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
ANSWER: A fictional document. A non-existent objection neither based in statutory authority nor found in case law. A statement by a party during the discovery phase that they will neither be held to the Code of Civil Procedure nor the rules of evidence. In my years as a discovery referee, I have found that… Continue Reading
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
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)?
Does it mean the conduct that led the moving party to make the motion has to be substantially justified? Or does it mean the decision to make or oppose the motion to compel has to be substantially justified?… Continue Reading
In responding to Requests for Production of documents you have three response choices (1) agree to produce (C.C.P. §2031.220); (2) state that after a diligent search and a reasonable inquiry you have no documents (C.C.P. §2031.230) or (3) object (C.C.P. §2031.240). If you chose option three, then you must prepare a privilege log. Although C.C.P. §2031.240(b) does specifically not state the kind of identification that is required, it is expected that for each document withheld that the privilege log state (a) the nature of the document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or document control umber, if any), and (f) the privilege claimed. See California Civil Discovery Practice (CEB 4th Ed. 2011) §3.192 citing Wells Fargo Bank v. Superior Court (2000) 22 C4th 201 and §33.201for a sample of a privilege log.… Continue Reading
Last spring I had the pleasure of taking a tour of the Royal Globe Theatre in London, England. On display there was a plaque titled "Quoting Shakespeare." It brought a smile to my face when I read the passage as I realized how much of Shakespeare is in our everyday vernacular. There to I realized how many distinctive quotes there that I use over and over again as a Discovery Referee. Here are a few that you should keep handy to sprinkle into your arguments during your discovery battles.… Continue Reading
In 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.… Continue Reading
Have you ever been in a middle of a deposition and found yourself saying "OBJECTION!! There's this case that says . . . " but you can't quite remember what the name was, where you saw it or even where you might find it? And, yet, it is right on point. Well, the following is a list of cases and statutes for depositions that you should keep in the back of your legal pad as they may come in handy.… Continue Reading
Nine months after the Special Interrogatories were propounded, the Discovery Referee, found that the plaintiffs had "deliberately misconstrued the question" as to economic damages and determined that "the objections and each of them to be unreasonable, evasive, lacking in legal merit and without justification". Clement at 1284 The Referee recommended that the motion to compel further responses be granted and that plaintiffs were to reimburse defendant $4,950.00 for legal fees, $40 for filing the motions to compel and $1,642.50 for defendants portion of the Discovery Referee's fees for a total sanction of $6,632.50. The trial court agreed with the recommendation.… Continue Reading
Attorneys easily spew out the objection "the information you are seeking is not relevant to the subject matter of the litigation" as easily as they say "Good morning." If you are the propounding party your reaction is probably to be to yell out "It is too relevant!" because it doesn't even appear that the responding party actually thought it through before spewing out the objection. But what exactly is relevancy? It seems to be a nebulous term that invokes images of catching clouds with your hands or like Supreme Court Justice Potter Stewart's definition of pornography "I know it when I see it"?… Continue Reading
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:… Continue Reading
The California Supreme Court will uphold Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf). First of all, the basic purpose of the discovery is to take the "game element" out of trial preparation. See Weil and Brown Civil Procedure Before Trial (TRG 2009) ¶8:1 citing Greyhound Corp. v. Superior Court (1961) 56C2d 355, 376; Emerson Elec. Co. v. Superior Court(1997) 16 C4th 1101, 1107. Second, knowing whether or not there are witness statements is not protected under a document production as you would have to disclose the information in a privilege log, so why should it be different for interrogatories. Third, California has a work product statute--C.C.P. §2018.010 et seq.-- which codifies California law which makes witnesses statements qualified work product. And, finally, C.C.P §2018.060 allows allows any party to request an in camera review of the documents, which the defendants in Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf). did not request. Do you agree?… Continue Reading