Resolving Discovery Disputes - Using discovery to reach evaluation, mediation and trial goals

As a discovery referee, I normally come into cases when there already is a problem. Either discovery in the case is out of control, or the antagonism among counsel is so great that the Law and Motion Judge is done dealing with the parties. In many instances, I see an all out war between counsel, with discovery being used as a weapon. There is no rhyme or reason to the 105 special interrogatories that were served, the 200 categories of documents being demanded or the 20 depositions that have been noticed. The meet and confer process has broken down into a rampage of insults. Yet nobody has bothered asking the demanding party the fundamental question “Why do you need this?”  When that question is finally posed by me, too frequently that counsel cannot answer the question. In such circumstances, it is clear to me that the attorneys have no idea what direction they want to case to proceed, no plan of attack and no idea what they are trying to accomplish. In other words--No Discovery Plan!

It is at the beginning of a case that you need to plan your litigation strategy. Before you propound discovery you need to go through three steps.

First, you need to determine your goal: Are you obtaining discovery to evaluate the case for mediation, to file a motion for summary judgment/adjudication, or to prepare for trial? Each goal has a different strategy and certain discovery devices are better suited for each goal.

• In evaluating the case for mediation, form interrogatories, a preliminary set of requests for production of documents and an informal exchange of information between the parties may be all you need.
• If you are going to trial, you are going to need admissible evidence, so the formal exchange of information with verification and authentication is going to be necessary as well as testimony under oath.
• The discovery is going to have to be even more pinpointed if you are planning to file a motion for summary judgment/adjudication. The evidence is going to have to be verified, authenticated and uncontroverted. You are going to have to make sure that any declaration being filed by the opposition will not create a triable issue of fact. The discovery devices most effective to elicit “motion-ready” responses that can be attached to your MSJ are requests for admissions and depositions. Requests for admissions allow no wiggle room. Also, you can use them to have the opposing party authenticate documents you will need to make or oppose your MSJ, or for trial [C.C.P. §2030.010 (pdf)]. Depositions allow you to nail down the testimony – and a declarant’s subsequent declaration attempting to disavow his uncorrected deposition testimony will not defeat the motion. Weil and Brown, Civil Procedure Before Trial (TRG 2010) §10.155 citing D'Amico v. Board of Med. Examiners (1974) 11 C3d 1 (pdf)

Second, you need to determine the essential elements of each of the causes of action and the evidence you are going need to prove or defeat that cause of action.

Third, you need to determine what discovery device is best suited to obtain the evidence to achieve your goal.

After this Three-Step Analysis, serve your discovery.

When I started this blog I asked fellow attorneys what issues they would like me to address.  I received this response from a lawyer in San Francisco: 

Key problem – judges that won't crack down on parties that lodge bogus objections and don't answer interrogs, and object to discovery demands that are straight forward. Amount of sanctions awarded is usually pitiful. 

I can easily respond to this complaint by saying “Judges want to be liked,” or “Maybe the judge was intimidated by the big law firm” or “The judge is trying to establish a working relationship with the parties and awarding sanctions makes the losing party more hostile” or “The judge may have seen fault on both sides of the table.”  However, the bottom line is I don’t know why your judge didn’t give you sanctions and neither do you, unless you argued the issue at the hearing. 

In order to overcome the reluctance of the judge, you need to be proactive in your moving papers and your arguments at the hearing regarding your request for sanctions.  Don’t be timid on asserting your position on this.  It is just as important as your other arguments.  Filing motions and the imposition of sanctions curbs discovery abuse and the 1986 Discovery Act recognizes this.  Thus you need to bring the motion and start establishing a pattern of opposing counsel’s discovery abuse and create a record of an imposition of sanctions.  Moreover, remember that judges are reluctant to impose a terminating sanction unless a history of lesser sanctions have first been imposed or prior discovery orders have been violated. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶ 8:1215 et seq.  

When seeking an order to recover sanctions, C.C.P §2023.040 (pdf)  requires your  discovery motion to contain the following:

Notice --The notice of motion must expressly state that you are seeking [monetary, issue, evidence or terminating] sanctions as well as the identity of the person, party or attorney against whom sanctions are being sought. 

Points and Authorities–Your moving papers must state the facts of the noncompliance, the authority as to why it is discoverable and the authority for the award of sanctions.  Don’t make the argument requesting sanctions in your P’s and A’s an afterthought.  Spend time on it.  List all the garbage objections to very basic questions and the law’s supporting your interrogatory or request. For example: “The identity and location of witnesses are not protected by attorney work product or the right of privacy.  C.C.P. §2017.010 (pdf) clearly states that the identity and location of witnesses are discoverable.”   Detail all the stonewalling, hostility and lack of good faith efforts during the meet and confer process.  Make it clear that your train has not left the station and you are losing precious trial prep time.   Make sure you site the authority for the sanctions you are requesting. 

Declaration--Declarations need to state (1) facts of the noncompliance and discovery abuse in which the declaring party has personal knowledge (If necessary use multiple declarations) (2) the meet and confer process, (3) time you have spent and are going to spend on each aspect of the motion, (4) your hourly rate  and (5) the calculations for the sanctions.  Again, do it in detail!!  Hint:  Do not cut your hours.  You need to let the judge know how much money this discovery dispute is costing your client. 

