Look at the Separate Statement of Items in Dispute (pdf) and determine whether or not you have any garbage objections.  If you do, offer to respond to those interrogatories, requests for admissions and/or requests for productions of documents by a date no later than when your opposition is due.

Claims of privileges must be protected by the attorney, but remember that they are generally narrowly construed.  The work product doctrine and the right of privacy are another story.  These objections are not privileges and can be overruled--except for absolute work product--if there is a showing that the discovery is necessary for a fair resolution of the lawsuit.  See Moskowitz v. Superior Court (1982) 137 C.A. 3d 313 (pdf), 316.  Also, the California Supreme Court is reviewing the scope of the work product doctrine in the case of  Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf).   Consider negotiating a protective order  with opposing counsel as a court most likely would grant one in the cases involving privilege,  work product doctrine or the right of privacy.

If all else fails, prepare your opposition.  Follow the same advice given in the previous blog “What Your Discovery Motion Should Look Like.”  However, one additional piece of advice–though the code does not require it, you should prepare your own Separate Statement of Items in Dispute (pdf). This document is GOLDEN because this will become the first document the court reviews in deciding the motion as it will have all the information the court needs in this one document.  Your Separate Statement of Items in Dispute (pdf) headings should look like this:

Form Interrogatory #12.1:     State the request or interrogatory verbatim.

Response:   State your response verbatim.

Supplemental Response (provide dates):     State any supplemental response verbatim.

Why There Should Be a Further Response:     State moving papers’ Separate Statement of Items in Dispute (pdf) arguments verbatim.

Why There Should Not be a Further Response:   Do not use conclusory statements. You need to be very specific in the law and the applicability of the law to your case if you are not responding to the discovery on claims of privilege, work product and/or privacy.   If you are arguing that your objections are not garbage objections, and then explain in detail why.

The final piece is your declaration.  Again, the same advice applies as what was given in the previous blog “What Your Discovery Motion Should Look Like.”    However, if the moving papers are requesting sanctions then you must address this full on.  Describe how you “acted with substantial justification” in objecting to the discovery and opposing the motion.  Detail your entire meet and confer efforts (i.e., explained the problems with the interrogatory/request, offered to respond to the discovery if everyone could agree to a protective order, etc.)  Don’t forget to request sanctions yourself for all the time you have spent in trying to come to a resolution and in opposing the motion.

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.