“ 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.

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.

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.

 

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?

A motion to compel answers to requests for admissions in the absence of a response may seem to be a wasted motion when you have the ability to bring a motion to have matters deemed admitted.   Yet, there are benefits in choosing this motion.  Bringing a motion to have matters deemed admitted throws down the gauntlet in the discovery process.  It is a “gotcha” motion. It also has legal malpractice overtones to it because someone screwed up by not getting the answers in on time and the ramifications for their client are harsh.  By bringing a Motion to Compel Answers to Requests for Admissions the propounding party gets the answers they want, keeps peace during the litigation and prevents the discovery process from escalating to an all out war.   However, this is a more lengthy process to get “substantially compliant” answers or evidence sanctions, so I don’t recommend it.   

Motion for Admissions be Deemed Admitted

This motion is quick and dirty.  If you have not received responses to your Requests for Admissions, then you can file the motion.  You don’t have to meet and confer.  There are no time limitations in bringing the motion.  And, most importantly, on the day of the hearing you either have (1) your requests for Admissions Deemed Admitted or (2) “substantially compliant” responses and sanctions in your pocket.   Unlike the other discovery statutes dealing with the failure to respond, C.C.P. §2030.280 (pdf)   has teeth!  It states:       

If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210 (pdf), 2033.220 (pdf), and 2033.230 (pdf).
(2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

In other words, the responding party has to give you the “substantially compliant” responses before the hearing as well as a declaration that the attorney and the attorney needs to fall on the sword and admit that it was the result of his “mistake, inadvertence or excusable neglect.” to defeat the motion.

It also states:

(b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010 (pdf)).

(c) The court shall make [an] order [that the genuineness of any documents and the trust of any matters specified in the requests be deemed admitted], unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is MANDATORY that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. [emphasis added]

In essence, the statute is saying that “substantially compliant” responses served prior to the hearing defeats a motion to have matters deemed admitted, and that it is MANDATORY that a monetary sanction be imposed against the responding party.  This is the only place in the Discovery Act that imposes MANDATORY sanctions.  However, no sanctions can be imposed for delay in responding to Requests for Admissions if answers were provided prior to the filing of the motion. 

Remember:  A “deemed admitted” order establishes by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained there.” Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1375.1 citing Wilcox v. Birtwhistle (1999) 21 C4th 973 (pdf), 979. 

Motion to Compel Further Responses

The procedural requirements for a Motion to Compel Further Responses is the same as for the other discovery devices.  However, there is one additional thing you need to be aware of – YOU NEED TO FILE THIS MOTION IF YOU WANT COST OF PROOF SANCTIONS!  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1378; CEB, California Civil Discovery Practice (4th ed. 2010) §9:87 and Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618 (pdf) , 633.    You need to bring this motion if any of the following are in the responses:

• Garbage objections
• Evasive responses
• Partial or qualified admissions
• Responding party states that they lack sufficient information to admit or deny
• Admitting part and failing to admit or deny the remainder of the request
• Denying part failing to admit or deny the remainder of the request

Another aspect to this motion is that you can’t compel a party to admit even if they made the same admission in a deposition or in interrogatories.  In the case of Hoguin v. Sup. Ct. (1972) 22 CA 3d 812 (pdf)  at page 815 the Second District Court of Appeal stated “We do not see, however, how any court can force a litigant to admit any particular fact if he is willing to risk a perjury prosecution or financial sanctions”

Good luck on your motions!!

Next: Responding to the Motions

Attorneys easily spew out the objection “the information you are seeking is not relevant to the subject matter of the litigation” as easily as they say “Good morning.”  If you are the propounding party your reaction is probably to be to yell out “It is too relevant!” because it doesn’t even appear that the responding party actually thought it through before spewing out the objection.   But what exactly is relevancy?  It seems to be a nebulous term that invokes images of catching clouds with your hands or like Supreme Court Justice Potter Stewart’s definition of pornography “I know it when I see it”?

Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.             

However, this definition isn’t exactly helpful either.  Unfortunately, there is no bright line test to determine what is relevant.  Instead you must rely on numerous cases that bounce you from flipper to flipper like a pinball to get a sense as to what relevancy means for 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 2010) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf) at 391.  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 2010) ¶ 8:71 citing Colonial Life & Accident Insurance Co. v. Superior Court (1982) 31 C3d 785,790 

