On February 22, 2012 Assemblyman Mike Gatto  introduced Assembly Bill 1875 which would add §2025.290 to the California Code of Civil Procedure. If the bill is passed it would limit the time to take a deposition. The proposed new section would read:  

Unless otherwise stipulated to or ordered by the court, a deposition is limited to one day of seven hours. The court shall allow additional time if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.                  

 

This is the exact language used by Rule 30 of the Federal Rules of Civil Procedure  titled “Depositions by Oral Examination”. 

Before you react, realize that seven hours of  deposition testimony in one day is a lot of actual testimony time.  It would take the following schedule to complete a seven hour deposition in one day.

Should this Bill be passed?  

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).

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

Your clients have been sued by their insurance company for Declaratory Relief. The insurer asserts that there is no coverage under your clients’ liability insurance policy for a claim made against them. In deciding how to proceed, there are a few things to remember in dealing with insurance litigation. First, the duty to defend is a legal question based upon the “potential” that the lawsuit against your client could result in damages covered by the insurance policy. Montrose Chemical Corp. v. Superior Court (1995) 6 Cal. 4th 287, 300 (pdf). For the duty to defend, therefore, think summary judgment, rather than trial. Second, for indemnity (actual coverage): is the carrier defending or not? With regard to indemnity, whether the insurance company is defending affects the burden of proof. Ultimately, the insured should be prepared to prove, in order to recover indemnity or settlement costs, that their liability is in fact covered by the insurance policy.

Aside from the tactical discovery (the RFAs) obtain a complete copy of the insurer’s claim file which should contain the facts which the insurance company believes supports their claim of non-coverage, and may limit the insurer from new or different facts discovered during the coverage litigation. The company will likely assert privileges based upon attorney-client privilege (if coverage counsel was involved), where the carrier decided to insurance litigation. The carrier may also assert privileges based on confidential commercial information (reinsurance information, reserve information, and pricing information). In the context of early discovery, however, this kind of withheld information is rarely important to the limited legal issue of a duty to defend.

Be prepared, however, to deal with the time limits regarding a motion to compel when such privileges are raised. You may need to compel production if the coverage issues surround the issuance of the policy rather than the terms of the policy as issued. Also, it is possible that certain withheld information might be compelled, and could be used to support a bad faith claim later. If your case involves a dispute regarding the operative terms of the policy that were negotiated, you will want the underwriting file. That file will likely contain the application, the insurer’s quote (offer to provide coverage), the binder (confirmation of the key policy terms negotiated), the policy (whether it was issued consistent with the binder), and any communications between the insurance company and the insured’s representative concerning the policy terms, pricing and issuance.

Interrogatories and depositions are, for the most part, premature in the early stages of the case. They are critical, however, after the duty to defend has been established and the issues turn towards the company’s evaluation and position regarding indemnity.

Once the defense is established, if the coverage issues overlap with the liability issues facing your client, then the coverage case can likely be stayed by making a motion. That means that the carrier will continue defending until the case is resolved, and then use the facts from the liability case to prove non-coverage for any indemnity or settlement amounts. Montrose, supra. The trial court will stay the action after it determines:

1. what is the exact nature of the claims asserted in the underlying action,
2. what defenses to coverage are asserted by the insurers, and to what extent, if at all, are they logically related to the liability issues raised in the underlying action,
3. what factual questions have to be resolved in order to sustain or defeat such defenses,
4. what is the likely nature of the available evidence,
5. to what extent, if at all, will the insured suffer prejudice by the enforced discovery of the evidence which tends to support or defeat its claim of coverage or the defenses raised by the insurers and
6. to what extent, if at all, will a confidentiality order realistically protect the insured from prejudicial disclosure. Haskel, Inc. v. Superior Court (Cal. App. 2d Dist. 1995) 33 Cal. App. 4th 963, 980 (pdf)  However, if the coverage issues are unrelated to the liability issues, the court will not stay litigation of the coverage issues. If your client wants a stay, think about these factors as part of the Requests for Admission.

Turning to indemnity, the obligation of the carrier to pay damages on behalf of the insured, the burden of proof is critical. If the insurer is not defending, and the insured is successful in establishing the carrier should have defended, the burden on indemnity shifts to the insurer to prove that there is no coverage under the policy. For example in a case between insurers brought by an one who defended and indemnified an insured against a coinsurer who did not defend or indemnify the insured, the participating insurer has met its burden of proof when it makes a prima facie showing of coverage under the nonparticipating insurer's policy—the same showing necessary to trigger the recalcitrant insurer's duty to defend. The burden of proof then shifted to the nonparticipating insurer to prove the absence of actual coverage.  Safeco v. Superior Court (Second District, 2006) 140 Cal. App.4th 874, 881 (pdf).

