Resolving Discovery Disputes

Construction Attorneys--It Is Time to Check the Box!!

Katherine Gallo — Tue, 01 May 2012 08:45:00 -0800

In May of 2007, I received a phone call from Peter Glaessner, a member of the Discovery Committee and Civil and Small Claims Committee of the Judicial Council. He asked me if I could put together Judicial Council Form Interrogatories for construction litigation. I told him that I probably could get him a working draft by the end of that summer. Little did I know how extensive of a project this would be.

I began the process by creating a statewide committee with three plaintiff counsel, three developer counsel, three subcontractor counsel, two insurance coverage counsel, one architects and engineer counsel and one public entity counsel. Each of these members are prominent lawyers in construction litigation and many have spoken at West Coast Casualty's Annual Construction Defect Seminar.

Two years and ten drafts later we submitted our final version of the Form Interrogatories–Construction Litigation to the Discovery Committee of the Civil and Small Claims Advisory Committee. The final draft had approximately 90% consensus with various members having issues with certain parts. The goal of the final version of the Form Interrogatories–Construction Litigation was to be all-inclusive with the idea that once vetted through the Civil and Small Claims Committee and the comment period some of the proposed interrogatories may be removed.

In 2011, the Judicial Council formed a second committee to work on the final version of the Form Interrogatories–Construction Litigation. Included in that committee were two construction litigation attorneys from Consumer Attorneys of California, two construction litigation attorneys from California Defense Council, and myself. The five of us worked for more than six months negotiating, rewriting and finalizing the final draft, which was provided to the Civil and Small Claims Committee of the Judicial Council in November of 2011.

Five years, twenty drafts and hundreds and hundreds of non-billed attorney hours later, the Civil and Small Claims Committee of the Judicial Council is recommending the Form Interrogatories – Construction Litigation be adopted and has invited the public to comment.

The Civil and Small Claims Committee states in their Invitation to Comment that:

The proposed Form Interrogatories—Construction Litigation (form DISC-005) will follow the same format as the other Judicial Council form interrogatories. The instructions at the beginning are essentially the same as in the other form interrogatories, with two exceptions.

First, the use of the form will be limited to smaller cases, except with leave of court. In residential construction cases, the proposed form interrogatories are not intended for use in actions that involve more than five residential units, and in complex cases, they are not to be used until after a court has found good cause. Specific comments are requested on these limitations (see the box at the end of this invitation).

Second, the instructions recognize that in many construction cases a document depository is created, so they permit responses in the form of identifying those documents in such a depository that contain the information sought in an interrogatory.

Other notable aspects of the proposed form interrogatories include the following:

As with other civil form interrogatories, parties will be able to attach additional individually crafted interrogatories should they wish.

The definitions in the construction form interrogatories parallel those in the general form interrogatories but add terms specific to construction litigation. In addition, because the use of “Incident” as a defined term would be confusing in these interrogatories, that term has been replaced with “Construction Claim” and “Construction Defect Claim.”

The proposed construction interrogatories are intended to serve as a single integral set of interrogatories rather than as a discrete set of specialty interrogatories for use in addition to or as a supplement to other form interrogatories. Hence, they include interrogatories on several topics included in the general civil form interrogatories, with some tailored to more specifically address construction cases.

None of the questions concerning personal injury from the general form interrogatories are included in the proposed form. Such interrogatories would only infrequently be applicable in a construction case, and the committee concluded that their presence in this set would unnecessarily complicate the form.

The Invitation to Comment also is requesting comments on the following:

Does the proposal appropriately address the stated purpose?

Would the proposed form interrogatories be appropriate and helpful in construction litigation as limited in the instructions? That is, in residential construction cases involving no more than five units, in commercial construction cases not deemed complex, and in complex construction cases only with permission of the court?

Should the instructions allow the form interrogatories for use in somewhat larger residential construction cases as well? Would they be appropriate and useful in actions involving up to 10 residential units? Would some other number—higher or lower—be more appropriate?

Should the defined terms remain formatted as in the attached, in boldface and all capital letters or, in order to make the form more readable, be changed to just boldface, without the capitals? An example of such formatting of defined terms can be seen in Form Interrogatories – Family Law (form FL-145).

I want to thank each of the committee members for their hard work and dedication. Despite their differences with one another on various issues, as a whole we worked hard as a team and were proud of our end product. I also want to thank Anne Ronan, staff Attorney for the Judicial Council who too worked endless hours on this project. Most of all I want to thank the Civil and Small Claims Committee for recognizing all the hard work the attorneys have dedicated to making the Form Interrogatories–Construction Litigation a reality by recommending the interrogatories and inviting the public to comment.

