“ 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…

The purpose of the “meet and confer” requirements set forth in C.C.P. §§ 2025.450(b)(2)(pdf)), 2025.480(pdf), 2030.300(b)(pdf), 2031.310(b)(pdf), 2032.250(pdf) and 2033.290(pdf) was for the lawyers to revisit their position, in good faith discuss a resolution and avoid unnecessary discovery motions.

Unfortunately, times have changed since the Discovery Act of 1986 went into effect. No longer can a law firm afford to have an associate sit at the knees of a respected senior partner and watch and listen and not bill. No longer do lawyers have time for the “two martini” lunch in order to get input from their colleagues about cases they are having trouble with. No longer is the legal community so small that you know you are going to see opposing counsel again and fear their retaliation.

For the last twenty years, many of us, had to learn how to litigate by doing and suffering the repercussions. Bad habits, abuse and inaccuracies regarding the law have begat more bad habits, abuses and inaccuracies. It seems like more and more cases are doing battle in the gutter then in the courtrooms. This is most evident in the in the discovery battles and the failure of counsel to “meet and confer” in good faith.  

Despite a party's threat that they will seek sanctions, no court is going to award sanctions if you don't meet and confer in good faith and in fact will sanction you if you don't.  See C.C.P. §2033.290 (pdf) 

The leading case on “meet and confer” requirements is Obregon v. Superior Court (1998) 67 CA4th 424 (pdf). The Second Appellate District stated that in determining whether a party has met and conferred met and conferred in good the court should consider the following relevant factors:

1. The history of the case and the past conduct of counsel as it reflects upon the bona fides of their efforts;

2. the nature and extent of the actual efforts expended;

3. the nature of the discovery requested and its importance to the case;

4. the size and complexity of the case;

5. the effect of expense upon litigation of the case; and

6. whether or not the discovery propounded would be so expensive for the other side that its intent was to force settlement other then to reach the merits of the case. Obregon at 431.

Obregon is a helpful case for the court’s, but what about the litigants. What should they be doing? According to Townsend v. Superior Court (1998) 61 CA 4th 1431 at 1439 (pdf), 

“a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." [Emphasis added]

In order to meet this standard, each side has their own responsibilities. These are my suggestions:

PROPOUNDING PARTY

First: Once you have determined that you will need supplemental responses to you propounded discovery, call opposing counsel and set up a time to meet in person. Tell him/he that you will prepare a written response to his objections so you can go through them.

Second: Review your requests and determine whether or not the objections are valid. Prepare your written “meet and confer” letter in the format of a Separate Statement of Items in Dispute (pdf).  That way you are ready to file your motion to compel further responses, if it becomes necessary. Remember a  “single brief letter” with no explanation why the discovery was proper does not constitute a reasonable and good faith attempt at informal resolution. See Obregon  at 432.

Third: Prepare a draft protective order to bring to the meeting if any objections are as to privacy, trade secrets, etc.

Fourth: Consider bringing in a discovery referee to mediate the discovery disputes, do an in camera review and/or to make a finding if necessary.

Fifth: Make sure you get a written stipulation extending your time to bring a motion to compel further responses. The meet and confer process DOES NOT extend the 45 Day limit within which the propounding party must file a motion to compel further responses.  See Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681 at 683-684 (pdf).

At the meeting:

• Propose a protective order;
• Ask for authorizations for third party custodian of records instead of the document request; and/or
• Agree to narrow the scope of discovery by issues, time, location, etc.

RESPONDING PARTY

First: Offer or agree to an in person meeting to meet and confer.

Second: Prior to the meeting, revisit your objections and determine whether any are garbage objections.  If any are, offer to withdraw them.

Third: Determine what is your real complaint to the discovery requests:

• If vague and ambiguous, offer definitions and/or a revised version which you will answer.
• If overbroad and burdensome, then offer a revised version narrowing the scope and/or offer signed authorizations to third party custodian of records.
• If you are objecting on grounds of privacy, trade secrets, etc., prepare a protective order  and bring it to the meeting.

At the meeting:  offer your compromises and don’t try and defend your garbage objections.

