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

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?

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?

After a long stretch of depositions, coupled with intense mediation sessions you finally have a day in the office to clean off your desk and catch up on your other cases.  Going through the stacks of mail, you unfortunately find the Discovery Motion with Teeth–Motion to Have Admissions be Deemed Admitted. Panic sets in. Now what do you do?

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Over the years friends and colleagues have called me up asking for a quick answer on a discovery question that they have. The phone call usually went like this “I want to get plaintiff’s phone records, how do I do that?” or “I forgot to disclose experts, am I too late?” or “They want to send my client to a psychiatrist. Can I object?” I know the answers to these questions which are “Yes,” “No” and “Yes.” However, to get the statutory authority, I rely on the charts I have prepared and published over the last 18 years. The California Civil Discovery--Charts for the Everyday Litigator " (pdf)  was recently updated and now available to you for download. 

Hope it helps!!

You have been served with the Motion to Compel Further Responses with a Separate Statement of Items in Dispute (pdf) the size of your fist and your response is due in two weeks.  Now what do you do? First, take a deep breath.  This is the time you decide when to “hold them and when to fold them” because how you respond may end up setting the tone between you and opposing counsel for the entire case.   

Look at the Separate Statement of Items in Dispute (pdf) and determine whether or not you have any garbage objections.  If you do, offer to respond to those interrogatories, requests for admissions and/or requests for productions of documents by a date no later than when your opposition is due.

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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. 

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Not only are most objections garbage, we tend to recycle our garbage objections from one case to the next. Sometimes, we pick up other attorneys’ garbage objections and contribute to more litter. This is done over and over again without even thinking what it is doing to the environment of the litigation.

Garbage objections fuel the ire of opposing counsel. The “meet and confer” letter that is soon to follow is usually full of hostility and threats. Any amicable relationship you had hoped for with opposing counsel is on the cusp of being destroyed. More important, you are now costing your client more money in attorneys’ fees and possibly in settlement.  So before you throw out the trash, look at these common objections and why they will be overruled:

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