If you have any questions regarding the Form Interrogatories–Construction Litigation, please do not hesitate to contact me.

Can You Take a Deposition in Seven Hours?

Katherine Gallo — Tue, 24 Apr 2012 12:17:00 -0800

n February 22, 2012 Assemblyman Mike Gatto http://asmdc.org/members/a43/ introduced a Assembly Bill 1875 bill which would modify C.C.P. Section 2025.290 stating

Unless otherwise stipulated to or ordered by the court,

a deposition is limited to one day of seven hours. The court shall allow additional time if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

This is the exact language used by Rule 30 of the Federal Rules of Civil Procedure titled “Depositions by Oral Examination.” and an attempt to have the California Code Of Civil Procedure be more on line with the Federal Rules of Civil Procedure. See http://www.law.cornell.edu/rules/frcp/rule_30

Before you react, realize that seven hours of deposition testimony in one day is a lot of testimony time. It would take the following schedule to complete a seven hour deposition in one day.

8:30 – 10:00 a.m. 1.5 hours of actual testimony

10:00 – 10:15 a.m. Break

10:15 – 11:45 a.m. 1.5 hours of actual testimony

11:45 – 12:45 p.m. Lunch

12:45 – 2:15 p.m. 1.5 hours of actual testimony

2:15 – 2:30 p.m. Break

2:30 – 4:00 p.m. 1.5 hours of actual testimony

4:00 – 4:15 p.m. Break

4:15 – 5:15 p.m. .0 hours of actual testimony

The bill also still allows a party to bring a motion upon the showing of good cause for additional time. So now ask you,

Should this Bill be passed?

On February 22, 2012 Assemblyman Mike Gatto introduced Assembly Bill 1875 which would add §2025.290 to the California Code of Civil Procedure. If the bill is passed it would limit the time to take a deposition. The proposed new section would read:

Unless otherwise stipulated to or ordered by the court, a deposition is limited to one day of seven hours. The court shall allow additional time if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

This is the exact language used by Rule 30 of the Federal Rules of Civil Procedure titled “Depositions by Oral Examination”.

Before you react, realize that seven hours of deposition testimony in one day is a lot of actual testimony time. It would take the following schedule to complete a seven hour deposition in one day.

8:30–10:00 a.m. 1.5 hours of actual testimony

10:00–10:15 a.m. Break

10:15–11:45 a.m. 1.5 hours of actual testimony

11:45–12:45 p.m. Lunch

12:45–12:15 p.m. 1.5 hours of actual testimony

2:15–2:30 p.m. Break

2:30–4:00 p.m. 1.5 hours of actual testimony

4:00–4:15 p.m. Break

4:15–5:15 p.m. 1.0 hours of actual testimony

The bill would also allow a party to bring a motion for additional time upon the showing of good cause. So now I ask you,

Should this Bill be passed?

Save Time, Money and Angst -- MEET AND CONFER

Katherine Gallo — Mon, 02 Apr 2012 10:40:00 -0800

I recently received an e-mail from a pro-per who asked me

“ Is there any chance you can send me a link to an example "meet & confer" declaration form”

Wouldn’t it be nice to have a Judicial Council form where you could check the boxes on such a form and be done with it? The judge should just assume that you did what needed to be done and grant your motion. Isn’t that the way it should be? I mean, really, aren’t we all professionals and if you say that you met and conferred in good faith your word should be enough. Right? Not quite…

The purpose of the “meet and confer” requirements set forth in C.C.P. §§ 2025.450(b)(2)(pdf)), 2025.480(pdf), 2030.300(b)(pdf), 2031.310(b)(pdf), 2032.250(pdf) and 2033.290(pdf) was for the lawyers to revisit their position, in good faith discuss a resolution and avoid unnecessary discovery motions.

Unfortunately, times have changed since the Discovery Act of 1986 went into effect. No longer can a law firm afford to have an associate sit at the knees of a respected senior partner and watch and listen and not bill. No longer do lawyers have time for the “two martini” lunch in order to get input from their colleagues about cases they are having trouble with. No longer is the legal community so small that you know you are going to see opposing counsel again and fear their retaliation.

For the last twenty years, many of us, had to learn how to litigate by doing and suffering the repercussions. Bad habits, abuse and inaccuracies regarding the law have begat more bad habits, abuses and inaccuracies. It seems like more and more cases are doing battle in the gutter then in the courtrooms. This is most evident in the in the discovery battles and the failure of counsel to “meet and confer” in good faith.

