drives CD-ROM, portable backup drives?
Is the information on anyone’s personal laptops, home computers, tablets, smart phones?
Has any of the ESI been erased, overwritten or destroyed?

FINALLY, you are going to need to determine the client’s data retention and litigation hold policies. Also, do they have a criterion in place as to what documents get systematically destroyed due to age and other reasons.

Though the above is not an all-inclusive list, it is a good starting point. I would also recommend that you review California E-Discovery and Evidence (Matthew Bender Practice Guide (2010)) Section 9 titled Gathering and Producing Electronically Stored Information.

WORDS OF WISDOM:

In Qualcomm v. Broadcam (United States District Court, Southern District of California, Case # 05cv1958-B) United States Magistrate Judge Barbara L. Major stated in Footnote 10 of her January 7, 2008 ruling that

If[the associate attorney] was unable to get Qualcomm to conduct the type of search he deemed necessary to verify the adequacy of the document search and production then he should have obtained the assistance of the supervising or senior attorneys. If [they] were unable to get Qualcomm to conduct a competent and thorough document search, they should have withdrawn from the case or taken other action to ensure production of the evidence.

INSPECTION DEMANDS-What is a Diligent Search

Katherine Gallo — Tue, 08 Nov 2011 09:00:00 -0800

Have you ever received a response to requests for production of documents that says:

After a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, there are no documents within RESPONDING PARTY’s possession, custody, or control

Yet you question the veracity of the verified response, because they have got to have documents. So what can you do? This is a two-prong inquiry. The first being

What is a "Diligent Search"?

The requirement of a “diligent search” in responses to requests for inspection and production of documents is one of the most fought over provisions of the Discovery Act. Part of the problem is that the Code of Civil Procedure isn’t really helpful in its definition as the only time the language comes up is in C.C.P. §2031.230 (pdf) which states in part:

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand . . .

Also the typical treatises, Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) and California Civil Discovery Practice (CEB 4th Ed. 2011) don’t go into detail as to what the obligation really is. So, here is what I expect a party to do in responding to a request for production of documents.

Good Faith Obligation

A party must make a good faith effort in obtaining documents responsive to the request. Regency Health Services, Inc. v. Superior Court(1998) 64 CA4th 1496 (pdf). To me, this means that the obligation is well beyond an attorney dictating a response off the top of his head and looking through his file. See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants(2007) 148 CA4th 390 (pdf) The Code recognizes that the response and production are labor intensive. That is why you have 30 days.

“Possession, Custody or Control”

The case law is very clear when it comes to responses to interrogatories, requests for admissions and document requests – “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA 3d 771(pdf).

It goes without saying that a party must produce documents in his or her possession and custody. However, even if a party that does not possess an item covered by an inspection demand the party may nonetheless control it. California and Federal courts have found that a party has control over the following individuals and entities for purposes of producing documents:

A Party’s Lawyer Smith v. Superior Court (1961) 189 CA2d 6 (pdf)

Family Members Jones v. Superior Court(1981) 119 CA 3d 534, 552 (pdf)

Experts Sigerseth v. Superior Court(1972) 23 CA 3d 427,433 (pdf)

Insurers Clark v. Superior Court(1960) 177 Cal. App 2d 577 (pdf)

Agents or Employees Gordon v. Superior Court(1984) 161 CA 3d 151 (pdf)

Officers, Shareholders and Managers General Environmental Science Corp v. Horsfall (1991, ND Ohio) 136 FRD 130, 133-134

Affiliated Corporations Standard Ins., Co. v. Pittsburgh Electric Insulation, Inc. (1961, WD Pa) 29 FRD 185; Gerling Intern. Insur. Co. v. C.I.R. (1988, CA3) 839 F2d 121, 140,141.

Tax Records Reeves v. Pennsylvania Railroad Co. (1948, D Del) 80 F Supp 107, 109.

I also expect the diligent search to include any third party institution where you can sign an authorization and obtain the records such as health care providers, financial institutions etc.

The statute and the case law make it very clear that a party and the attorney must be proactive in obtaining the information and documents in response to a request. Take the time and do the response and production correctly, because this is the discovery device where issue, evidence and terminating sanctions are mostly granted.

For more detailed discussion on what defines “control” by a party over non-parties see Hogan and Weber California Civil Discovery Second Edition at §6.5.

NEXT: INSPECTION DEMANDS–What is a Reasonable Inquiry?

Have you ever received a response to requests for production of documents that says:

“After a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, there are no documents within RESPONDING PARTY’s possession, custody, or control”

Yet you question the veracity of the verified response, because they have got to have documents. So what can you do? This is a two-prong inquiry. The first being

What is a Diligent Search?