On the other hand, if the insurer is defending the insured and the dispute concerns whether the actual liability is covered by the policy, the burden is on the insured “ to establish that the insured’s actual liability to the plaintiff is on a covered occurrence under the insurance policy. And, once an insured has made this showing, the burden is on the insurer to prove the claim is specifically excluded.  Aydin Corp. v. First State Ins. Co. (1988) 18 Cal. 4th 1183, 1188 (pdf)  Secure the defense first, using the facts at your disposal. Determine whether you can obtain a stay of the coverage case or if you want one. Then, focus on establishing the facts necessary to establish coverage.

C.C.P. §2033.060 (pdf)  sets forth the basic tenants as to how a request for admission must be drafted:        

• Each request must be numbered consecutively.  C.C.P. §2033.060(a)
• The first paragraph immediately shall state he identity of the party requesting the admissions, the set number, and the identity of the responding party.  C.C.P. §2033.060(b)
• Each request shall be “separately set forth.”  C.C.P. § 2033.060(c)
• Each request shall be “full and complete in and of itself” and there shall be no preface or instructions.  C.C.P. §2033.060(d)
• No carry over definitions.  C.C.P. §2033.060(e) 
• No subparts or “compound, conjunctive or disjunctive” requests.   C.C.P. §2033.060(f)
• If you are requesting an admission of the genuineness of documents, then they must be attached.  C.C.P. §2033.060(g)

The discovery treatises also give some helpful advice.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), §8:1287.1 states:

Keep your RFA’s as simple as possible so there is no room for denial!  This will avoid objections on the ground of ‘compound and conjunctive.

Keep in mind that any admission obtained will probably be construed narrowly.  So, make sure there is no room for quibbling as to what was admitted!

CEB, California Civil Discovery Practice (4th ed. 2010) §9:17 advises that because the court has broad discretion in determining admissibility and relevance of evidence and scope and effect of an admission the

. . . RFA’s must be clear concise and unambiguous.  See Fredericks v. Kontos Indus., Inc. (1987) 189 CA 3d 272, 277 (pdf) (if admission is susceptible to more than one meaning, trial court must exercise its discretion to determine scope and effect of admission ‘so that it accurately reflects what facts are admitted in the light of other evidence’.  Trial courts may consider parol evidence that explains an admission but cannot use parol evidence to contradict the plain meaning of a response to an RFA; if a response to an RFA is unambiguous, the matter admitted is conclusively established.  Monroy v. City of Los Angeles (2008) 164 CA4th 248, 260 (pdf)

However, the best advice I was ever given was when I was admonished by a Judge.  During a Case Management Conference the Judge asked me what were the jury instructions I was going to use at trial.  I responded “Your Honor we don’t even have a trial date yet.”  The Judge replied “Then how do you know what discovery you need to prove your case?”   I went back to my office and whined to our seasoned trial attorney.  He had no sympathy for me and said “The Judge is right. Go look at the jury instructions and figure out your case.”  With my tail between my legs I went to the library and looked at jury instructions for the first time.  They were amazing.  They were one page road maps as to what I had to prove.  Right then and there I started using requests for admissions. 

As an example, using California Jury Instruction 1201 Titled Strict Liability—Manufacturing Defect—Essential Factual Elements (pdf), I would write my requests as follows:

Request # 1:    Admit that [name of defendant] [manufactured/ distributed/ sold] the [product].

Request #2:     Admit that the [product] contained a manufacturing defect when it left [name of  defendant]’s possession.

Request #3:     Admit that [name of plaintiff] was harmed while using the [product] in a reasonably foreseeable way. 

Request #4:     Admit that the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm.

I would then serve these Requests for Admissions with Form Interrogatory #17.1 and a Request for Production of Documents for “all documents listed in your answers to Form Interrogatory 17.1(d)."    The foundation of my discovery plan was now set and I was in a position to receive effective evidence or, in the alternative, cost of proof sanctions. 

• Each request must be numbered consecutively.  C.C.P. §2033.060(a)
• The first paragraph immediately shall state he identity of the party requesting the admissions, the set number, and the identity of the responding party.  C.C.P. §2033.060(b)
• Each request shall be “separately set forth.”  C.C.P. § 2033.060(c)
• Each request shall be “full and complete in and of itself” and there shall be no preface or instructions.  C.C.P. §2033.060(d)
• No carry over definitions.  C.C.P. §2033.060(e) 
• No subparts or “compound, conjunctive or disjunctive” requests.   C.C.P. §2033.060(f)
• If you are requesting an admission of the genuineness of documents, then they must be attached.  C.C.P. §2033.060(g)

The discovery treatises also give some helpful advice.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), §8:1287.1 states:

Keep your RFA’s as simple as possible so there is no room for denial!  This will avoid objections on the ground of ‘compound and conjunctive.