Despite a party's threat that they will seek sanctions, no court is going to award sanctions if you don't meet and confer in good faith and in fact will sanction you if you don't. See C.C.P. §2033.290 (pdf)

The leading case on “meet and confer” requirements is Obregon v. Superior Court (1998) 67 CA4th 424 (pdf). The Second Appellate District stated that in determining whether a party has met and conferred met and conferred in good the court should consider the following relevant factors:

1. The history of the case and the past conduct of counsel as it reflects upon the bona fides of their efforts;

2. the nature and extent of the actual efforts expended;

3. the nature of the discovery requested and its importance to the case;

4. the size and complexity of the case;

5. the effect of expense upon litigation of the case; and

6. whether or not the discovery propounded would be so expensive for the other side that its intent was to force settlement other then to reach the merits of the case. Obregon at 431.

Obregon is a helpful case for the court’s, but what about the litigants. What should they be doing? According to Townsend v. Superior Court (1998) 61 CA 4th 1431 at 1439 (pdf),

“a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." [Emphasis added]

In order to meet this standard, each side has their own responsibilities. These are my suggestions:

PROPOUNDING PARTY

First: Once you have determined that you will need supplemental responses to you propounded discovery, call opposing counsel and set up a time to meet in person. Tell him/he that you will prepare a written response to his objections so you can go through them.

Second: Review your requests and determine whether or not the objections are valid. Prepare your written “meet and confer” letter in the format of a Separate Statement of Items in Dispute (pdf). That way you are ready to file your motion to compel further responses, if it becomes necessary. Remember a “single brief letter” with no explanation why the discovery was proper does not constitute a reasonable and good faith attempt at informal resolution. See Obregon at 432.

Third: Prepare a draft protective order to bring to the meeting if any objections are as to privacy, trade secrets, etc.

Fourth: Consider bringing in a discovery referee to mediate the discovery disputes, do an in camera review and/or to make a finding if necessary.

Fifth: Make sure you get a written stipulation extending your time to bring a motion to compel further responses. The meet and confer process DOES NOT extend the 45 Day limit within which the propounding party must file a motion to compel further responses. See Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681 at 683-684 (pdf).

At the meeting:

Propose a protective order;
Ask for authorizations for third party custodian of records instead of the document request; and/or
Agree to narrow the scope of discovery by issues, time, location, etc.

RESPONDING PARTY

First: Offer or agree to an in person meeting to meet and confer.

Second: Prior to the meeting, revisit your objections and determine whether any are garbage objections. If any are, offer to withdraw them.

Third: Determine what is your real complaint to the discovery requests:

If vague and ambiguous, offer definitions and/or a revised version which you will answer.
If overbroad and burdensome, then offer a revised version narrowing the scope and/or offer signed authorizations to third party custodian of records.
If you are objecting on grounds of privacy, trade secrets, etc., prepare a protective order and bring it to the meeting.

At the meeting: offer your compromises and don’t try and defend your garbage objections.

MORAL OF THE STORY: Litigators need to put down the sword and talk to one another when the discovery battles begin. These battles cost your clients money and you too much time and angst.

Am I Naïve to Think Something Should Be Done?

Katherine Gallo — Mon, 27 Feb 2012 10:00:00 -0800

Last week I received the following e-mail from one of my readers:

I have read your articles with interest and respect for some time now; I find them excellent plus.

I have a friend who is acting pro per in a civil case. Suffice it to say she can't afford or get an attorney.

Opposing counsel has made a mockery of discovery by making (putrid) garbage objections to 99% of discovery sent him. He uses every boilerplate objection and has even objected saying some discovery was "unintelligible" when my friend didn't define a name that was the name of the defendants product…

Opposing counsel is clearly abusing the intent of discovery dragging my friend into "Meet and Confer Hell" while knowing that as a pro per, my friend can not get anything more at this point than her costs of filing a Motion to Compel (which she has won) and photocopy costs. On the other hand, and I speak with authority, opposing counsel has created enough work for himself to literally turn a reasonably moderately sized case into a major matter and I would estimate he has made more than $250,000 in fees from his client (no insurance company involved) in 2011.

My point being: There is clearly a wrong here (major discovery abuse and a lack of any good faith) and no remedy.

Am I being naive in thinking something should be done or a remedy created?