The requirement of a “diligent search” in responses to requests for inspection and production of documents is one of the most fought over provisions of the Discovery Act. Part of the problem is that the Code of Civil Procedure isn’t really helpful in its definition as the only time the language comes up is in C.C.P. Section 2031.230 which states in part:

Also the regular treatises, Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) and California Civil Discovery Practice (CEB 4th Ed. 2011) don’t go into detail as to what the obligation really is. So, here is what I expect a party to do in responding to a request for production of documents.

Good Faith Obligation

A party must make a good faith effort in obtaining documents responsive to the request. Regency Health Services, Inc. v. Superior Court (1998) 64CA4th 1496. To me, this means that the obligation is well beyond an attorney dictating a response off the top of his head and looking through his file. See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390 The Code recognizes that the response and production are labor intensive. That is why you have 30 days.

“Possession, Custody or Control”

It is a no brainer that a party must produce documents in his possession and custody. However, even if a party who does not possess an item covered by an inspection demand may nonetheless control it. California and Federal courts have found that a party has control over the following individuals and entities for purposes of producing documents:

A party’s lawyer. Smith v. Sup. Ct. (Alfred) (1961) 189 CA 2d 6

Family Members Jones v. Superior Court (Benny) (1981) 119 CA 3d 534, 552

Experts Sigerseth v. Superior Court (1972) 23 CA 3d 427,433.

Insurers Clark v. Superior Court (1960) 177 Cal. App 2d 577

Agents or Employees Gordon v. Sup. Ct. (U.Z.MFG.Co) (1984) 161 CA 3d 15,167-168,

Officers, Shareholders and Managers General Environmental Science Corp v. Horsfall (1991, ND Ohio) 136 FRD 130, 133-134

Affiliated Corporations Standard Ins., Co. v. Pittsburgh Electric Insulation, Inc. (1961, WD Pa) 29 FRD 185; Gerling Intern. Insur. Co. v. C.I.R. (1988, CA3) 839 F2d 121, 140,141.

Tax Records Reeves v. Pennsylvania Railroad Co. (1948, D Del) 80 F Supp 107, 109.

I also expect the diligent search to include any third party institution where you can sign an authorization and obtain the records such as health care providers, financial institutions etc.

The statute and the case law make it very clear that a party and the attorney must be proactive in obtaining the information and documents in response to a request. Take the time and do the response and production right, because this is the discovery device where issue, evidence and terminating sanctions are mostly granted.

For more detailed discussion on what defines “control” by a party over non-parties see Hogan and Weber California Civil Discovery Second Edition at §6.5.

NEXT: The second prong–what is a reasonable

Have you ever received a response to requests for production of documents that says:

“After a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, there are no documents within RESPONDING PARTY’s possession, custody, or control”

Yet you question the veracity of the verified response, because they have got to have documents. So what can you do? This is a two-prong inquiry. The first being

What is a Diligent Search?

Good Faith Obligation

“Possession, Custody or Control”

A party’s lawyer. Smith v. Sup. Ct. (Alfred) (1961) 189 CA 2d 6

Family Members Jones v. Superior Court (Benny) (1981) 119 CA 3d 534, 552

Experts Sigerseth v. Superior Court (1972) 23 CA 3d 427,433.

Insurers Clark v. Superior Court (1960) 177 Cal. App 2d 577

Agents or Employees Gordon v. Sup. Ct. (U.Z.MFG.Co) (1984) 161 CA 3d 15,167-168,

Officers, Shareholders and Managers General Environmental Science Corp v. Horsfall (1991, ND Ohio) 136 FRD 130, 133-134

Affiliated Corporations Standard Ins., Co. v. Pittsburgh Electric Insulation, Inc. (1961, WD Pa) 29 FRD 185; Gerling Intern. Insur. Co. v. C.I.R. (1988, CA3) 839 F2d 121, 140,141.

Tax Records Reeves v. Pennsylvania Railroad Co. (1948, D Del) 80 F Supp 107, 109.

I also expect the diligent search to include any third party institution where you can sign an authorization and obtain the records such as health care providers, financial institutions etc.

The statute and the case law make it very clear that a party and the attorney must be proactive in obtaining the information and documents in response to a request. Take the time and do the response and production right, because this is the discovery device where issue, evidence and terminating sanctions are mostly granted.

For more detailed discussion on what defines “control” by a party over non-parties see Hogan and Weber California Civil Discovery Second Edition at §6.5.

NEXT: The second prong–what is a reasonable inquiry?

inquiry?

Litigate like an Egyptian

Katherine Gallo — Wed, 28 Sep 2011 09:30:00 -0800

You are now sitting down to organize your Discovery Plan and determining what discovery you need to evaluate your case, prepare for mediation, file a motion for motion for summary judgment/summary adjudication and/or get it ready for trial. But where do you start? My suggestion is to litigate like an Egyptian and build a pyramid (pdf).

