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.

 

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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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Here is another great article from Miles B. Cooper.

Subtitle: Inadvertent disclosure of privileged documents during discovery

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

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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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Have you ever had a judge give you a ruling in discovery that was so absolutely wrong that you knew you had to fight it? Yet, everyone you talk to tells you that it is almost impossible to get a writ in discovery so you just live with the ruling. Appellate Lawyer Jerry Clausen from San Francisco wrote a great article in Plaintiff Magazine titled “Obtaining Review of Discovery Rulings.”   Here it is for your enjoyment.

Continue Reading Obtaining Review of Discovery Rulings

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When plaintiff receives a demand for a physical examination he or she have 20 days after the service of the demand to serve their response.  Pursuant to C.C.P. §2032.230 (pdf), plaintiff has three options:

  1. Agreeing to the request;
  2. Agreeing as modified to the request; or
  3. Refusing to to submit to the demanded physical examination for reasons specified in the response.

Continue Reading Plaintiff’s Rights Regarding an Independent Medical Examination

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In most personal injury actions the plaintiff is served with a Notice for an Independent Medical Examination. It has become so commonplace that no one really thinks twice about the demand. However, there are a few requirements to this discovery device that defendant must comply with in order to perfect the request. Continue Reading I’ve Got This Doctor You Gotta See!

Paper Pulling Between LawyersOn August 14, 2012, Judge William A. Mayhew of Stanislaw Superior Court issued his Notice of Hearing on Issues Re Remand (pdf)in the case of Debra Coito v. State of California.  The order requested that the following issues to be briefed:

  1. Does the absolute privilege apply to all or any part of the recorded witness interviews?
  2. Does the Plaintiff contend that they can make a sufficient showing of unfair prejudice or injustice under C.C.P. Section 2018.030(b) such as to allow discovery as to any of the interviews that may be found to be not absolutely privileged?
  3. As to interrogatory 12.3, does the STATE contend that answering said interrogatory would result in opposing counsel taking undue advantage of the attorney for the STATE’s industry of efforts or that answering said interrogatory would reveal the attorney of the STATE’s tactics, impressions or evaluation of the case? Continue Reading COITO v. SUPERIOR COURT–Is It Heading Back to the Supreme Court?

Wallet with MoneyA fellow Bay Area attorney contacted me about being sanctioned in excess of $5,000. He was mortified, as it was the first time he had ever been sanctioned and couldn’t believe the amount he was sanctioned under the circumstances. After I had spoken to him about his remedies, one being, a Writ (pdf), he wrote me the following e-mail.

Just wondering, but what does the phrase “acted with substantial justification” mean in the sanctions statute for motion to compel depo testimony, CCP 2025.480 (pdf)? Continue Reading Acted with Substantial Justification

Objecting male attorney.jpgIn the spirit of my most recent blog, “OBJECTION!! There’s this case that says . . . “, here is a list of proper and improper objections to deposition questions that you should also keep in the back of your legal pad.  

OBJECTIONS TO DEPOSITION QUESTIONS

Objections to the form of questions are waived if not raised at the deposition. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:721 (citing C.C.P. §2025.460 (pdf)(b)). 

Instructing witness not to answer is improper unless objecting on grounds of privilege. CCP §2025.460 (pdf)Stewart v. Colonial Western Agency, Inc.(2001) 87 CA4th 1006 (pdf), 10015.

Speaking objections which counsel explains his rationale for the objection is improper as it is usually used as a tactic to give the deponent a heads up that the area of questioning is dangerous and how he should answer.  This is a form of “coaching” the witness and a protective order may need to be sought.  See CEB, California Civil Discovery Practice (4th ed. 2010) §6:100. 

Continue Reading DEPOSITONS–What are the Real Objections?