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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.

First:         Moving party was entitled to an order granting his motion to compel further responses to documents. The responses to the requests were due more than three months prior to the hearing and he too has to prepare for the impending trial.  Now the judge has handcuffed him by not allowing him to prepare for trial with all the documents he is entitled to receive in discovery. This limited his ability to fully prosecute his case and possibly exposing him to a malpractice lawsuit.

Second      The judge has also given the opposing side an unfair advantage as they can use documents at trial that the moving party has never seen.  This is contrary to the purpose of the 1986 Discovery act, which was to take the “game element out of discovery” and that there be “no surprises at trial” by allowing a full exchange of all information available to both sides. See Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2012) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355,376 (pdf).

Third:        The judge is wrong on the law when he ordered the opposing party to turn over the expert’s entire file before the expert was deposed.  Until a declared expert testifies, the is a consultant and his file is protected by the work product doctrine. See Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2012) ¶ 8:1687.5, citing Shooker v. Superior Court (2003) 111 CA4th 923,930 (pdf) and Kennedy v. Lucky Stores (1998) 64 CA4th 674, 679 (pdf).

Discovery motions need to be taken seriously.  Judges and Discovery Referees need to adhere to the Discovery Act and current case law and call balls and strikes.  These rulings may not make them fans of the litigants, but they impact a case as much as demurrers and motions for summary judgments.   It is also important that the attorneys be prepared to argue for their clients discovery.  You need to point out and make a record that you have the right to the discovery, that you met and conferred with opposing counsel in good faith, that you have spent needless time and money trying to obtain the discovery and should recover sanctions.  It is your obligation to your client to make sure that the Judge or Discovery Referee doesn’t just split the baby in an attempt to not have to make the hard call.

 

 

  • Excellent points. It’s useful to remember where we get the “split the baby” terminology. If the litigants don’t care enough about the baby to cede the issue, all you’ve got is a dead baby.