Using the below scenario I will demonstrate the discovery plan that I would use and the pyramid I would build in defending this matter.

Plaintiffs own a 3,500 square foot home in Danville, CA. Plaintiffs went to a Home Improvement Store one afternoon where they saw a “sales pitch” regarding new roofs. After listening to the “sales pitch,” the plaintiffs signed a contract for a new roof. After the first winter, the plaintiffs discovered many leaks in the roof. The plaintiffs tarped the roof, closed the windows and moved out. Two years later, plaintiffs are claiming that the house is uninhabitable and want the house torn down and rebuilt. They are seeking damages in the amount of $2 Million.

INITIAL DISCOVERY

My first step is to spot all the issues. In the above scenario plaintiffs obviously have causes of action for breach of contract and property damage. Plaintiffs may also have a claim for personal injury and wage loss due to exposure of mold (“uninhabitable” part of the scenario). With this in mind I would serve the following initial discovery:

A. Judicial Council Form Interrogatories with the following boxes checked:

1.0 Identity of Persons Answering These Interrogatories
2.0 General Background Information–Individual
4.0 Insurance
6.0 Physical, Mental, or Emotional Injuries
7.0 Property Damage
8.0 Loss of Income or Earning Capacity
9.0 Other Damages
10.0 Medical History
11.0 Other Claims and Previous Claims
12.0 Investigation–General
14.0 Statutory or Regulatory Violations
50.0 Contract

B. I would also serve Requests for Production of Documents that coincide with the checked boxes of the Form Interrogatories regarding:

Insurance
Physical, mental or emotional injuries
Property Damage
Loss of Income or Earning Capacity
Other Damages
Medical History
Other Claims and Previous Claims
Investigation
Statutory or Regulatory Violations
Contract

SECOND TIER DISCOVERY

A. Once I have received the verified responses to the form interrogatories and requests for production of documents, I should know:

Who are plaintiffs’ treating physicians for the alleged medical injuries;
Who are plaintiffs’ past treating physicians;
Who are plaintiffs’ current employers where they incurred the alleged wage loss;
Who are plaintiffs’ past employers;
Who has provided a written estimate for the alleged property damage; and
Who has repaired the property damage.

So my next step would be to subpoena the records from each and every one of them.

B. I would also decide whether or not I would want my investigator interview the witnesses named in plaintiffs’ response to Form Interrogatory 12.1 or have them deposed. Most likely I would have my investigator talk to the witnesses and decide later if I needed them deposed. However, if I chose to depose them, then I would schedule the depositions.

C. At this point I would also start contacting and retaining experts–such as a roofing expert and possibly a mold expert.

D. Lastly, I would schedule a site inspection. However, before I serve my notice for the site inspection, I would make sure that my experts will have all the information he needs by the time of the site inspection and will be available on the date I selected.

THIRD TIER DISCOVERY

A. After I have received and reviewed the subpoenaed medical and employment records, I may determine that I need an independent medical examination for conditions that are “in controversy” See C.C.P. §2032.220 (pdf). Remember: In scheduling the independent medical examinations, you only get one per plaintiff unless you file a motion. C.C.P. § 2032.220(a).

B. If plaintiffs are claiming emotional injuries if any of the plaintiffs are claiming “great mental pain and suffering” resulting from physical injury, then I would seek a psychiatric examination either by stipulation or motion. See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:1554 et seq.

C. I would also schedule the deposition of the plaintiffs to take place after you receive the independent medical examination report of the plaintiff, but before I do my Target Discovery. When to take the deposition of the plaintiffs is based primarily on preference, but this is when I like to take it as I will have plaintiffs’ response to form interrogatories, all plaintiffs’ documents, documents from third parties and the report from the independent medical examiner.

TARGET DISCOVERY

At this point I am refining my case for either a motion for summary judgment/summary adjudication or trial. My goal is to nail down the plaintiffs as to their claims and damages as well as what they think my client did wrong. This is when I use specific discovery requests and would serve:

A. Special Interrogatories as to specific areas. However, I will not use contention interrogatories as requests for admissions are more effective;

B. Requests for Admissions;

C. Form Interrogatory 17.1 titled "Responses to Request for Admissions"; and

D. Requests for Production of Documents requesting “all documents identified in your response to Form Interrogatory 17.1 (d).”

I try and stay under 35 requests for admissions and 35 special interrogatories. I could provide a Declaration of Necessity, but I want to limit plaintiffs’ ability to object on the grounds of burdensome.

