Decorative Scales of Justice in the CourtroomIn most practices areas, facts are king. The attorney who can discover and present the best “facts” will be the most persuasive when presenting their case to the judge or jury. However, some cases can be won in the law and motion department with a Motion for Summary Judgment and/or Summary Adjudication.  In these cases, the facts are less important than the law. If your case is one that you can win as a matter of law based on inconvertible facts (or the opponents admitted facts) and you believe that a Motion for Summary Judgment or a Motion for Summary Adjudication is appropriate, you need to develop a discovery plan specifically tailored to these motions.

As you know, a Motion for Summary Judgment and/or Summary Adjudication must be supported by admissible evidence. See C.C.P. §437c(b)(1). The moving party must present admissible evidence in support of each undisputed material fact necessary to entity them to judgment (or adjudication of the issue) in their favor. Therefore, if there is no admissible evidence with regard to a material fact, the motion will be denied. The discovery devices listed in order of most the useful to least useful for these motions are:

(1)       Requests for Admissions

(2)       Depositions

(3)       Interrogatories

(4)       Requests for Production of Documents.

Requests for Admissions are the most useful. The main purpose of Requests for Admissions is to set issues to rest by compelling admissions of things that cannot reasonably be controverted.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2015), ¶8:1256, citing Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 C3d 256, 261. If a party admits key facts, including legal conclusions, and/or authenticates documents you are in a better position to win a motion for summary judgment or summary adjudication.  Because a party can deny a request for admission, you should also be serving Form Interrogatory #17.1 as well as a Document Request asking for all documents listed in Form Interrogatory #17.1(d) to make sure that any questionable or frivolous denials are exposed.  See my blog “How to Write Requests for Admissions.”

Depositions are the “next best” discovery method after Request for Admissions. If there are facts, documents, etc. that require an explanation the witness with knowledge is the best means of obtaining this evidence, especially when your opposing counsel provides evasive or non-responsive answers to written discovery. However, the lawyer must be careful to ask precise questions so that there is a clear question and answer for purposes of supporting one or more facts in the separate statement.

Interrogatories are the third most useful discovery device. Interrogatories are good for establishing the basic nature of claims being presented, witnesses that might be available or other such broad based questions. They are usually not precise enough to support Motions for Summary Judgment, except when they are incredibly narrow. However, where the Motion for Summary Judgment is based on an absence of evidence that the opposing side has to support their case, an interrogatory may be useful to show that they were given ample opportunity to present that evidence.

Requests for Production of Documents, while essential, are only preliminary. One mistake young lawyers make (and some older ones) is that they believe if a party produces a document it is admissible in evidence. In fact, the Production of Documents even with a verification neither authenticates any document nor establishes the statements made therein.  Thus, it is important to follow up by using the Judicial Council Form Request for Admission and ask for authentication of documents, in addition to obtaining an admission that the document was, for example, sent by mail in the ordinary course of business to establish that the document was not heresy.

One common pitfall lawyers often make in filing a Motion for Summary judgment/summary adjudication is the timing. These motions require an exorbitant amount of time for notice–75 days (plus five for mailing). The last day these motions can be heard is 30 days before trial. Thus the last day to file a Motion for Summary Judgment and/or Summary Adjudication is 105 Days before Trial–that is before expert disclosure (50 days before trial) and the  discovery cutoff (30 days before trial).

Moral of the Story:  The decision to file a Motion for Summary Judgment and/or Summary Adjudication must be considered early in a case so you have adequate time to develop a discovery plan and obtain the discovery you need to file a successful motion.

 

Exasperated JudgeThere are very few discovery cases that come out each year.  Usually they are are significant and involve privileges such as Coito v. Superior Court and Catalina Island Yacht Club v. Superior Court.  The newly reported case  Mitchell v. Superior Court (2015) 243 CA4th 269 is not one of those cases.  However, it does demonstrate a trial court’s error in excluding witnesses at trial, because it did not understand the definition of “INCIDENT” in the Judicial Council Form Interrogatories and what the standard is in issuing evidence sanctions regarding discovery abuse .