Keep in mind that any admission obtained will probably be construed narrowly.  So, make sure there is no room for quibbling as to what was admitted!

CEB, California Civil Discovery Practice (4th ed. 2010) §9:17 advises that because the court has broad discretion in determining admissibility and relevance of evidence and scope and effect of an admission the

. . . RFA’s must be clear concise and unambiguous.  See Fredericks v. Kontos Indus., Inc. (1987) 189 CA 3d 272, 277 (pdf) (if admission is susceptible to more than one meaning, trial court must exercise its discretion to determine scope and effect of admission ‘so that it accurately reflects what facts are admitted in the light of other evidence’.  Trial courts may consider parol evidence that explains an admission but cannot use parol evidence to contradict the plain meaning of a response to an RFA; if a response to an RFA is unambiguous, the matter admitted is conclusively established.  Monroy v. City of Los Angeles (2008) 164 CA4th 248, 260 (pdf)

However, the best advice I was ever given was when I was admonished by a Judge.  During a Case Management Conference the Judge asked me what were the jury instructions I was going to use at trial.  I responded “Your Honor we don’t even have a trial date yet.”  The Judge replied “Then how do you know what discovery you need to prove your case?”   I went back to my office and whined to our seasoned trial attorney.  He had no sympathy for me and said “The Judge is right. Go look at the jury instructions and figure out your case.”  With my tail between my legs I went to the library and looked at jury instructions for the first time.  They were amazing.  They were one page road maps as to what I had to prove.  Right then and there I started using requests for admissions. 

As an example, using California Jury Instruction 1201 Titled Strict Liability—Manufacturing Defect—Essential Factual Elements (pdf), I would write my requests as follows:

Request # 1:    Admit that [name of defendant] [manufactured/ distributed/ sold] the [product].

Request #2:     Admit that the [product] contained a manufacturing defect when it left [name of  defendant]’s possession.

Request #3:     Admit that [name of plaintiff] was harmed while using the [product] in a reasonably foreseeable way. 

Request #4:     Admit that the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm.

I would then serve these Requests for Admissions with Form Interrogatory #17.1 and a Request for Production of Documents for “all documents listed in your answers to Form Interrogatory 17.1(d)."    The foundation of my discovery plan was now set and I was in a position to receive effective evidence or, in the alternative, cost of proof sanctions. 

My expert will not be ready to testify until your expert testifies. Besides you are the plaintiff and you have to go first!  

Heard this before?  I have and there are some significant problems with defense counsel’s position. 

Second, C.C.P. §2034.260.pdf(c)(4) requires that the attorney disclosing the expert state under penalty of perjury “that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial.”  In other words, counsel is swearing under penalty of perjury that the expert is ready to testify with his trial testimony.   

Third, there isn’t enough time to play games.  Pursuant to C.C.P. §2034.230 (pdf) (expert disclosure 50 days before trial), C.C.P. §2024.030 (pdf) (expert discovery closes 15 days before trial) and C.C.P. §2025.270 (pdf) (10 day deposition notice) you only have a 25 day window period in which to take all expert depositions and that includes Saturdays and Sundays.  If you exclude the weekends, you have less then 15 days.  This is assuming that you start noticing expert depositions on Day 50. 

And, finally, even if you notice the expert depositions on the last days when experts can be deposed you may have wasted your time if you haven’t checked whether or not the expert is available.  You could argue that they have been noticed for deposition and they must appear.  However, that makes for one hostile deposition.  More likely you are going to agree to reschedule past the close of expert discovery which will then interfere with your preparation for trial. 

Disclosing experts 50 days before trial and having only 25 days in which to take the depositions means you are going to have to work with counsel to get things done.  There are a few things that you can do prior to the expert disclosure that will make the last 50 days before trial a tad less stressful:  

1. If the case is expert driven or more than five experts are going to be taken, consider moving the expert disclosure from 50 days before trial to 75, 90 or even 150 days before trial.
2. Agree with opposing counsel to provide dates for each expert’s availability for deposition at the time of the expert disclosure.  This will give everyone the opportunity to set the expert deposition schedule as soon as possible, thus leaving time for trial preparation. 
3. Agree to shorten time on service of the Notice of Deposition so you can use the dates between Day 50 and Day 40 and, if necessary agree to schedule
4. Agree to allow a second deposition of your expert if your expert provides an updated report after hearing the opposing side’s expert’s testimony.
5. Agree to a discovery referee to schedule the depositions of the experts. 

