“ 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.

I have read your articles with interest and respect for some time now; I find them excellent plus.

I have a friend who is acting pro per in a civil case. Suffice it to say she can't afford or get an attorney.

Opposing counsel has made a mockery of discovery by making (putrid) garbage objections to 99% of discovery sent him. He uses every boilerplate objection and has even objected saying some discovery was "unintelligible" when my friend didn't define a name that was the name of the defendants product…

Opposing counsel is clearly abusing the intent of discovery dragging my friend into "Meet and Confer Hell" while knowing that as a pro per, my friend can not get anything more at this point than her costs of filing a Motion to Compel (which she has won) and photocopy costs. On the other hand, and I speak with authority, opposing counsel has created enough work for himself to literally turn a reasonably moderately sized case into a major matter and I would estimate he has made more than $250,000 in fees from his client (no insurance company involved) in 2011.

My point being: There is clearly a wrong here (major discovery abuse and a lack of any good faith) and no remedy.

Am I being naive in thinking something should be done or a remedy created?

 

This is a common problem for pro pers as well as parties who don’t have a lot of money.  It looks hopeless as you are being out muscled by a party who has deep pockets and a lawyer who’s intent is to abuse the discovery process and run up his bills.

So what can you do?  GET THE COURT INVOLVED!!

You need to file a motion to compel further responses requesting a protective order pursuant to C.C.P. §§ 2025.420, 2030.090, 2031.060, and/or 2033.080 and an award of monetary, issue and evidence sanctions.

TELL THE COURT:

1. The facts of the case in detail, including the procedural history of the case.

2. The discovery you are attempting to get.

3. The garbage objections you are receiving.

4. The futility of the meet and confer process.

5. Your good faith responses to opposing party’s discovery.

6. All Motion for Summary Judgment/Summary Adjudication, arbitration, mediation and/or trial dates.

ASK THE COURT TO:

1. Stay all discovery propounded by opposing party until your discovery is complied with.

2. Impose deadlines for discovery responses with a return date to the court to show compliance.

3. Implement a discovery plan and to oversee all future discovery.

4. Rule that all depositions  are to be held at the courthouse with the judge available to rule on all objections.

5. Appoint a Discovery Referee with the opposing party to pay for the vast majority of the referee’s fees. 

6. Award sanctions pursuant to C.C.P. §177.5 (pdf)—up to $1500 in sanctions payable to the court for violation of court order. 

7. Award issue and evidence sanctions.

8. Schedule an early settlement conference.

REMEMBER:  You need to be pro active. You can’t sit back and hope that justice will prevail.

New Attorney? Don’t Get Intimidated by Opposing Counsel

Being a new attorney can be overwhelming, regardless of whether you are a solo or work at a big firm. One way to help ease the transition is finding a mentor to show you the ropes.

Even with a mentor, however, one of challenges for new attorneys is interacting with opposing counsel. A common complaint among new attorneys is how badly they are treated by more experienced opposing counsel. Here are some tips to help you stand your ground and reduce the intimidation factor.

The game within the game

Law school does not teach you about the game within the game—the tricks and mind games that some attorneys utilize during a case. Of course, not every attorney plays games, but you need to be prepared for the ones that do.

Frankly, just knowing that some attorneys play games is a key insight. Some young attorneys blindly believe everything opposing counsel says—which can drastically alter the course of a case if you don’t know any better.

I can think of a long list of things that opposing counsel threatened or promised to do—99% of which never actually happened. At the time, however, those threats caused me to underestimate or re-think my case or strategy—which is exactly what they wanted.

Keep your head on a swivel—and don’t believe the hype.

Stick to the rules

If opposing counsel has missed a deadline, omitted certain discovery documents, or generally seems to manage their case with no regard for the rules (state or federal), dont be afraid to call them out.

The rules are the rules. While certain rules may be treated more like guidelines by some attorneys, you are not bound to share their interpretation. They might be testing you, they might be used to flaunting the rules with no repercussions, or they might not be paying attention.

If something seems amiss, double check the rules, and if necessary, call out opposing counsel. The rules are there for a reason.