The case involved an auto accident in which plaintiff was injured.  Defendant served Judicial Council Form Interrogatories which included Interrogatory No. 12.1.   Interrogatory No. 12.1, which is  under the 12.0 Investigation—General Series, reads as follows:

12.1 State the name, ADDRESS, and telephone number of each individual

(a)  who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT;

(b) who made any statement at the scene of the INCIDENT;

(c) who heard any statements made about the INCIDENT by any individual at the scene; and

(d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).

In her answers to this interrogatory, plaintiff only identified one witness.  Subsequently plaintiff identified three other witnesses whom she intended to call at trial to describe her how the accident affected her physically and how it impacted on her ability to do her job.  The trial court granted defendant’s motion in limine to exclude the testimony of the three witnesses for plaintiff’s failure to divulge their identity in the responses and supplemental responses to interrogatory 12.1.

The Second District Court of Appeals found that the trial court abused it’s discretion stating:

We read interrogatory No. 12.1 to seek the identities of percipient witnesses, witnesses who were at the scene immediately before or after the accident, those privy to statements by percipient witnesses to an accident and those who might have personal knowledge of the accident itself. The interrogatory does not seek the identity of witnesses—such as those whose testimony was excluded by the trial court—who may testify to the physical injuries or physical disabilities suffered by a plaintiff as a result of the accident. Our view that interrogatory No. 12.1 should be narrowly construed to refer to witnesses of the incident itself is bolstered by other form interrogatories, in particular Nos. 12.4 and 16.1, which distinguish between an “incident” and a plaintiff’s “injuries.”

Moreover, exclusion of a party’s witness for that party’s failure to identify the witness in discovery is appropriate only if the omission was willful or a violation of a court order compelling a response. (See Code Civ. Proc., §§ 2023.030, CCP 2030.290, subd. (c), 2030.300, subd. (e); see also Saxena v. Goffney (2008) 159 Cal. App. 4th 316, 333-335 [71 Cal. Rptr. 3d 469]; Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 273–275 [105 Cal. Rptr. 276].) Even if interrogatory No. 12.1 could be construed as a request for the identity of witnesses who would testify to post-accident physical disabilities and difficulties, there was no evidence that plaintiff’s failure to identify the witnesses was willful or that plaintiff contravened a court order to provide discovery.

Accordingly, it was error to impose an evidence sanction based on plaintiff’s failure to divulge the names of the three witnesses in response to interrogatory No. 12.1 or to defendant’s general request for supplemental responses to interrogatories.

HELPFUL HINT: Trial Departments are frequently removed from discovery battles and may not be familiar with the subtleties of the Discovery Act.  Nonetheless, this case and the Biles v. Exxon Mobil Corp (2004) 124 CA4th 1315 that I wrote about in “The Pitfalls of Bad Discovery Habits” are examples of trial courts’ misunderstanding of what a court needs to find before they can impose evidence sanctions. Keep both cases handy as they are important if you are ever opposing a motion in limine to exclude evidence that you didn’t produce during discovery.

businessman sitting at his desk and falling asleep

For years I have been blogging about bad discovery habits from Garbage Objections to unauthorized General Objections, and preached that attorneys must play by the rules. As you know if you have read my blogs, I am quite the supporter of the 1986 Discovery Act, and often express my opinions  on a party’s responsibility during the discovery process.  More importantly, I attempt to educate lawyers about the Discovery Act so they can be well prepared with their arguments when the court makes a wrong turn (yes, it does happen).

The case of Biles v. Exxon Mobil Corp. (2004) 124 CA4th 1315 is an example of the court’s misunderstanding of the Discovery Act and reacting erroneously to a garbage discovery response.  The facts are as follows:

Defendant Exxon served a special interrogatory asking plaintiff to identify “each person who has knowledge specifically of the work at [the Humble refinery] that you contend created your exposure to asbestos fibers.

Plaintiff responded:  “ After a reasonable and good faith inquiry, plaintiff currently has no further information responsive to this Interrogatory.  Plaintiff expressly reserves the right to amend or supplement this Response based on the outcome of such investigation.  Plaintiff’s investigation and discovery are continuing.”