Hint: In a complex case, target discovery may take many months or years, however, doing the first three levels is the necessary foundation for your target discovery.

EXPERT WITNESSES

A. Unless stipulated or court ordered otherwise, expert disclosure is 50 days before trial. See C.C.P. §2034.260 and Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:166 - 1685.6. At that time I must exchange:

1. Expert List setting forth the name and address of each person whose expert opinion I expect to offer at trial.

2. Expert Witness Declaration describing the

Qualifications of the expert
General substance of expected testimony
That the expert has agreed to testify and is sufficiently familiar with the pending action to provide a meaningful oral deposition concerning the specific testimony the expert is expected to give at trial
The expert’s hourly and daily fees for providing deposition testimony and for consulting with the attorney.

B. After receiving plaintiffs’ expert disclosure I would immediately contact opposing counsel and ask him for his experts’ availability, advise him/her of my experts’ availability and begin the scheduling of the experts’ depositions. The scheduling of experts depositions is not a time to play games. Pursuant to C.C.P. §2034.230 (pdf) (expert disclosure 50 days before trial), C.C.P. §2034.230 (pdf) (expert discovery closes 15 days before trial) and C.C.P. §2034.230 (pdf) (10 day deposition notice), I only have a 25-day window period in which to take all expert depositions and that includes Saturdays and Sundays. If I exclude the weekends, I have less than 15 days.

TRIAL

After doing the above, I have built my pyramid and I am ready for trial.

"I DECLARE, IT IS NECESSARY"

Katherine Gallo — Wed, 31 Aug 2011 10:00:00 -0800

As every lawyer is aware, a party may propound more than 35 specially prepared interrogatories or requests for admissions simply by attaching a Declaration of Necessity (pdf) pursuant to C.C.P. §2030.040 (pdf) and C.C.P. §2033.040 (pdf) stating the reasons why they need more. See C.C.P. §2030.050 (pdf) and C.C.P. §2033.050 (pdf). However, when you receive more than 35 specially prepared interrogatories or requests for admissions, you should ask yourself the question "IS IT REALLY NECESSARY?"

Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:953 advise in their practice pointer: "Don’t let the fact that you may be ‘vouching’ personally for the excess interrogatories defer you from full discovery. It is highly unlikely a court will impose sanctions against you for asking whatever number of questions is realistically required." They also give another helpful hint by stating "even if a protective order is sought, you still have an escape-hatch to avoid sanctions . . . you can use the meet and confer process to scale back the number of interrogatories and minimize the risk of sanctions" Weil and Brown’s practice pointer is not in the spirit of the Discovery Act. The purpose of discovery is to take the "game" element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary [Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf)]; not to club them into submission.

So with the above being said, here are some scenarios and some helpful hints for the party on the receiving end of the "Declaration of Necessity."

At the beginning of a case, opposing counsel serves, form interrogatories with all the appropriate boxes including 17.1 checked, 35 special interrogatories, 35 requests for admissions and 25 requests for production of documents.

Though the above discovery is permitted by code, the total number of interrogatories (remember the subparts in the form interrogatories) and requests are going to be in the hundreds. In responding to this discovery, you are going to spend tens of hours and cost your client thousands of dollars and this is just the initial volley of discovery.

Do not ignore the abusive tactic from opposing counsel. It is important that you set the tone of the case immediately. Send a meet and confer letter to opposing counsel asking him to withdraw the 35 special interrogatories and/or requests for admissions. Advise counsel that:

The total of form interrogatories (add subparts including the 17.1 series for each request for admission) the special interrogatories, requests for admissions and the requests for documents are in the hundreds and it will take you tens of hours to respond;
Specially prepared interrogatories and requests for admissions are more appropriate for later stages of discovery;
Deposition of your client is a more efficient use of time and money at this stage of the litigation;
The specially prepared interrogatories and requests for admissions coupled with the other discovery requests are harassing and are intended to waste time and money;
he facts and issues in the case are not complex; and
If the requests for admissions and specially prepared interrogatories are not withdrawn, you will file a protective order or you will file a protective order when any additional specially prepared interrogatories or requests for admissions are served (if the facts and issues are not complex).

Be prepared to file the protective order asking the court for limiting the discovery and/or more time to respond. It is important that you let the court know that opposing counsel is using discovery as a weapon. If you anticipate future discovery problems with opposing counsel, you may want to request that the court appoint a discovery referee.

After settlement discussions have failed, you are soon served with a slew of discovery including a second set of specially prepared interrogatories and a second set of requests for admissions; both exceed the 35 total limits allowed by the Code of Civil Procedure and both with a "Declaration of Necessity." It is your strong belief that the purpose of the newly propounded discovery is to force you back to the negotiating table.

