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.

New Attorney? Don’t Get Intimidated by Opposing Counsel

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

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

The game within the game

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

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

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

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

Stick to the rules

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

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

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

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

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

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

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

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

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?

So with the above being said, here are some scenarios and some helpful hints for the party on the receiving end of the "Declaration of Necessity."

At the beginning of a case, opposing counsel serves, form interrogatories with all the appropriate boxes including 17.1 checked, 35 special interrogatories, 35 requests for admissions and 25 requests for production of documents.

Though the above discovery is permitted by code, the total number of interrogatories (remember the subparts in the form interrogatories) and requests are going to be in the hundreds. In responding to this discovery, you are going to spend tens of hours and cost your client thousands of dollars and this is just the initial volley of discovery.

Do not ignore the abusive tactic from opposing counsel. It is important that you set the tone of the case immediately. Send a meet and confer letter to opposing counsel asking him to withdraw the 35 special interrogatories and/or requests for admissions. Advise counsel that:

1. The total of form interrogatories (add subparts including the 17.1 series for each request for admission) the special interrogatories, requests for admissions and the requests for documents are in the hundreds and it will take you tens of hours to respond;
2. Specially prepared interrogatories and requests for admissions are more appropriate for later stages of discovery;
3. Deposition of your client is a more efficient use of time and money at this stage of the litigation;
4. The specially prepared interrogatories and requests for admissions coupled with the other discovery requests are harassing and are intended to waste time and money;
5. he facts and issues in the case are not complex; and
6. If the requests for admissions and specially prepared interrogatories are not withdrawn, you will file a protective order or you will file a protective order when any additional specially prepared interrogatories or requests for admissions are served (if the facts and issues are not complex).

Be prepared to file the protective order asking the court for limiting the discovery and/or more time to respond. It is important that you let the court know that opposing counsel is using discovery as a weapon. If you anticipate future discovery problems with opposing counsel, you may want to request that the court appoint a discovery referee.

After settlement discussions have failed, you are soon served with a slew of discovery including a second set of specially prepared interrogatories and a second set of requests for admissions; both exceed the 35 total limits allowed by the Code of Civil Procedure and both with a "Declaration of Necessity." It is your strong belief that the purpose of the newly propounded discovery is to force you back to the negotiating table.

This is a common tactic and possibly a justifiable one if trial is approaching. However, instead of responding, take a closer look if the propounding party can justify the "Declaration of Necessity." Is the case complex? Would a deposition or subpoena of a third party be more time efficient or cost effective? And, why should your client pay the additional litigation cost because the opposition failed to take into account the limitations in C.C.P. §§ 2030.030(a)(1) and 2033.030(a)(1) in developing their discovery plan?

Send a meet and confer letter to opposing counsel objecting to all specially prepared interrogatories and requests for admissions that exceed 35 because:

1. The facts and issues of the case are not complex;
2. All the other discovery that already has been done;
3. Other discovery devices (i.e., depositions, third party subpoenas, expert witnesses’ depositions) would be more efficient and/or cost effective; and/or
4. The Code of Civil Procedure limits discovery to 35 specially prepared interrogatories and requests for admissions and the fact that opposing counsel has used them all is not your problem. The opposing party needs to take responsibility for their discovery plan.

If you go to court on a motion for protective order, be careful in accusing the opposition of abusing discovery because you wouldn’t settle. The accusation may hurt you more than help you.  Let the court come to that conclusion on its own.

Two years into a complex case you are served with Specially Prepared Interrogatories Set #5-- Interrogatories 152-185, Requests for Admissions Set #3–Requests #57-91, Form Interrogatories Set #4 with 17.1 checked and Requests for Production of Documents, Set #5–Requests 180-222.

This is a frequent problem in complex cases that last years. The propounding party has either forgotten what they have already served or new attorneys are working on the file and haven’t taken the time to review previous discovery that was propounded. Nonetheless, the only way to handle this is for you to research what discovery you have responded to and how the present propounded discovery is duplicative. Once you have that information, send a meet and confer letter stating:

1. Which interrogatory, request for admission and/or request for documents are duplicative or a subset of which interrogatory, request for admission and/or request for documents that have already been propounded;
2. Suggest what other discovery devices would be more efficient or cost effective (i.e., depositions, expert testimony, site inspections, subpoenas of third party records . . .); and/or
3. Advise the propounding party that if they are not withdrawn you will seek a protective order and/or request a discovery referee to oversee the remaining discovery in the matter in order to get it to trial.

