Compel Further Responses

The title of this blog is a quote from the most basic tenant of the 2016 Discovery Act found in Code of Civil Procedure Section 2017.010 titled Matters Subject to Discovery which reads:

“Unless otherwise limited by order of the court in accordance with this title, 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. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” [Emphasis added]

The courts and the treatises liberally construe this statute and a party’s right to obtain the identity and location of witnesses.

Weil and Brown’s California Practice Guide: Civil Procedure Before Trial (TRG 2017) at 8:82 and 8:83 reads as follows:

[8:82] “Any discoverable matter”: Section 2017.010 et seq. Includes witnesses with “knowledge of any discoverable matter” . . . i.e., fact or opinion [Gonzales v. Sup. Ct. (City of San Fernando), supra, 33 CA4th at 1546, 39 CR2d at 901 (citing text)]

[8:83] Credibility: information regarding the credibility of witnesses is also discoverable: e.g., grounds for impeachment evidence of bias, etc. The credibility of their statements or testimony is itself “relevant to the subject matter.”

California Civil Discovery Practice Fourth Edition (2017) states:

The identity and location of persons who are not experts but who may have Knowledge of any discoverable matter is relevant to the subject matter of the litigation and is discoverable.  CCP §2017.010; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 C4th 360, 374 

“Our discovery recognizes that ‘the identity and location of persons having [discoverable] knowledge’ are proper subjects of civil discovery”: contact information about identity of class members generally discoverable.

Such persons may be actual witnesses to an event in dispute, or they may have knowledge that is based on heresay See Smith v. Superior Court (1961) 189 CA2d 6, 12; City & County of San Francisco v. Superior Court (1958) 161 CA2d 653, 656

In some cases, the identity of persons who have no information on the specific facts of a case may still be relevant to a claim regarding the opposing party’s regular business practices . . . Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 C3d 785.

In the case of Puerto v. Superior Court (2008) 158 CA4th 1242, the Second District Court of Appeal dealt with the issue of right of privacy for third parties stating:

The fact that we generally consider residential telephone and address information private does not mean that the individuals would not want it disclosed under these circumstances.  ‘While it is unlikely that the employees anticipated broad dissemination of their contact information when they gave it . . . they may reasonably be supposed to want their information disclosed to counsel whose communications in the course of investigating the claims asserted in this lawsuit may alert them to similar claims they may be able to assert. . .

Here, just as in Pioneer, the requested information, while personal, is not particularly sensitive, as it is merely contact information, not medical or financial details, political affiliations, sexual relationships, or personnel information (See, e.g., Pioneer supra, 40 Cal.4th at 372-373; Hooser v. Superior Court (2000) 84 Cal. App. 4th 997, 1004 [101 Cal. Rptr. 2d 341].) This is basic civil discover . . . Nothing could be more ordinary in discovery than finding out the location of identified witnesses so that they may be contacted and additional investigation performed.  (Planned Parenthood, supra, 83 Cal App. t p. 359 [home addresses and telephone numbers are ‘routinely produced during discovery”].)  As the Supreme Court pointed out in Pioneer, the information sought by petitioners here–the location of witnesses –is generally discoverable, and it is neither unduly personal nor overly intrusive. (Pioneer, at p. 373.)

Indeed, it is only under unusual circumstances that the courts restrict discovery of nonparty witnesses’ residential contract information.

Discovery may be prohibited where the information violates the right to privacy and is not necessary to the prosecution of the matter.  [Emphasis added]

RULE OF THE DAY:      You have the right to discover the identity and location of witnesses barring unusual circumstances and the information not being necessary to prosecute your case.

 

Hand of referee with red card and whistle in the soccer stadium.

Recently I saw the following document response and without even looking at the document request I knew that the response was bad and a motion to compel further responses was going to need to be filed:

Objection, as some or all of these documents are equally or more available to Plaintiffs. Without waiving, responding party states that all responsive, unprivileged, known, and reasonably available documents will be produced by Defendant, if they have not already been produced to Plaintiffs.

First, unless the request is asking the responding part to obtain a public document or a statement from a third party, the objection on the grounds of “Equal Access” is improper. See Weil and Brown California Practice Guide: Civil Procedure Before Trial (TRG 2016) 8:1062-64 citing Bunnel v. Superior Court (1967) 254 CA2d 720, 723-724 and Holguin v. Superior Court (1972) 22 CA3d 812, 821.