This is a common tactic and possibly a justifiable one if trial is approaching. However, instead of responding, take a closer look if the propounding party can justify the "Declaration of Necessity." Is the case complex? Would a deposition or subpoena of a third party be more time efficient or cost effective? And, why should your client pay the additional litigation cost because the opposition failed to take into account the limitations in C.C.P. §§ 2030.030(a)(1) and 2033.030(a)(1) in developing their discovery plan?

Send a meet and confer letter to opposing counsel objecting to all specially prepared interrogatories and requests for admissions that exceed 35 because:

The facts and issues of the case are not complex;
All the other discovery that already has been done;
Other discovery devices (i.e., depositions, third party subpoenas, expert witnesses’ depositions) would be more efficient and/or cost effective; and/or
The Code of Civil Procedure limits discovery to 35 specially prepared interrogatories and requests for admissions and the fact that opposing counsel has used them all is not your problem. The opposing party needs to take responsibility for their discovery plan.

If you go to court on a motion for protective order, be careful in accusing the opposition of abusing discovery because you wouldn’t settle. The accusation may hurt you more than help you. Let the court come to that conclusion on its own.

Two years into a complex case you are served with Specially Prepared Interrogatories Set #5-- Interrogatories 152-185, Requests for Admissions Set #3–Requests #57-91, Form Interrogatories Set #4 with 17.1 checked and Requests for Production of Documents, Set #5–Requests 180-222.

This is a frequent problem in complex cases that last years. The propounding party has either forgotten what they have already served or new attorneys are working on the file and haven’t taken the time to review previous discovery that was propounded. Nonetheless, the only way to handle this is for you to research what discovery you have responded to and how the present propounded discovery is duplicative. Once you have that information, send a meet and confer letter stating:

Which interrogatory, request for admission and/or request for documents are duplicative or a subset of which interrogatory, request for admission and/or request for documents that have already been propounded;
Suggest what other discovery devices would be more efficient or cost effective (i.e., depositions, expert testimony, site inspections, subpoenas of third party records . . .); and/or
Advise the propounding party that if they are not withdrawn you will seek a protective order and/or request a discovery referee to oversee the remaining discovery in the matter in order to get it to trial.

Even though you can object stating that the discovery is duplicative, this is the type of case that you want to be proactive and go to court so you won't spiral into Discovery Hell.

REMEMBER: If a party does not withdraw their excessive specially prepared interrogatories or requests for admissions, you must file a protective order as an objection is not sufficient if a declaration of necessity is attached. See C.C.P. §§ 2030.040(b) and 2033.040(b).

Give Me All Your Documents!

Katherine Gallo — Tue, 26 Jul 2011 11:45:00 -0800

I recently reviewed a case management order in a complex construction case venued in Southern California. The order required all parties to produce:

Any and all relevant non-privileged and non-protected documents (consistent with California Evidence Code Section 250), including but not limited to job files, building contracts, agreements, notes, correspondence, photographs, videotapes, diagrams, plans, specifications, shop drawings, “as-built” plans, calculations, journals, invoices, purchase orders, change orders, addenda reports (including reports prepared by consultants and design professionals for the original construction), job diaries, receipts, project files, site records, daily job logs, field orders, superintendent reports, requests for clarification, requests for information, time cards, governmental inspection punch lists and sign off sheets and invoices relating to the construction, repair, or maintenance of the real property involved in this lawsuit.

There are so many things wrong with this request I do not know where to begin.

FIRST: This request fails miserably to comply with the Code of Civil Procedure.

What the above request is really asking for “Any and all . . . documents . . . relating to the construction, repair, or maintenance of the real property involved in this lawsuit.” In other words everything including the kitchen sink. No pun intended. Even though the demand describes what could be inclusive of that demand. It still is not "specifically describing each individual item" or by "reasonably particularizing each category of item" as required by C.C.P. §2030.010 (pdf).

Though discovery requests are liberally interpreted, that does not mean that the court will enforce such “blanket” or “omnibus” inspection demands. In Flora Crane Service Inc. v. Superior Court (1965) 234 Cal 2d 767, 786-787 (pdf), the Supreme Court stated that the identification of the documents to be produced is inadequate

“when the books and documents sought to be produced are designated by or included within a so-called omnibus description. The unlimited characteristics of such a description may impair or destroy exactitude so that the custodian of the records is not reasonably apprised of what he must produce. In fact a Federal court interpreted these kinds of requests as “not merely a ‘fishing expedition, but, as one court described it, an effort to ‘drain the pond and collect the fish from the bottom,” Amcast Industrial Corp. v. Detrex Corp. (1991, ND Ind) 138 F.D. 115, 121 quoting In re IAB Peripheral EDP Devises Anti-Trust Litigation (1977, ND CAL0 77 F.D. 39, 41-42. SEE Hogan and Weber California Civil Discovery (2nd Ed.) §6.4

In Calcor Space Facility, Inc. v. Superior Court (1997) 53 CA4th 216 at 222 (pdf) the Fourth District Court of Appeal defined “reasonable particularity” to mean that degree of specification that they are “reasonably particularized from the standpoint of the party on whom the demand is made.”

