Exasperated JudgeThere are very few discovery cases that come out each year.  Usually they are are significant and involve privileges such as Coito v. Superior Court and Catalina Island Yacht Club v. Superior Court.  The newly reported case  Mitchell v. Superior Court (2015) 243 CA4th 269 is not one of those cases.  However, it does demonstrate a trial court’s error in excluding witnesses at trial, because it did not understand the definition of “INCIDENT” in the Judicial Council Form Interrogatories and what the standard is in issuing evidence sanctions regarding discovery abuse .

The case involved an auto accident in which plaintiff was injured.  Defendant served Judicial Council Form Interrogatories which included Interrogatory No. 12.1.   Interrogatory No. 12.1, which is  under the 12.0 Investigation—General Series, reads as follows:

12.1 State the name, ADDRESS, and telephone number of each individual

(a)  who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT;

(b) who made any statement at the scene of the INCIDENT;

(c) who heard any statements made about the INCIDENT by any individual at the scene; and

(d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).

In her answers to this interrogatory, plaintiff only identified one witness.  Subsequently plaintiff identified three other witnesses whom she intended to call at trial to describe her how the accident affected her physically and how it impacted on her ability to do her job.  The trial court granted defendant’s motion in limine to exclude the testimony of the three witnesses for plaintiff’s failure to divulge their identity in the responses and supplemental responses to interrogatory 12.1.

The Second District Court of Appeals found that the trial court abused it’s discretion stating:

We read interrogatory No. 12.1 to seek the identities of percipient witnesses, witnesses who were at the scene immediately before or after the accident, those privy to statements by percipient witnesses to an accident and those who might have personal knowledge of the accident itself. The interrogatory does not seek the identity of witnesses—such as those whose testimony was excluded by the trial court—who may testify to the physical injuries or physical disabilities suffered by a plaintiff as a result of the accident. Our view that interrogatory No. 12.1 should be narrowly construed to refer to witnesses of the incident itself is bolstered by other form interrogatories, in particular Nos. 12.4 and 16.1, which distinguish between an “incident” and a plaintiff’s “injuries.”

Moreover, exclusion of a party’s witness for that party’s failure to identify the witness in discovery is appropriate only if the omission was willful or a violation of a court order compelling a response. (See Code Civ. Proc., §§ 2023.030, CCP 2030.290, subd. (c), 2030.300, subd. (e); see also Saxena v. Goffney (2008) 159 Cal. App. 4th 316, 333-335 [71 Cal. Rptr. 3d 469]; Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 273–275 [105 Cal. Rptr. 276].) Even if interrogatory No. 12.1 could be construed as a request for the identity of witnesses who would testify to post-accident physical disabilities and difficulties, there was no evidence that plaintiff’s failure to identify the witnesses was willful or that plaintiff contravened a court order to provide discovery.

Accordingly, it was error to impose an evidence sanction based on plaintiff’s failure to divulge the names of the three witnesses in response to interrogatory No. 12.1 or to defendant’s general request for supplemental responses to interrogatories.

HELPFUL HINT: Trial Departments are frequently removed from discovery battles and may not be familiar with the subtleties of the Discovery Act.  Nonetheless, this case and the Biles v. Exxon Mobil Corp (2004) 124 CA4th 1315 that I wrote about in “The Pitfalls of Bad Discovery Habits” are examples of trial courts’ misunderstanding of what a court needs to find before they can impose evidence sanctions. Keep both cases handy as they are important if you are ever opposing a motion in limine to exclude evidence that you didn’t produce during discovery.

businessman sitting at his desk and falling asleep

For years I have been blogging about bad discovery habits from Garbage Objections to unauthorized General Objections, and preached that attorneys must play by the rules. As you know if you have read my blogs, I am quite the supporter of the 1986 Discovery Act, and often express my opinions  on a party’s responsibility during the discovery process.  More importantly, I attempt to educate lawyers about the Discovery Act so they can be well prepared with their arguments when the court makes a wrong turn (yes, it does happen).

The case of Biles v. Exxon Mobil Corp. (2004) 124 CA4th 1315 is an example of the court’s misunderstanding of the Discovery Act and reacting erroneously to a garbage discovery response.  The facts are as follows:

Defendant Exxon served a special interrogatory asking plaintiff to identify “each person who has knowledge specifically of the work at [the Humble refinery] that you contend created your exposure to asbestos fibers.

Plaintiff responded:  “ After a reasonable and good faith inquiry, plaintiff currently has no further information responsive to this Interrogatory.  Plaintiff expressly reserves the right to amend or supplement this Response based on the outcome of such investigation.  Plaintiff’s investigation and discovery are continuing.”

Five months later, Exxon filed a motion for summary judgment.  Plaintiff’s opposition to the summary judgment included a declaration from a witness, which should have arguably defeated Exxon’s motion.  Exxon objected to the declaration of the witness on the ground that the witness had not been identified in plaintiff’s interrogatories responses.  The court sustained the objection and granted motion for summary judgement to Exxon.  The court rationalized its decision to strike the declaration stating:

Look, when you answer an interrogatory and you don’t give any names at all but say you are going to supplement it, the obligation is on you to supplement it as soon as you find out.”

The First District Court of Appeal reversed the trial court on three grounds: (1) there was no evidence that plaintiff’s initial response was willfully false at the time it was served, (2) there is no obligation to supplement without a court order [or having been served with a supplemental interrogatory] and (3) the appropriate sanction if there was any discovery abuse, absent unusual circumstances or a violation of court order, was monetary sanctions, not evidence sanctions.

It took a year for the Court of Appeal to right this wrong and probably thousands of dollars in attorney time that the attorney probably wrote off.  All because of the unnecessary language,  “Plaintiff expressly reserves the right to amend or supplement this Response based on the outcome of such investigation,” included in the discovery response, and due to plaintiff’s encounter with a judge who didn’t know the finer points of the Discovery Act (or ignored them).

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.

iStock_000008477093SmallI have always been a strong advocate that you should be awarded sanctions if you had to bring a motion to get the relief you were entitled to even if the other side complied prior to the hearing on the motion.  However in the case of Evilsizor v. Sweeney (2014) 230 CA4th 1304, the First District Court of Appeal had an interesting take on the issue.

Continue Reading Should you withdraw your motion if the other side has complied?

Judge and Hammer

W. George Wailes, a Business Trial Attorney and Director at Carr McClellan, in Burlingame, CA brings us this warning from the California Court of Appeal about what could happen to a third party that refuses to comply with a subpoena for electronically stored information.

******************************

The California Court of Appeal recently provided rare guidance regarding a third party’s obligations to produce electronically stored information (ESI) in response to a subpoena.  In Vasquez v. California School of Culinary Arts, Inc. (Sallie Mae) (2014) 230 CA4th 35, the court defined subpoenaed parties’ obligations to extract existing data from computer systems and upheld an award of attorneys’ fees against the recalcitrant third party.  The court concluded that it is unreasonable for a third party to withhold ESI that exists in its computer systems on the basis that outputting the ESI entails creating a “new” spreadsheet.

Continue Reading A Third-Party Can Expect Sanctions for Ignoring a Subpoena for Electronically Stored Information

iStock_000008998317Small

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

iStock_000006052108Small.jpg

 

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

Pile of Paper.jpg

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