 In your moving papers point out to the court:

C.C.P. §2023.030 (pdf)(a)  states that “If a monetary sanction is authorized by any provision of this title (and almost all of them are), the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  [Emphasis added]

The purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture, and the avoidance of the trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.  California Discovery Citations (TRG 2010) ¶1:6 citing Parker v. Wolters Kauwer U.S., Inc. (2007) 149 CA4th 285 (pdf) at 301.

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 2009) ¶8:1213 citing Caryl Richards, Inc. v. Superior Court (1961) CA2d 300 at 303. 

Discovery sanctions are not reported to the State Bar. See Bus. & Prof. Code. §6068(o)(3) (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 2009) ¶8:1241.5 citing Ghanooni v. Super Shuttle of Los Angeles (1993) 20 CA 4th 256 (pdf) at 261. 

 At the hearing:

Be prepared to argue for sanctions.  Do not be afraid to make a record.  If you think that the judge is still reluctant to give you sanctions, then suggest that the sanctions be stayed to be lifted by the court at a later date (i.e., when the party complies with the order or, the one I like to use, by the trial judge.).  This is  important, because you need to establish a history of abuse.  Past conduct that has already been considered by the court cannot be the basis for additional sanctions. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶8:1209a citing Andrus v. Estrada (1995) 39 CA4th 1030 (pdf) at 1043. 

The court needs to take discovery motions seriously.  They impact a case just as much as and in many cases  more than demurrers and  motions for summary judgment.  However, it is your job to educate the judge as to why you are entitled to sanctions.   Good luck!!

 Let us know if  you are successful in your next quest for discovery sanctions.  

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 (pdf) at 685 (Pre-1986 Discovery Act) 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 (pdf), 1410.

Weil and Brown Civil Procedure Before Trial (TRG 2009) §8:1150 suggests that you may be able to obtain relief under C.C.P. Section 473(b) which allows for relief generally from “any judgement, order or other proceeding” on a showing of “mistake, inadvertence, surprise or excusable neglect” citing Zellerino v. Brown (1991) 235 Cal. App. 3d 1097 (pdf).  In that case the Court of Appeal stated that relief can be obtained under CCP § 473(b) when the Discovery Act does not provide a remedy. However, Zellerino involved experts and none of the cases citing Zellerino involved the 45-Day Rule.  To date, I have never heard anyone being successful and after 20 years of the Discovery Act, I seriously doubt that any court would give relief under CCP § 473.

So now what do you do? The answer is another discovery device. In Carter v. Superior Court (1990) 218 CA3d 994 (pdf) the court held even though a party had missed the deadline for compelling inspection of documents under C.C.P. Section 2031 it did not bar him from requesting the same documents be brought to a deposition. Therefore, you can serve any of the following discovery devices and pretty much get the same result:

• Interrogatories–Use requests for admissions coupled with Form Interrogatory 17.1 and request for documents.
• Request for Production of Documents –Use deposition notices with a document requests, corporate deposition notices with a document request and/or third party subpoena for deposition with documents.
• Request for Admissions –use special interrogatories or deposition notices

One thing you can’t do is reserve the same interrogatories, requests for documents and/or requests for admissions and “reset the clock.”  Sexton at 1408 citing Professional Colleges, Magna Institute, Inc. v. Sup. Ct. (1989) 207 CA 3d 490.

Your other alternative is let the objections stand.  Then at trial serve a motion in limine excluding all evidence that was not produced in discovery. If a party does not cough up the info during discovery they can’t use it at trial.

These are a few suggestions on the dreaded draconian 45-Day Rule. Does anyone have any more?

A few months back I received an e-mail from a court reporter regarding a very unpleasant incident that occurred in a deposition. It went like this:

So...during questioning the attorneys were apparently getting to a very sensitive area of inquiry -- and [Attorney #1] had already argued with all of the other attorneys -- so, he stared me straight in the eye and said, "God damn it, when you're asked to read a question back, you don't just read a question, you read the answer also, do you hear me? Now I've got to object and say it's asked and answered when if you would just do your fucking job I wouldn't have to do so. When it happens again, you better read it the right way."

I was in shock. I just looked at him, and I didn't say anything because then [Attorney #2] said..."[Court Reporter], let's go on." And he asked another question. We went on for a few more minutes, and the witness said she didn't understand. She asked me to read the question back for her. So, I did. And immediately after I started reading, [Attorney #1 ] said... “You fucking idiot. Didn't I tell you that when you read the question back you are to read the answer too. You aren't going to do anything until you do exactly what I said." I couldn't believe he was talking to me like this, and I was getting more and more livid with every word. I looked at the attorneys and they were just sitting there stunned too. [Attorney #2] said, "[Court Reporter], don't worry about him, let's just...", and then [Attorney #1] said again..."No. You're not telling her to do anything. She's going to sit there and do exactly what I told her to do, and we're not going any further until she does. You either read it my way or...’ -- and he went on and on.