SECOND Lumping all the categories in one request

There is no rhyme or reason to lump “job files, building contracts, . . .” into one document demand as there is no statutory limit on the number of times a party can make an inspection demand on another party or the number of requests within each demand. See C.C.P. §2031.010. This is different from the other written discovery methods (only 35 interrogatories or 35 requests for admissions without a declaration of need for additional discovery.) So why do it?

THIRD “Relevant non-privileged and non-protected documents”

Inserting this language into the request only hurts you. C.C.P. §2031.240 (pdf) states:

(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

Having the language “relevant non-privileged and non-protected documents” implies that you don’t have to comply with this code section.

FOURTH You are not going to get issue and evidence sanctions

In imposing issue and evidence sanctions, the court must tailor the sanction to fit the conduct. McArthur v. Bockman (1989) 208 Cal. App. 3d 1076, 1080-1081 (pdf) The aggrieved party cannot receive more by way of a sanction then it would have received if it had received the discovery. Rail Services of America v. State Comp. Insurance Fund (2003) 110 Cal App. 4th 323, 332 (pdf) So, if you don’t draft your categories in a manner that they are “reasonably particularized from the standpoint of the party on whom the demand is made”, how is the judge who is not as familiar with the case going to be able to to tailor the sanction?

HINTS:

Counsel should take care in identifying the materials to be produced. A description that is too broad may be the basis for granting a protective order. If the request appears to be boilerplate language (i.e., not crafted to the specific witness and materials to be produced), the court will be much more inclined to restrict the production request or quash it all together. California Civil Discovery Practice (CEB 4th Ed. 2011) §8:48

Although it is important to be inclusive, demands that try to do too much often draw objections. Consider avoiding demand for all documents that “relate” to a subject or demands that are so wordy that they must be carefully parsed. California Civil Discovery Practice (CEB 4th Ed. 2011) PRACTICE TIP at 8:48

Draft your requests from the standpoint of the responding party. Many clients are not sophisticated enough to understand what exact documents you are seeking. Don’t assume that the partner on the file is going to be doing the grunt work on the production as that is usually delegated to the newbie associate. Unfortunately, the newbie associate is probably not going to know where to look for the documents, who to ask, and/or the organizational scheme of his clients business. Having "reasonably particularized" categories will allow the opposing side to collect and produce the documents you seek.

Finally, having your requests “reasonably particularized” will help the court pull the trigger on issue and evidence sanctions as the judge need only incorporate the request into the “tailored” order.

Will You Join Me in the Gutter?

Katherine Gallo — Tue, 28 Jun 2011 11:30:00 -0800

Growing up in an Italian household, our dinners consisted of salad, pasta, wine and an argument. Afterwards we all went out for ice cream with no thoughts of the argument that took place at the dinner table. That is because we thought of arguments as a sport and there was no reason to hold any grudges. However, when I became a lawyer I was surprised to find that lawyers did hold grudges despite the fact that law by its nature is an adversarial process and we are professional arguers.

The disdain and hated that can spew from even the most professional of lawyers can be astonishing. At times you wonder where it comes from.

The answer more times than not lies in one side abusing the discovery process. The greatest offenses in discovery that elicits such negative reactions are:

Bombarding one side with hundreds of interrogatories, request for admissions and requests for documents right out of the gate with no rhyme or reason of a discovery plan other than to use Discovery as a weapon.

Opposing counsel being abusive to your client by asking improper, inappropriate and accusatory questions in a mean menacing tone. Thus, making you look ineffective.

Opposing counsel's failure to respond to discovery other than providing garbage objections though the law is quite clear that the discovery requests are appropriate.

The non-offending attorney eventually goes to court and requests a discovery referee and I get appointed. In reviewing the papers, I can usually put the cause of the hostility in one of the following categories:

(1) The offending attorney has a difficult client and the client expects his hired gun to get his pound of flesh from the other side;

(2) The offending attorney got caught unprepared and is now using abusive tactics to hide their mistakes;

(3) It is the strategy of the offending attorney to get you into the gutter because they know how to win there; or, unfortunately,

(4) All of the above.