“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 2010) ¶8:66 citing Bridgestone-Firestone Inc. v. Sup. Ct. (1992) 7 CA4th 1384 (pdf),1392  In fact, admissibility at trial is not the test.  See Davies v. Superior Court (1984) 36 C3d 291 (pdf),301.  You may discover heresay (Smith v. Superior Court (1961) 189 CA2d 6 (pdf),11 or inadmissible opinions and conclusions (Greyhound Corp. v. Superior Court, Supra at 391).   You may also discover irrelevant matters so long as their revelation may lead to the discovery of admissible evidence. Dodge, Warren & Peters Insurance Services, Inc. v. Riley (2003) 105 CA4th 1414 (pdf).  Remember that you are not limited to the pleadings as the pleadings can always be amended when you discover new facts or causes of action. Anti-Defamation League of B’nai B’rith v. Superior Court (1998) 67 CA4th 1072 (pdf).  The phrase “subject matter involved in the pending action has been defined to include not only the acts that constitute the cause of action, but also circumstances and physical facts which the action arises, including the property, contract, or other things in dispute.   See CEB California Civil Discovery Practice (2010) 4^th Ed 1:37 citing Darbee v. Superior Court (1962) 208 CA 2d 680 (pdf),688.  However, Weil and Brown said it best: “the scope of permissible discovery is one of reason, logic and common sense.”See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:67 

Hint: If you can articulate why you think this information might lead to the discovery of admissible evidence then you should be able to discover it. 

With the courts’ having budgetary problems and staff shortages, it is in your best interests to make it real clear to the court (1) what has happened; (2) what you want the court to do; and (3)  why you are entitled to the discovery and sanctions in a succinct fashion.  

Yet, you still may be unsure as to what the meat and potatoes of the motion should look like.   After two years in the law and motion department in Alameda County Superior Court and sixteen years as a private Discovery Referee, I can tell you what I like and you can take whatever pearls and nuggets you find from there.                                            

Meet and Confer Letter:  

1. This is a very important document.  It sets the tone of your dispute with opposing counsel so don’t be hostile.  Remember this letter is going to be an exhibit to your motion and could make or break your request for sanctions if the court finds that you have not been professional.
2. List every interrogatory, request and/or deposition question separately and explain why the objections are garbage and why you are entitled to discover the information. You can later take your arguments in this letter and drop it into your Separate Statement of Items in Dispute (pdf)saving you much needed time. 

 Notice:

1. The Notice is not wasted space.  The notice is to tell the court and opposing party not only the name, date, time and location of the motion, but the “nature of the order sought” as well.  So make sure you state the exact remedy you’re seeking in detail.  Also, make sure to list the nature and tile of all documents to be attached.
2.  If you are seeking sanctions it must be in the Notice.
3. List the nature and title of all documents that will be attached (i.e., Memorandum of Points and authorities, declarations, etc.)  
4. Make sure you comply with CRC 3.1110 (pdf).

 Points and Authorities

1. Give a good explanation of the facts of the case.  The relevant scope of your discovery depends on these facts.  Don’t assume the court remembers your case as they handle anywhere from 75 to 100 cases a week.
2. Provide a procedural history of the discovery motion in a time line laid out like the one below:  
   • 6/1/10 Served interrogatories via mail (Exhibit A)
   • 6/28/10 Counsel asked for an extension via telephone call (Declaration)
   • 7/30/10 Received responses full of objections (Exhibit B)
   • 8/5/10 Meet and confer letter sent (Exhibit C)
   • 8/25/10 Response to meet and confer letter (Exhibit D)
3. State your arguments why you are entitled to your discovery.  Categorize your arguments (i.e., “Special Interrogatories #1, 7, 15 are asking for information regarding . . .”)  Apply the facts and the law accurately.  Point out the obligation to respond in good faith.  Point out the garbage objections.  Point out that the failure to provide proper responses has delayed your case. If the motion requires a Separate Statement of Items in Dispute (pdf)as required by CRC 3.1345 (pdf), then make specific arguments to the specific interrogatories, requests or deposition questions in that document.  
4. State your request for sanctions in detail.
5. Detail the exact relief you are requesting: (i.e., “Plaintiff to serve verified responses to interrogatories 1, 2, 3, 4 by 11/1/2010 and attorneys’ fees in the amount of $2200 and costs in the amount of $40.”) 
6. Make sure you comply with CRC 3.1113 (pdf). 

 Separate Statement of Items in Dispute

1. This is the most important document of your motion and the first document that a court will rely on.  Do your real argument here.  Be detailed in the law as to why the objections are garbage.  Apply the facts of your case to show why the information you are seeking is discoverable. 
2. Make sure you comply with CRC 3.1345 (pdf)

Declaration:

1. Authenticate all your exhibits. 
2. Describe your meet and confer with opposing counsel.
3. If there is a request for sanctions, state your hourly rate.  Outline in detail the time spent on the motion and any future time you anticipate spending.  Calculate the attorneys’ fees and add the costs.

 Proposed Order:

1. Have the order state which interrogatory, request and/or deposition question have been granted and the date line as to when that verified response is to be served or the deposition needs to take place by  (i.e., “Verified answers to Special Interrogatories, Set #1, #1, 2, 5, 7, 13 are to be served no later than ____.”).  This allows the court to strike the numbered interrogatory, request and/or deposition question that has been denied and to put in their own compliance date. 
2. Do the same thing for sanctions.  List the award of attorneys’ fees and the award for costs.  State who the award is against by name. 