Even though you can object stating that the discovery is duplicative, this is the type of case that you want to be proactive and go to court so you won't spiral into Discovery Hell.

REMEMBER: If a party does not withdraw their excessive specially prepared interrogatories or requests for admissions, you must file a protective order as an objection is not sufficient if a declaration of necessity is attached. See C.C.P. §§ 2030.040(b) and 2033.040(b).

The disdain and hated that can spew from even the most professional of lawyers can be astonishing. At times you wonder where it comes from.

Bombarding one side with hundreds of interrogatories, request for admissions and requests for documents right out of the gate with no rhyme or reason of a discovery plan other than to use Discovery as a weapon.

Opposing counsel being abusive to your client by asking improper, inappropriate and accusatory questions in a mean menacing tone. Thus, making you look ineffective.

Opposing counsel's failure to respond to discovery other than providing garbage objections though the law is quite clear that the discovery requests are appropriate.

The non-offending attorney eventually goes to court and requests a discovery referee and I get appointed. In reviewing the papers, I can usually put the cause of the hostility in one of the following categories:

(1)     The offending attorney has a difficult client and the client expects his hired gun to get his pound of flesh from the other side;

(2)     The offending attorney got caught unprepared and is now using abusive tactics to hide their mistakes;

(3)     It is the strategy of the offending attorney to get you into the gutter because they know how to win there; or, unfortunately,

(4)     All of the above.

Looking at the history of the discovery battle before me, I see the offending attorney being difficult, interjecting improper objections, raising the tone of the conflict and playing a deflective game. Despite the earnest attempts of the non-offending attorney not to engage, he or she eventually ends up fighting the offending lawyer in the gutter throwing insults and accusations in a high volume attempt to stop the madness. By the time the matter reaches the court, the conflict has reached a fevered pitch.  The court ends up throwing up its hands saying “Pox on both of your houses, I am sending you to a Discovery Referee” because all the court see is two very unprofessional attorneys and YOU ARE ONE OF THEM!

This conflict costs your client money in attorney fees, it extends the time of the case and it makes it difficult to settle the case without paying a premium. So what do you do?

Your first priority is to protect your client. Your second priority is to protect your reputation. Neither can be accomplished if you let the discovery conflict spiral out of control. So the answer is to nip the conflict in the bud and be PROACTIVE!

(1) Every communication with the offending attorney needs to be in writing. Don’t go “tit for tat” in the e-mails. WAIT before you hit that send button! Better yet, write a letter on your firm’s stationary and send it as an attachment. That will give you time to cool off.  Catalog every unprofessional, abusive tactic in a factual tone. Hint: Write every communication as if the Judge is going to read it.

(2) Don’t take it on the chin. If the objections are garbage and you are entitled to a response, then file the motion. Start setting a record for issue, evidence and terminating sanctions. Keep filing those motions. It only hurts your client if you don’t obtain the discovery you are entitled to.

(3) If the abuse is happening during a deposition, suspend the deposition and go to court and ask for a discovery referee to sit in on the depositions. In the alternative ask that the depositions be held at the courthouse with the Judge on standby for rulings.

(4) Ask the court for an early settlement conference or suggest mediation to the offending counsel. This may sound counter intuitive, but the conflict may be a symptom of the need to resolve the case.

(5) Ask the court for a discovery referee for all purposes with the request that the offending party be responsible for the referee’s fees due to their abusive behavior.

The Moral of the Story: You are an advocate–Go Advocate!

Special Interrogatory No. 1 requested a description of "all economic damages you have sustained . . . " Plaintiffs objected on the grounds of "vague and ambiguous" because defendant hadn’t specifically referred to Civil Code Section 1431.2(b)(1), which defines "economic damages."

Special Interrogatory No. 2 asked "Please state the amount of such damages identified in Interrogatory No. 1."  Plaintiffs objected on the grounds that the special interrogatory was not complete in itself and because he has 30 days to answer No. 1 so he should have another 30 days more to answer Interrogatory No. 2.             