Looking at the history of the discovery battle before me, I see the offending attorney being difficult, interjecting improper objections, raising the tone of the conflict and playing a deflective game. Despite the earnest attempts of the non-offending attorney not to engage, he or she eventually ends up fighting the offending lawyer in the gutter throwing insults and accusations in a high volume attempt to stop the madness. By the time the matter reaches the court, the conflict has reached a fevered pitch. The court ends up throwing up its hands saying “Pox on both of your houses, I am sending you to a Discovery Referee” because all the court see is two very unprofessional attorneys and YOU ARE ONE OF THEM!

This conflict costs your client money in attorney fees, it extends the time of the case and it makes it difficult to settle the case without paying a premium. So what do you do?

Your first priority is to protect your client. Your second priority is to protect your reputation. Neither can be accomplished if you let the discovery conflict spiral out of control. So the answer is to nip the conflict in the bud and be PROACTIVE!

(1) Every communication with the offending attorney needs to be in writing. Don’t go “tit for tat” in the e-mails. WAIT before you hit that send button! Better yet, write a letter on your firm’s stationary and send it as an attachment. That will give you time to cool off. Catalog every unprofessional, abusive tactic in a factual tone. Hint: Write every communication as if the Judge is going to read it.

(2) Don’t take it on the chin. If the objections are garbage and you are entitled to a response, then file the motion. Start setting a record for issue, evidence and terminating sanctions. Keep filing those motions. It only hurts your client if you don’t obtain the discovery you are entitled to.

(3) If the abuse is happening during a deposition, suspend the deposition and go to court and ask for a discovery referee to sit in on the depositions. In the alternative ask that the depositions be held at the courthouse with the Judge on standby for rulings.

(4) Ask the court for an early settlement conference or suggest mediation to the offending counsel. This may sound counter intuitive, but the conflict may be a symptom of the need to resolve the case.

(5) Ask the court for a discovery referee for all purposes with the request that the offending party be responsible for the referee’s fees due to their abusive behavior.

The Moral of the Story: You are an advocate–Go Advocate!

THE FIRST 120 DAYS OF INSURANCE LITIGATION

Katherine Gallo — Wed, 15 Jun 2011 10:00:00 -0800

Bay Area Insurance Coverage Attorney John Podesta brings us this "how to" article on insurance litigation.

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Your clients have been sued by their insurance company for Declaratory Relief. The insurer asserts that there is no coverage under your clients’ liability insurance policy for a claim made against them. In deciding how to proceed, there are a few things to remember in dealing with insurance litigation. First, the duty to defend is a legal question based upon the “potential” that the lawsuit against your client could result in damages covered by the insurance policy. Montrose Chemical Corp. v. Superior Court (1995) 6 Cal. 4th 287, 300 (pdf). For the duty to defend, therefore, think summary judgment, rather than trial. Second, for indemnity (actual coverage): is the carrier defending or not? With regard to indemnity, whether the insurance company is defending affects the burden of proof. Ultimately, the insured should be prepared to prove, in order to recover indemnity or settlement costs, that their liability is in fact covered by the insurance policy.

With regard to establishing the duty to defend early, you will want to prepare two sets of Requests for Admissions. First, you should prepare a series of “truth of fact” admissions seeking confirmation that there is no dispute that the critical facts and allegations against your client demonstrate there is at least a bare potential for liability in the underlying case that is covered by the insurance policy. The fact admission must be carefully tailored to “fill in the gaps” of a broadly written complaint to show the potential for covered damages or that the complaint could be amended to state different causes of action which would be covered. You should also prepare a series of “authentication of documents” requests to establish the written record for purposes of the insurance litigation. Remember that discovery, pleadings and contracts from the underlying liability case is likely not admissible in the insurance case as unauthenticated hearsay, and a foundation must be laid separately. Critical documents will include the insurance policy, pleadings from the underlying case, discovery from the underlying case regarding the factual allegations, and the coverage position letter from the insurer.

Aside from the tactical discovery (the RFAs) obtain a complete copy of the insurer’s claim file which should contain the facts which the insurance company believes supports their claim of non-coverage, and may limit the insurer from new or different facts discovered during the coverage litigation. The company will likely assert privileges based upon attorney-client privilege (if coverage counsel was involved), where the carrier decided to insurance litigation. The carrier may also assert privileges based on confidential commercial information (reinsurance information, reserve information, and pricing information). In the context of early discovery, however, this kind of withheld information is rarely important to the limited legal issue of a duty to defend.

Be prepared, however, to deal with the time limits regarding a motion to compel when such privileges are raised. You may need to compel production if the coverage issues surround the issuance of the policy rather than the terms of the policy as issued. Also, it is possible that certain withheld information might be compelled, and could be used to support a bad faith claim later. If your case involves a dispute regarding the operative terms of the policy that were negotiated, you will want the underwriting file. That file will likely contain the application, the insurer’s quote (offer to provide coverage), the binder (confirmation of the key policy terms negotiated), the policy (whether it was issued consistent with the binder), and any communications between the insurance company and the insured’s representative concerning the policy terms, pricing and issuance.