The court reporter advised me that she admonished the attorney for speaking her that way and left the room. She eventually went back in and finished the deposition. 

Besides the breach of Section 9 of the California State Bar Attorney Guidelines of Civility and Professionalism (pdf),  this was just plain stupid on the part of the attorney. His final outburst had come after he had constantly interrupted the witness, interjected himself while other attorneys were asking their questions and argued at the top of his lungs with numerous counsel. The transcript was a disaster. It would have been utterly useless in any motion for summary judgment and probably at trial. If it was used at trial, the words by Attorney #1 would come back to haunt him as you can bet opposing counsel made sure that  the Judge assigned to the case would know what happened.  Also, you know that opposing counsel would make every attempt to have that portion of the deposition read in front of the jury.

The moral of the story is that court reporters are the caretakers of the deposition. Their job is to accurately record all statements made in the deposition for later review by attorneys, judges and appeals courts. It does nobody any good if the court reporter can’t get down an accurate rendition of the deposition. So, at the beginning of the deposition, advise the court reporter and all parties in the room that the court reporter is the “Goddess of the Transcript” and she is to immediately tell you all when she can no longer get an accurate rendition of the deposition. If the yelling, hostility and abuse continues, then recess the deposition and go to court and get a protective order and/or request a referee be appointed to sit on the continued deposition. See C.C.P. §§2025.420 and 639(a)(5). Do it sooner than later because your goal is an accurate transcript.

Official Form Interrogatories--General (Disc-001)  prepared by the Judicial Council were intended to be used to cover basic matters as well as being a foundational discovery device in personal injury and contract cases.  They also contained sub-parts which were not allowed when serving special interrogatories and they were not subject to the "Rule of 35".  See California Code of Civil Procedure §§2030.030(a)(2) and 2030.060.  Their use was usually the first volley in the discovery battle.

For years the Courts had found that the Form Interrogatories were objection proof as to form with minor exceptions.  These minor exceptions usually involved case specific issues such as  checking the box with the definition of "INCIDENT" versus creating your own definition for "INCIDENT" and cases which involve complex business transactions.   

Then came the case of Nacht & Lewis Architect, Inc. v. Superior Court (1996) 47 CA4th 214 (pdf) which stated that Form Interrogatory 12.2 which asks: 

"Have you or ANYONE ACTING ON YOUR BEHALF interviewed any individual concerning the INCIDENT? (If so, identify them.)" 

The Third District Court of Appeal found that Form Interrogatory 12.2 was objectionable on the grounds of work product stating:

[c]ompelled production of a list of potential witnesses interviewed by opposing counsel would necessarily reflect counsel's evaluation of the case by revealing which witnesses or persons who claimed knowledge of the incident (already identified by defendants' response to interrogatory No. 12.1) counsel deemed important enough to interview.

For the last 14 years, litigants have objected to Form Interrogatory 12.2 as well as other Form Interrogatories in 12.0 series based on Nacht & Lewis.  However, on March 4, 2010, the Fifth District Court of Appeal ruled in the case of Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf) that Form Interrogatory No. 12.3 which states: 

“Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from any individual concerning the INCIDENT? If so, for each statement state..." 

was not protected by the work product privilege.  The court stated at pages 768,769:

... witness statements are classic evidentiary material. They can be admitted at trial as prior inconsistent statements (Evid. Code, § 1235), prior consistent statements (id., § 1236), or past recollections recorded (id., § 1237). Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use.   Moreover, a witness statement could contain information favorable to the party denied access, who otherwise could use the statement to refresh the witness’s recollection, impeach the witness’s testimony, or rehabilitate the witness after cross-examination. These impacts on the quest for truth simply are not justified by the policy of encouraging lawyers to prepare their cases for trial or the policy of protecting the diligent attorney from others who would take advantage of his or her industry. (§ 2018.020.) “The purpose of the [work product] doctrine is to prevent incompetent counsel from taking unfair advantage of his adversary’s efforts in preparation for trial, not to suppress relevant testimony which happened to have been obtained by the opposition.” (Jasper Construction, Inc. v. Foothill Junior College Dist. (1979) 91 Cal.App.3d 1, 16 [153 Cal.Rptr. 767].)

With these two cases in conflict with one another, the California Supreme Court has granted review.  In the meantime, Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf) is not citable pursuant to California Rules of Court.   

I believe that the California Supreme Court will uphold Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf).   First of all, the basic purpose of the discovery is to take the "game element" out of trial preparation.  See Weil and Brown Civil Procedure Before Trial (TRG 2009) ¶8:1 citing Greyhound Corp. v. Superior Court (1961) 56C2d 355, 376; Emerson Elec. Co. v. Superior Court(1997) 16 C4th 1101, 1107.  Second, knowing whether or not there are witness statements is not protected under a document production as you would have to disclose the information in a privilege log, so why should it be different for interrogatories.  Third, California has a work product statute--C.C.P.  §2018.010 et seq.-- which codifies California law which makes witnesses statements qualified work product.  And, finally, C.C.P §2018.060 allows allows any party to request an in camera review of the documents, which the defendants in Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf). did not request.    Do you agree?