 Other Helpful Hints:

1. Do not go over the 15 page limit without obtaining a court order.  CRC 3.1113 (pdf)(e)
2. Do not use smaller fonts. CRC 2.104 (pdf) and CRC 2.105 (pdf)
3. Though CRC 2.08 (pdf) allows for 1.5 line spacing, double space is preferred.
4. Understand the procedural rules for Judicial Notice and their effect on your motion.  See   Ev. C §451 (pdf), Ev. C §452 (pdf), CRC 3.1113 (pdf)(l). 
5. You must do a table of contents and table of authorities if the motion is 10 pages or over. CRC 3.1113 (pdf)(f)   However, many judges appreciate a table of contents in any motion.
6. If you are bringing a motion to compel answers to special interrogatories or requests for admissions that are over the initial 35 allowed, then make sure and attach your “Declaration of Necessity.” 
7. If a department wants courtesy copies, make sure you get a full set to the department in a timely fashion.
8. Most importantly PROTECT YOUR REPUTATION.  Be accurate in your citation of the facts as well as the law.  Do not overreach.  Do not try and be clever.  Do not show disrespect to opposing counsel or their client.  The research staff as well as the judges will remember you.     

Next:   GAME ON--Opposing the Motion to Compel.               

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. 

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.  

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:

“Ambiguous”      Valid objection only if the question is totally unintelligible. A party has a duty to answer if “the nature of the information sought is apparent.” Deyo v. Kilbourne (1978) 84 CA 3d 771(pdf), 783. Rather than sustaining the objection, the judge may ask the propounding to rephrase the question or request. See Cembrook v. Superior Court (1961) 56 C2d 423 (pdf), 430   Hint: instead of objecting state what you think the interrogatory is asking then answer.

“Hearsay”     Discoverable as long as it may lead to admissible evidence.  C.C.P. §2017.010 (pdf),  Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf), 391  Hint:  Don't confuse rules of evidence with rules for discovery.  Discovery rules are more liberal.

“Irrelevant”     The interrogatory must be relevant to the subject matter of the litigation. Deaile v. General Tel. Co. (1974) 40 CA3d 841 (pdf), 850.  Hint: fishing trips are permissible Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf), 383-385, just be prepared to state what you are fishing for.

“Overbroad”     Valid only if the question calls for an undue burden such as “shotgun” interrogatories” as they are too general (i.e., “Please state the identity of each and every person who has knowledge of the relevant facts of the litigation.”)  See CEB, California Civil Discovery Practice (4th ed. 2009) §7.85

“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. Superior Court (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.

"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 (pdf), 723-724] or interview independent witnesses [Holguin v. Sup Ct. (1972) 22 CA3d 812 (pdf), 821] in order to answer the questions.

Referencing Documents:    The “see complaint” type  answer is not proper.  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 2009) §8:1049 citing Deyo v. Kilbourne (1978) 84 CA 3d 771(pdf). The exception to this is C.C.P. §2030.230 (pdf) 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.

Though the statutory authorities used above are for interrogatories, there is corresponding statutory authority for requests for production of documents and requests for admissions.  The case law can be applied for other discovery devices.

"Vague, ambiguous, overbroad, burdensome, oppressive, not likely to lead to admissible evidence and the information is equally accessible to the defendant.  Plaintiff further objects on the grounds of attorney client privilege and the work product doctrine.  See Nacht & Lewis Architect, Inc. v. Superior Court (1996) 47 CA4th 214 (pdf). 

Does this sound all too familiar?  The frustration level is high with attorneys as it will take at a minimum 121 days to get basic information if you have to file a motion to compel further responses.  Meanwhile the court is scheduling a trial date and your discovery train hasn't even left the station. 

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 2009) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961).  Unfortunately, now it appears the call of the wild is “Let the games begin” as the dreaded process unfolds. 

(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.

The code requires that a party must make a reasonable and good faith effort to obtain the information. Regency Health Services, Inc. v. Superior Court (1998) 64 CA4th1496 (pdf)“A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA3d 771,782. This includes a party’s lawyer Smith v. Sup. Ct (Alfred) (1961) 189 CA 2d 6, agents or employees Gordon v. Sup. Ct. (U.Z.MFG.Co) (1984) 161 CA 3d 15,167-168, family members Jones v. Superior Court (Benny) (1981) 119 CA 3d 534, 552 and experts who have been retained by a party and designated as a trial witness.  Sigerseth v. Superior Court(1972) 23 CA 3d 427,433.   See Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2009) ¶ 8:1051-1060  This means that you can't just pawn off the responses to your client or spend an hour and dictate off the top of your head and then answer "inability to respond."  See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390   The statute and the case law make it very clear that a party and the attorney must be proactive in obtaining the information to respond to the interrogatories.  

Discovery motions are by no means the Courts' favorite motions to hear and, unfortunately, they have seen the above interrogatory response too many times.  So don't be surprised if you get sanctioned for providing false or evasive answers.  See CCP §2030.300 

 Next:  Are Your Responses Garbage?