Five months later, Exxon filed a motion for summary judgment.  Plaintiff’s opposition to the summary judgment included a declaration from a witness, which should have arguably defeated Exxon’s motion.  Exxon objected to the declaration of the witness on the ground that the witness had not been identified in plaintiff’s interrogatories responses.  The court sustained the objection and granted motion for summary judgement to Exxon.  The court rationalized its decision to strike the declaration stating:

Look, when you answer an interrogatory and you don’t give any names at all but say you are going to supplement it, the obligation is on you to supplement it as soon as you find out.”

The First District Court of Appeal reversed the trial court on three grounds: (1) there was no evidence that plaintiff’s initial response was willfully false at the time it was served, (2) there is no obligation to supplement without a court order [or having been served with a supplemental interrogatory] and (3) the appropriate sanction if there was any discovery abuse, absent unusual circumstances or a violation of court order, was monetary sanctions, not evidence sanctions.

It took a year for the Court of Appeal to right this wrong and probably thousands of dollars in attorney time that the attorney probably wrote off.  All because of the unnecessary language,  “Plaintiff expressly reserves the right to amend or supplement this Response based on the outcome of such investigation,” included in the discovery response, and due to plaintiff’s encounter with a judge who didn’t know the finer points of the Discovery Act (or ignored them).

A close-up of a Baseball or Softball Home Plate Umpire

Recently I received an e-mail from an attorney who followed my advice regarding General Objections.  It went like this:

“I read your article ‘Why you Need to Bring a Motion to Strike General Objections,’ and filed a ‘Motion to Strike Defendants’ Preliminary Statement and Unmeritorious Objections.’  The Preliminary Statement contained many of the issues you pointed out in your article, and each of defendants’ responses to interrogatories and document requests contained the same 28 lines of objections.  The court then separated the motions to compel from the motions to strike and refused to rule on the motion to strike stating “There is no such motion.” Is the court correct?”

The court is correct that a Motion to Strike pursuant to C.C.P. §435 and C.C.P. §437 is about the pleadings even though the request  “Move to Strike” is often used in discovery (i.e, portions of a declaration, objections in a deposition) even though it is not codified.  However, I have never seen a court refuse to deal with a discovery issue based on semantics of the notice.  In fact, according to Weil and Brown,  Civil Procedure Before Trial (TRG 2015) 9:2.3 citing Sole Energy Co. v. Petrominerals Corp. (2005) 128 CA4th, 187, 192-193 the label of the motion is not determinative.

Propounding parties are in a Catch-22 situation.  There is no provision allowing the General Objections or a Preliminary Statement in a discovery response so there is no remedy for it.  The following is my rationale for recommending the filing of such a motion with your motion to compel further responses.

  • The Code does not allow for general objections or preliminary statements.  A party must respond to the individual interrogatory or request and that includes any objection.  See my blog article “What is a General Objection?
  • Each written discovery device allows a party to bring a motion to compel further responses if an objection is “too general.” See C.C.P. §2030.300 and C.C.P. §2031.310.
  • C.C.P. §2023.010(e) says it is a misuse of the discovery process if a party makes an unmeritorious objection to discovery.
  • C.C.P. §2023.010(f) says it is a misuse of the discovery process for making an evasive response to discovery.
  • C.C.P. §2023.030 gives the court power to issue monetary, issue and evidence sanctions on a party for misuse of the discovery process.

Procedurally speaking the proper motion to bring is a Motion to Compel Further Responses pursuant to C.C.P. §2030.300 and C.C.P. §2031.310 with a Request for Sanctions for violation of C.C.P. §2023.010(e) and  C.C.P. §2023.010(f).In that motion, a party should:

  • Point out to the court that the General Objections and Preliminary Statements are not proper and ask the court to overrule the objections or strike them from the response as improper.
  • Request the court require a further response with a ruling that responding party is forbidden to use General Objections or Preliminary Statements in any of their responses.
  • Finally, stress to the court that you are entitled to sanctions.