If you are unable to work with opposing counsel in the scheduling of the expert’s deposition, get the court involved immediately as time is limited.   Do not be surprised if you are confronted with an angry judge as you should have worked this out.  So don’t be surprised with the court’s creative solutions such as:

Experts shall be deposed simultaneously;

Experts shall appear at ordered times by the court and will be disqualified if they don’t appear;

Experts' depositions shall be scheduled according to experts availability and that includes nights and weekends; or

Experts shall be taken on nights and weekends during trial.

Over the years friends and colleagues have called me up asking for a quick answer on a discovery question that they have. The phone call usually went like this “I want to get plaintiff’s phone records, how do I do that?” or “I forgot to disclose experts, am I too late?” or “They want to send my client to a psychiatrist. Can I object?” I know the answers to these questions which are “Yes,” “No” and “Yes.” However, to get the statutory authority, I rely on the charts I have prepared and published over the last 18 years. The California Civil Discovery--Charts for the Everyday Litigator " (pdf)  was recently updated and now available to you for download. 

Hope it helps!!

             Agree on Service:      Agree to service by fax (pdf). [C.C.P. §1013(e) and (f)]   Get everyone’s e-mail address and agree to correspond by E-Mail Service (pdf).  Better yet, agree to accept e-mail service of all pleadings and other documents except for motions.  As for motions (pdf), consider agreeing that the moving party only need serve the full moving papers on the party to which the motion is being directed to.   All other parties are served with the notice of motion only with the option of requesting a full set of moving papers.  This procedure, commonly used in asbestos litigation, saves hundreds if not thousands of dollars on copying costs and service charges in multi-party litigation. 

             Agree on Early Expert Disclosure: If the case is expert driven or more than five experts are going to be taken, consider moving the expert disclosure from 50 days before trial to 75, 90 or even 150 days before trial.

             Agree on a Protective Order:  If the case involves the exchange of sensitive information (i.e., privacy or trade secret materials), agree to a protective order before you commence discovery.  If you need a neutral third party to help with all this, consider. 

             Agree on How Document Production Should be Handled:   If the case is document intensive, agree on a document depository and a document handling and processing protocol. Come into the electronic age – require the documents be scanned (OCR) so that you and your experts can do more efficient and effective searches. Consider using document companies that will make the depository internet-accessible, which is quite common place now.  These services allow you to decide which parties have access to which documents. Such a feature gives you, anyone in your office and your experts’ access to the documents is 24/7 and you are not hunting around for the CD’s.

             Agree on a Discovery Referee:  If you anticipate that your case is going to need hands on case management and/or you anticipate having discovery disputes agree on a discovery referee and what role he or she will play in the case.

            Agree on an Electronic Discovery Referee:   If you anticipate that you are going to have electronic discovery issues, then research and agree on a referee who has the expertise on your case.  Also, which company is going to do the retrieval for the Electronically Stored Information (ESI).

           Agree on a Mediator:  It is never too soon to start talking settlement.  Talk to opposing counsel and select a mediator and a time line for the mediation.  This is especially crucial if you have a complex case that requires a certain level of expertise.          

If you cannot get the stipulations you need, then turn to the court at the Case Management Conference for help.  

First, you need to determine your goal: Are you obtaining discovery to evaluate the case for mediation, to file a motion for summary judgment/adjudication, or to prepare for trial? Each goal has a different strategy and certain discovery devices are better suited for each goal.

• In evaluating the case for mediation, form interrogatories, a preliminary set of requests for production of documents and an informal exchange of information between the parties may be all you need.
• If you are going to trial, you are going to need admissible evidence, so the formal exchange of information with verification and authentication is going to be necessary as well as testimony under oath.
• The discovery is going to have to be even more pinpointed if you are planning to file a motion for summary judgment/adjudication. The evidence is going to have to be verified, authenticated and uncontroverted. You are going to have to make sure that any declaration being filed by the opposition will not create a triable issue of fact. The discovery devices most effective to elicit “motion-ready” responses that can be attached to your MSJ are requests for admissions and depositions. Requests for admissions allow no wiggle room. Also, you can use them to have the opposing party authenticate documents you will need to make or oppose your MSJ, or for trial [C.C.P. §2030.010 (pdf)]. Depositions allow you to nail down the testimony – and a declarant’s subsequent declaration attempting to disavow his uncorrected deposition testimony will not defeat the motion. Weil and Brown, Civil Procedure Before Trial (TRG 2010) §10.155 citing D'Amico v. Board of Med. Examiners (1974) 11 C3d 1 (pdf).

Second, you need to determine the essential elements of each of the causes of action and the evidence you are going need to prove or defeat that cause of action.

Third, you need to determine what discovery device is best suited to obtain the evidence to achieve your goal.

After this Three-Step Analysis, serve your discovery.