This is a common problem for pro pers as well as parties who don’t have a lot of money. It looks hopeless as you are being out muscled by a party who has deep pockets and a lawyer who’s intent is to abuse the discovery process and run up his bills.

So what can you do? GET THE COURT INVOLVED!!

You need to file a motion to compel further responses requesting a protective order pursuant to C.C.P. §§ 2025.420, 2030.090, 2031.060, and/or 2033.080 and an award of monetary, issue and evidence sanctions.

TELL THE COURT:

1. The facts of the case in detail, including the procedural history of the case.

2. The discovery you are attempting to get.

3. The garbage objections you are receiving.

4. The futility of the meet and confer process.

5. Your good faith responses to opposing party’s discovery.

6. All Motion for Summary Judgment/Summary Adjudication, arbitration, mediation and/or trial dates.

ASK THE COURT TO:

1. Stay all discovery propounded by opposing party until your discovery is complied with.

2. Impose deadlines for discovery responses with a return date to the court to show compliance.

3. Implement a discovery plan and to oversee all future discovery.

4. Rule that all depositions are to be held at the courthouse with the judge available to rule on all objections.

5. Appoint a Discovery Referee with the opposing party to pay for the vast majority of the referee’s fees.

6. Award sanctions pursuant to C.C.P. §177.5 (pdf)—up to $1500 in sanctions payable to the court for violation of court order.

7. Award issue and evidence sanctions.

8. Schedule an early settlement conference.

REMEMBER: You need to be pro active. You can’t sit back and hope that justice will prevail.

Don't Get Intimidated and Play by the Rules

Katherine Gallo — Tue, 14 Feb 2012 11:15:00 -0800

Today I read a great article by Minnesota attorney Randall Ryder titled "New Attorney? Don’t Get Intimidated by Opposing Counsel." The article struck a cord with me as it is a proponent of the same philosophy that I am advocating in my own blog—don’t be intimidated by a bully, do not react with words in kind and use the “Rules” to win. Though the article is directed towards new attorneys, this is good advice for every attorney.

New Attorney? Don’t Get Intimidated by Opposing Counsel

Being a new attorney can be overwhelming, regardless of whether you are a solo or work at a big firm. One way to help ease the transition is finding a mentor to show you the ropes.

Even with a mentor, however, one of challenges for new attorneys is interacting with opposing counsel. A common complaint among new attorneys is how badly they are treated by more experienced opposing counsel. Here are some tips to help you stand your ground and reduce the intimidation factor.

The game within the game

Law school does not teach you about the game within the game—the tricks and mind games that some attorneys utilize during a case. Of course, not every attorney plays games, but you need to be prepared for the ones that do.

Frankly, just knowing that some attorneys play games is a key insight. Some young attorneys blindly believe everything opposing counsel says—which can drastically alter the course of a case if you don’t know any better.

I can think of a long list of things that opposing counsel threatened or promised to do—99% of which never actually happened. At the time, however, those threats caused me to underestimate or re-think my case or strategy—which is exactly what they wanted.

Keep your head on a swivel—and don’t believe the hype.

Stick to the rules

If opposing counsel has missed a deadline, omitted certain discovery documents, or generally seems to manage their case with no regard for the rules (state or federal), dont be afraid to call them out.

The rules are the rules. While certain rules may be treated more like guidelines by some attorneys, you are not bound to share their interpretation. They might be testing you, they might be used to flaunting the rules with no repercussions, or they might not be paying attention.

If something seems amiss, double check the rules, and if necessary, call out opposing counsel. The rules are there for a reason.

Don’t second guess your opinion of the case (or don’t make it obvious)

In the majority of my cases, I represent the Plaintiff. Most of the time, I get a phone call from opposing counsel blabbing on and on about how my case is terrible, I have no idea what I’m doing, etc., etc. My favorite part about these calls is after usually ten minutes of this, I am presented with a “nuisance value” offer to settle the case.

The first couple of times I didn’t immediately dismiss the case, but I did start second guessing certain aspects of my case. In the long run, those initial calls didn’t change the case, but they did cause an initial road bump. Don’t let that happen to you.

When I get those calls now, I let opposing counsel talk as long as they want, thank them for the phone call (and settlement offer), and then get off the phone. I rarely engage in a pseudo summary judgment argument over the phone—that is why we have judges.

If there is something I need to reconsider, I am not going to let opposing counsel know that I have doubts about my case. On the other end of the spectrum, I also tend to refrain from revealing additional information. The bottom line: resist the temptation to engage in a motion hearing over the phone, it rarely turns out well.

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?

"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).