Second, by definition, a document request seeks only documents that are in the responding party’s possession, custody or control. (See C.C.P. §2031.010(b), (party may demand any document “in the possession, custody, or control of the party on whom the demand is made”).)  Even if the propounding party has copies of the documents, the propounding party is entitled to inspect documents that are in responding party’s possession, custody or control.

Third, the response that “unprivileged” documents will be produced implies that privileged documents will not be produced and the court would deem the response to be an objection. Thus, the responding party must amend its responses by identifying each privileged document that is not being produced, as detailed in Code of Civil Procedure §2031.240(b).  Alternatively, if no privileged documents exist, then the responding party will need to amend its response to omit the word “unprivileged.”

Fourth, the response that documents will be produced “if they have not already been produced” is evasive. The response should simply state whether they would be produced or not.

A Word of Advice: It is important that you follow up on the deficiencies of a document response as you don’t want to have a document introduced as evidence at trial by your opponent that you never seen before. Make sure that the response is in compliance with C.C.P. 2031.210, 2031.220, 2031.230 and 2031.240 and that you are satisfied that the responding party has conducted a diligent search and reasonable inquiry when collecting the documents for production.

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

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

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

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

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

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

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

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

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

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

Continue Reading No Waiver of Privileges for Inadequate Privilege Log

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Recently I was contacted to help on a party’s Motion to Compel Further Responses to Form Interrogatories, Requests for Production of Documents, and Requests for Admissions. In viewing opposing counsel’s responses to the discovery, I gazed upon the General Response and Objections preamble in absolute astonishment.  It read as follows:

Continue Reading Why You Need to Bring a Motion to Strike General Objections

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ANSWER:     A fictional document. A non-existent objection neither based in statutory authority nor found in case law. A statement by a party during the discovery phase that they will neither be held to the Code of Civil Procedure nor the rules of evidence.

In my years as a discovery referee, I have found that lawyers have gotten into the bad habit of inserting a preamble in their responses to interrogatories, requests for production and requests for admissions. These preambles often state the obvious as to what their rights are as responding parties. However, many times these preambles state general objections to the entirety of the propounded discovery and insert rights that are contrary to the obligations of the Discovery Act, the evidence code and current case law. Even though several interrogatories, requests for documents and request for admissions may be objectionable on the same ground they may not be objected to as a group. See Hogan and Weber, California Civil Discovery (2d. ed 2009) §51 Continue Reading What is a General Objection?

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During my seminar on “Sanctions Denied,” I was asked how do you handle discovery abuse when it is part of a deep pocket defendant’s litigation strategy.  His story went like this:

Plaintiff’s counsel had been to court several times on motions to compel documents and motions to compel further documents from an international Corporation.  The court’s most recent order was that the documents were to be served two weeks before the corporation’s person most knowledgeable depositions were to take place in London.   Instead defendant produced 30,000 documents on a CD less than 24 hours before the London depositions were to begin.   Plaintiff counsel went forward with the depositions as trial was in a month and his client could not afford for the lawyer to go to London another time.  Plaintiff counsel expressed his frustrations that even though the court gave him $6000 in sanctions he was severely handicapped in his preparation for the depositions and it impacted on what evidence he could obtain before trial.

Even though this is an extreme example, it is not unusual.  The real question is what could he have done and what should you do if you find yourself in this situation.

Continue Reading When Discovery Abuse is a Trial Strategy

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When a Judge or Discovery Referee makes a comprise in a a discovery dispute–splitting the baby–I cringe. This goes against the philosophy of the Discovery Act and current case law. There are rules in discovery and attorneys are expected to play by those rules. When one side plays by the rules and asks the court to enforce those rules, it becomes disheartening to that party when the Judge or Discovery Referee splits the baby instead of making the tough call.

Recently, I heard a lawyer bemoan the fact that instead of granting the motion to compel further responses to requests for documents documents which he clearly had won, the judge ordered that the responding party to turn over all its declared experts files prior to the declared expert’s deposition instead.  Apparently the judge was persuaded by the opposition’s position that to provide a further response and gather all the responsive documents would take too much time away from their preparation of the impending trial. This order was wrong on so many levels I don’t know where to begin. Continue Reading A Judge Needs to Call Balls and Strikes on Discovery Motions

iStock_000016672124XSmall-1.jpgI recently received an e-mail from a pro-per who asked me

“ 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…

Continue Reading Save Time, Money and Angst — MEET AND CONFER

iStock_000000215562XSmall.jpgLast week I received the following e-mail from one of my readers:

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? Continue Reading Am I Naïve to Think Something Should Be Done?