MORAL OF THE STORY: Litigators need to put down the sword and talk to one another when the discovery battles begin. These battles cost your clients money and you too much time and angst.

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).

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.

When I started this blog I asked fellow attorneys what issues they would like me to address.  I received this response from a lawyer in San Francisco: 

Key problem – judges that won't crack down on parties that lodge bogus objections and don't answer interrogs, and object to discovery demands that are straight forward. Amount of sanctions awarded is usually pitiful. 

In order to overcome the reluctance of the judge, you need to be proactive in your moving papers and your arguments at the hearing regarding your request for sanctions.  Don’t be timid on asserting your position on this.  It is just as important as your other arguments.  Filing motions and the imposition of sanctions curbs discovery abuse and the 1986 Discovery Act recognizes this.  Thus you need to bring the motion and start establishing a pattern of opposing counsel’s discovery abuse and create a record of an imposition of sanctions.  Moreover, remember that judges are reluctant to impose a terminating sanction unless a history of lesser sanctions have first been imposed or prior discovery orders have been violated. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶ 8:1215 et seq.  

When seeking an order to recover sanctions, C.C.P §2023.040 (pdf)  requires your  discovery motion to contain the following:

Notice --The notice of motion must expressly state that you are seeking [monetary, issue, evidence or terminating] sanctions as well as the identity of the person, party or attorney against whom sanctions are being sought. 

Points and Authorities–Your moving papers must state the facts of the noncompliance, the authority as to why it is discoverable and the authority for the award of sanctions.  Don’t make the argument requesting sanctions in your P’s and A’s an afterthought.  Spend time on it.  List all the garbage objections to very basic questions and the law’s supporting your interrogatory or request. For example: “The identity and location of witnesses are not protected by attorney work product or the right of privacy.  C.C.P. §2017.010 (pdf) clearly states that the identity and location of witnesses are discoverable.”   Detail all the stonewalling, hostility and lack of good faith efforts during the meet and confer process.  Make it clear that your train has not left the station and you are losing precious trial prep time.   Make sure you site the authority for the sanctions you are requesting. 

Declaration--Declarations need to state (1) facts of the noncompliance and discovery abuse in which the declaring party has personal knowledge (If necessary use multiple declarations) (2) the meet and confer process, (3) time you have spent and are going to spend on each aspect of the motion, (4) your hourly rate  and (5) the calculations for the sanctions.  Again, do it in detail!!  Hint:  Do not cut your hours.  You need to let the judge know how much money this discovery dispute is costing your client. 

 In your moving papers point out to the court:

C.C.P. §2023.030 (pdf)(a)  states that “If a monetary sanction is authorized by any provision of this title (and almost all of them are), the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  [Emphasis added]

The purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture, and the avoidance of the trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.  California Discovery Citations (TRG 2010) ¶1:6 citing Parker v. Wolters Kauwer U.S., Inc. (2007) 149 CA4th 285 (pdf) at 301.

Discovery sanctions are not a windfall.  They are to compensate for costs and fees incurred by the party in enforcing discovery or defending a meritless motion.  See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶8:1213 citing Caryl Richards, Inc. v. Superior Court (1961) CA2d 300 at 303. 

Discovery sanctions are not reported to the State Bar. See Bus. & Prof. Code. §6068(o)(3) (pdf).

The “trial court is not required to make findings at all” in granting any discovery sanctions, including terminating sanctions.  See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶8:1241.5 citing Ghanooni v. Super Shuttle of Los Angeles (1993) 20 CA 4th 256 (pdf) at 261. 

 At the hearing:

Be prepared to argue for sanctions.  Do not be afraid to make a record.  If you think that the judge is still reluctant to give you sanctions, then suggest that the sanctions be stayed to be lifted by the court at a later date (i.e., when the party complies with the order or, the one I like to use, by the trial judge.).  This is  important, because you need to establish a history of abuse.  Past conduct that has already been considered by the court cannot be the basis for additional sanctions. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶8:1209a citing Andrus v. Estrada (1995) 39 CA4th 1030 (pdf) at 1043. 

The court needs to take discovery motions seriously.  They impact a case just as much as and in many cases  more than demurrers and  motions for summary judgment.  However, it is your job to educate the judge as to why you are entitled to sanctions.   Good luck!!