Nine months after the Special Interrogatories were propounded, the Discovery Referee, found that the plaintiffs had "deliberately misconstrued the question" as to economic damages and determined that "the objections and each of them to be unreasonable, evasive, lacking in legal merit and without justification". Clement at 1284  The Referee recommended that the motion to compel further responses be granted and that plaintiffs were to reimburse defendant $4,950.00 for legal fees, $40 for filing the motions to compel and $1,642.50 for defendants portion of the Discovery Referee’s fees for a total sanction of $6,632.50. The trial court agreed with the recommendation. 

The First District Court of Appeal had no sympathy for plaintiffs appeal stating in its opening discussion:         

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. 1438.)

This case illustrates once again the truth of Townsend's observations, as well as highlighting the lengths to which some counsel and clients will go to avoid providing discovery(in this case by responding to straightforward interrogatories with nit-picking and meritless objections), resulting in delaying proceedings, impeding the self-executing operation of discovery, and wasting the time of the court, the discovery referee, the opposing party, and his counsel.  [Emphasis added]

The First District Court of Appeal affirmed the Discovery Referee’s order awarding sanctions and gave the following admonishment:

...we feel compelled to observe that resort to the courts easily could have been avoided here had both parties actually taken to heart Justice Stone’s admonitions in Townsend ‘the statute requires that there be a serious effort at negotiation and informal resolution (Townsend at 1438) Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that [a]rgument is not the same as informal resolution’ (id at p. 14370; and that 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." (Townsend at 1439) [Emphasis added]

In the year since Clement v. Alegre was published it has been cited in two unpublished Appellate Court decisions, six Code of Civil Procedure annotations, seven different treatises and three appellate briefs.  This is one case you should keep in your arsenal when you are requesting sanctions.       

I thank Mike Liberty for forwarding me this case. Please forward me any other discovery cases or issues that you would like to be discussed.

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. 

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.

Claims of privileges must be protected by the attorney, but remember that they are generally narrowly construed.  The work product doctrine and the right of privacy are another story.  These objections are not privileges and can be overruled--except for absolute work product--if there is a showing that the discovery is necessary for a fair resolution of the lawsuit.  See Moskowitz v. Superior Court (1982) 137 C.A. 3d 313 (pdf), 316.  Also, the California Supreme Court is reviewing the scope of the work product doctrine in the case of  Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf).   Consider negotiating a protective order  with opposing counsel as a court most likely would grant one in the cases involving privilege,  work product doctrine or the right of privacy.

If all else fails, prepare your opposition.  Follow the same advice given in the previous blog “What Your Discovery Motion Should Look Like.”  However, one additional piece of advice–though the code does not require it, you should prepare your own Separate Statement of Items in Dispute (pdf). This document is GOLDEN because this will become the first document the court reviews in deciding the motion as it will have all the information the court needs in this one document.  Your Separate Statement of Items in Dispute (pdf) headings should look like this:

Form Interrogatory #12.1:     State the request or interrogatory verbatim.

Response:   State your response verbatim.

Supplemental Response (provide dates):     State any supplemental response verbatim.

Why There Should Be a Further Response:     State moving papers’ Separate Statement of Items in Dispute (pdf) arguments verbatim.

Why There Should Not be a Further Response:   Do not use conclusory statements. You need to be very specific in the law and the applicability of the law to your case if you are not responding to the discovery on claims of privilege, work product and/or privacy.   If you are arguing that your objections are not garbage objections, and then explain in detail why.

The final piece is your declaration.  Again, the same advice applies as what was given in the previous blog “What Your Discovery Motion Should Look Like.”    However, if the moving papers are requesting sanctions then you must address this full on.  Describe how you “acted with substantial justification” in objecting to the discovery and opposing the motion.  Detail your entire meet and confer efforts (i.e., explained the problems with the interrogatory/request, offered to respond to the discovery if everyone could agree to a protective order, etc.)  Don’t forget to request sanctions yourself for all the time you have spent in trying to come to a resolution and in opposing the motion.

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.  

When I look back on this case,  I realize that the moment defense counsel used the word "Bitch" it became the turning point of the case. These two well-respected attorneys’ hostility toward one another drove the case. There were no more professional courtesies and the parties took extreme positions in their settlement negotiations. The case eventually went through a lengthy bench trial and appeal process that lasted years before plaintiff recovered an eight-figure judgement.

The moral of the story here is "you gotta know when to hold’em and know when to fold’em."  In other words, is your discovery battle worth it in the long run?  In this case, a simple, sincere apology could have put the case back on track, possibly leading to settlement and I may never have been appointed to wear the black and white striped shirt.  

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."

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.