To answer the attorney’s question “Is the Court correct?”  In my opinion, No!  The court has the “inherent authority to manage and control its docket” and should have ruled on the merits regarding defendant’s improper General Objections and Preliminary Statement.

There was only one change to the Discovery Codes but it was significant.  The legislature added language to Code of Civil Procedure Section 2025.220 with added requirements when you serve a deposition notice.  The deposition Notice must now contain:

(8)(A) A statement disclosing the existence of a contract, if any is known to the noticing party, between the noticing party or a third party who is financing all or part of the action and either of the following for any service beyond the noticed deposition:

(i)  The deposition officer.

(ii)  The entity providing the services of the deposition officer.

   (B) A statement disclosing that the party noticing the deposition, or a third party financing all or part of the action, directed his or her attorney to use a particular officer or entity to provide services for the deposition, if applicable.

Continue Reading 2016 New Years Resolution–New Requirements for Deposition Notices

iStock_000012781059_SmallUnlike Federal Rule Civil Procedure 26(e)(1) – (2), California law does not impose a continuing duty on a party to supplement their interrogatory or document responses.  Biles v. Exxon Mobil Corp. (2004) 124 CA 4th 1315.  Instead, the California Discovery Act has two statutes, C.C.P. §2030.070 and C.C.P. § 2031.050, that allow the propounding party to ask for updated information “bearing on answers already made” and “later acquired or discovered documents, tangible things, land or other property.”

Continue Reading Are You Following Up on Your Opponent’s Discovery Responses?

legal gavel and law books, on white

 

Can a trial court order a party to disclose potentially privileged information because the party’s privilege log did not provide sufficient information for the court to evaluate whether the privilege applies?  According to the Fourth District Court of Appeal, Division Three in Catalina Island Yacht Club v. The Superior Court of Orange County filed December 4, 2015 the answer is NO!

Continue Reading No Waiver of Privileges for Inadequate Privilege Log

Young handsome businessman sitting in chair with his legs on pile of books

Several times per month I receive questions from attorneys regarding a discovery dilemma.  Mostly the questions offer a novel twist on basic discovery.  However, this latest query was quirkier than most and raised some interesting issues and misconceptions, so I thought I would share it with you.   It went like this:

I served written discovery on a cross-defendant in a case, we are one of the defendants.  Cross-defendant (represented by, the plaintiff’s counsel) has appeared in this case by way of demurrer.  Cross-Defendant has refused to answer for the following reasons, (1) my clients are not parties to the cross-complaint so therefore we cannot propound discovery; (2) the court sustained the demurrer with leave to amend and the amended cross-complaint will be filed shortly by the cross-complainant; and (3) the cross-defendant lives in Europe and I need to go through the Hague Convention.  I don’t think any of these are legitimate reasons for not responding to discovery.

Continue Reading DISCOVERY GAMES AND MISCONCEPTIONS – Are These Objections Legitimate?

young man and young woman with camera

 

For years, parties have videotaped both the deponent as well as the lawyer asking the questions during a deposition.  The purpose is to provide a split screen video to the jury at trial which would simultaneously show the questioner and the deponent in real time.  But is it permissible?  As demonstrated below, the answer is “No”, unless the parties stipulate or the court orders it upon the showing of good cause. Continue Reading Can I Videotape Opposing Counsel During a Deposition?

businessman is carefully reading contract

Here is another great article from Miles B. Cooper.

Subtitle: Inadvertent disclosure of privileged documents during discovery

The lawyer read in disbelief. The memo, on defendant’s letterhead, crucified the defense. It was part of defendant’s production responses (and for reasons that will be talked about later, the fact that it was not electronically stored information is significant). The document had also been floating around for years. The defendant gave it to the police during the initial investigation. The police gave it back to the defense team when the defense asked for a copy of the police file. The defense produced it to the plaintiff. And, because it was responsive to a discovery category, the plaintiff produced it back to the defense. Continue Reading Read it and weep–Inadvertent Disclosure of Privileged Documents