 Let us know if  you are successful in your next quest for discovery sanctions.  

When I look back on this case,  I realize that the moment defense counsel used the word "Bitch" it became the turning point of the case. These two well-respected attorneys’ hostility toward one another drove the case. There were no more professional courtesies and the parties took extreme positions in their settlement negotiations. The case eventually went through a lengthy bench trial and appeal process that lasted years before plaintiff recovered an eight-figure judgement.

The moral of the story here is "you gotta know when to hold’em and know when to fold’em."  In other words, is your discovery battle worth it in the long run?  In this case, a simple, sincere apology could have put the case back on track, possibly leading to settlement and I may never have been appointed to wear the black and white striped shirt.  

Not only are most objections garbage, we tend to recycle our garbage objections from one case to the next. Sometimes, we pick up other attorneys’ garbage objections and contribute to more litter. This is done over and over again without even thinking what it is doing to the environment of the litigation.

Garbage objections fuel the ire of opposing counsel. The “meet and confer” letter that is soon to follow is usually full of hostility and threats. Any amicable relationship you had hoped for with opposing counsel is on the cusp of being destroyed. More important, you are now costing your client more money in attorneys’ fees and possibly in settlement.  So before you throw out the trash, look at these common objections and why they will be overruled:

“Ambiguous”      Valid objection only if the question is totally unintelligible. A party has a duty to answer if “the nature of the information sought is apparent.” Deyo v. Kilbourne (1978) 84 CA 3d 771(pdf), 783. Rather than sustaining the objection, the judge may ask the propounding to rephrase the question or request. See Cembrook v. Superior Court (1961) 56 C2d 423 (pdf), 430   Hint: instead of objecting state what you think the interrogatory is asking then answer.

“Hearsay”     Discoverable as long as it may lead to admissible evidence.  C.C.P. §2017.010 (pdf),  Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf), 391  Hint:  Don't confuse rules of evidence with rules for discovery.  Discovery rules are more liberal.

“Irrelevant”     The interrogatory must be relevant to the subject matter of the litigation. Deaile v. General Tel. Co. (1974) 40 CA3d 841 (pdf), 850.  Hint: fishing trips are permissible Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf), 383-385, just be prepared to state what you are fishing for.

“Overbroad”     Valid only if the question calls for an undue burden such as “shotgun” interrogatories” as they are too general (i.e., “Please state the identity of each and every person who has knowledge of the relevant facts of the litigation.”)  See CEB, California Civil Discovery Practice (4th ed. 2009) §7.85

“Burdensome and Oppressive"  The showing required to sustain this objection is that the intent of  the party was to create an unreasonable burden, or that burden created does not weigh equally with what requesting party is trying to obtain from it. See Mead Reinsurance Co. v. Superior Court (1986) CA3d 313 (pdf). In the Mead case, the objecting party showed that it would require the review of over 13,000 claims files requiring five claims adjusters working full time for six weeks.

"Information equally available to asking party"     The only time this objection works is if a party has to go get public records [Bunnell v. Sup. Ct. (1967) CA2d 720 (pdf), 723-724] or interview independent witnesses [Holguin v. Sup Ct. (1972) 22 CA3d 812 (pdf), 821] in order to answer the questions.

Referencing Documents:    The “see complaint” type  answer is not proper.  If the question requires reference to some other document, then the document should be identified and its contents summarized so that the answer by itself is fully responsive to the interrogatory. Weil and Brown Civil Procedure Before Trial (TRG 2009) §8:1049 citing Deyo v. Kilbourne (1978) 84 CA 3d 771(pdf). The exception to this is C.C.P. §2030.230 (pdf) where the code allows the answering party to allow the interrogating party to inspect the files and records. However, the answering party must show: (1) a compilation, abstract, audit or summary of its records is necessary in order to answer the interrogatory; and (2) no such compilation etc. exists; and (3) the burden or expense of preparing or making it would be substantially the same for the asking party as it would for the answering party.

Though the statutory authorities used above are for interrogatories, there is corresponding statutory authority for requests for production of documents and requests for admissions.  The case law can be applied for other discovery devices.