Interrogatories and depositions are, for the most part, premature in the early stages of the case. They are critical, however, after the duty to defend has been established and the issues turn towards the company’s evaluation and position regarding indemnity.

Once the defense is established, if the coverage issues overlap with the liability issues facing your client, then the coverage case can likely be stayed by making a motion. That means that the carrier will continue defending until the case is resolved, and then use the facts from the liability case to prove non-coverage for any indemnity or settlement amounts. Montrose, supra. The trial court will stay the action after it determines:

what is the exact nature of the claims asserted in the underlying action,
what defenses to coverage are asserted by the insurers, and to what extent, if at all, are they logically related to the liability issues raised in the underlying action,
what factual questions have to be resolved in order to sustain or defeat such defenses,
what is the likely nature of the available evidence,
to what extent, if at all, will the insured suffer prejudice by the enforced discovery of the evidence which tends to support or defeat its claim of coverage or the defenses raised by the insurers and
to what extent, if at all, will a confidentiality order realistically protect the insured from prejudicial disclosure. Haskel, Inc. v. Superior Court (Cal. App. 2d Dist. 1995) 33 Cal. App. 4th 963, 980 (pdf) However, if the coverage issues are unrelated to the liability issues, the court will not stay litigation of the coverage issues. If your client wants a stay, think about these factors as part of the Requests for Admission.

Turning to indemnity, the obligation of the carrier to pay damages on behalf of the insured, the burden of proof is critical. If the insurer is not defending, and the insured is successful in establishing the carrier should have defended, the burden on indemnity shifts to the insurer to prove that there is no coverage under the policy. For example in a case between insurers brought by an one who defended and indemnified an insured against a coinsurer who did not defend or indemnify the insured, the participating insurer has met its burden of proof when it makes a prima facie showing of coverage under the nonparticipating insurer's policy—the same showing necessary to trigger the recalcitrant insurer's duty to defend. The burden of proof then shifted to the nonparticipating insurer to prove the absence of actual coverage. Safeco v. Superior Court (Second District, 2006) 140 Cal. App.4th 874, 881 (pdf).

On the other hand, if the insurer is defending the insured and the dispute concerns whether the actual liability is covered by the policy, the burden is on the insured “ to establish that the insured’s actual liability to the plaintiff is on a covered occurrence under the insurance policy. And, once an insured has made this showing, the burden is on the insurer to prove the claim is specifically excluded. Aydin Corp. v. First State Ins. Co. (1988) 18 Cal. 4th 1183, 1188 (pdf) Secure the defense first, using the facts at your disposal. Determine whether you can obtain a stay of the coverage case or if you want one. Then, focus on establishing the facts necessary to establish coverage.

Tips and Tricks for Taking Telephonic Depositions

Katherine Gallo — Fri, 27 May 2011 09:00:00 -0800

Ran across this helpful blog for taking telephonic depositions by Kramm Court Reporters that I wanted to share with you.

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Everyone is looking for opportunities to save costs these days in litigation. Many attorneys are choosing to take depositions telephonically so as to incur travel costs and to save travel time. Here are some ideas on how to make the telephonic deposition go smoothly.

1. Have the court reporter be with the witness. The court reporter is able to swear in the witness and hear every word. As everyone knows, with teleconferences, if two people speak at the same time or there is any type of lime interference. It is hard to hear or understand. Having the court reporter with the witness ensures a better record.

2. If because of scheduling conflicts, or whatever reason, the court reporter is not with the witness have a notary public swear in the witness onsite. Sometimes attorneys ask a court reporter to swear a witness in over the phone. This is not considered to be legal or proper. The court reporter has no real idea who is sitting at the other end of the line.

3. Advice to reporters (especially if there are multiple people on the line): Rather than writing down each person’s information, including address and phone number(s), just get the attorney’s full name and website. IT is much easier to look up the attorneys and create your appearance page(s) from a website than from scribbling down information over a phone.

4. Court reporters, speak up if you are not understanding something, can’t hear, or don’t know who is speaking. Before the depositions starts, make a statement, for example, "Please identify yourself before your speak. There are multiple voices, and it is difficult to differentiate between them." If someone starts speaking, and you are not sure who it is, you may interrupt with, "Excuse me. Who is speaking?" After a while, people will get the hang of it.

5. If possible, get a service list before the deposition begins and start inputting your appearance page or get a copy and check off names. You will need to know who the different participants are.