Don’t second guess your opinion of the case (or don’t make it obvious)

In the majority of my cases, I represent the Plaintiff. Most of the time, I get a phone call from opposing counsel blabbing on and on about how my case is terrible, I have no idea what I’m doing, etc., etc. My favorite part about these calls is after usually ten minutes of this, I am presented with a “nuisance value” offer to settle the case.

The first couple of times I didn’t immediately dismiss the case, but I did start second guessing certain aspects of my case. In the long run, those initial calls didn’t change the case, but they did cause an initial road bump. Don’t let that happen to you.

When I get those calls now, I let opposing counsel talk as long as they want, thank them for the phone call (and settlement offer), and then get off the phone. I rarely engage in a pseudo summary judgment argument over the phone—that is why we have judges.

If there is something I need to reconsider, I am not going to let opposing counsel know that I have doubts about my case. On the other end of the spectrum, I also tend to refrain from revealing additional information. The bottom line: resist the temptation to engage in a motion hearing over the phone, it rarely turns out well.

IF YOU CANNOT UNDERSTAND MY ARGUMENT AND DECLARE, “it’s Greek to me, you are quoting Shakespeare.  If you claim to be more sinned against than sinning, you are quoting Shakespeare.  If you act more in sorrow than in anger, if your wish is father to the thought, if you lost property has vanished into thin air, you are quoting Shakespeare.  If you have ever refused to budge an inch or suffered from green-eyed jealousy, if you have played fast and loose, if you have been tongue-tied-a tower of strength—hoodwinked or in a pickle, if you have knitted your brows—made a virtue necessitated, insisted on fair play, slept not one wink—stood on ceremony—danced attendance on your lord and mater—laughed yourself into stitches, had short shrift—cold comfort, too much of a good thing, if you have seen better days, or lived in a fools paradise, why, be that as it may, the more fool you, for it is a foregone conclusion that you are as good luck would have it, 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. 

PHILOSOPHY OF DISCOVERY

The overriding philosophy of the Discovery Act is that discovery should be liberally construed in order to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:1, citing Greyhound Corp. v. Sup. Ct. (1961) 56 C2d 355 (pdf). 

Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:71 citing Colonial Life & Accident Insurance Co. v. Sup. Ct. (1982) 31 C3d 785, 790 (pdf). 

“Relevant to the subject matter” is broader than relevancy to the issues which determines admissibility of evidence at trial. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:66 citing Bridgestone-Firestone Inc. v. Sup. Ct. (1992) 7 CA4th 1384, 1392 (pdf). 

Admissibility at trial is not the test for relevancy.  See Davies v. Sup. Ct. (1984) 36 C3d 291, 301 (pdf).  

There is no priority in discovery. C.C.P. §2019.210 (pdf).

Fishing trips are permissible Greyhound Corp. v. Sup. Ct. (1961) 56 C2d 355, 383-385, just be prepared to state what you are fishing for.

The scope of permissible discovery is one of reason, logic and common sense.  Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶ 8:67 citing Lipton v. Sup. Ct. (1996) 48 CA4th 1499, 1611 (pdf)

DISCOVERY PROPOUNDED

The Fourth District Court of Appeal defined “reasonable particularity” in requests for production of documents to mean that they are “reasonably particularized from the standpoint of the party on whom the demand is made.”  Calcor Space Facility, Inc. v. Sup. Ct. (1997) 53 CA4th 216, 222 (pdf).

Any party may obtain discovery ... by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties. C.C.P. §2033.010 (pdf).

 RESPONDING TO DISCOVERY

The code requires that a party must make a reasonable and good faith effort to obtain the information. Regency Health Services, Inc. v. Sup. Ct. (1998) 64 CA4th 1496 (pdf) “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA 3d 771, 782 (pdf). This includes a party’s lawyer Smith v. Sup. Ct. (1961) 189 CA2d 6 (pdf), agents or employees Gordon v. Superior Court (1984) 161 CA 3d 151, 167-168 (pdf), family members Jones v. Sup. Ct. (1981) 119 CA 3d 534, 552 (pdf) and experts.  Sigerseth v. Sup. Ct. (1972) 23 CA 3d 427, 433 (pdf).   See Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2009) ¶ 8:1051-1060 

OBJECTING TO DISCOVERY

“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. Sup. Ct. (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.

“Right of Privacy” “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”  Article I, Section 1 of the California Constitution. 

"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, 723-724 (pdf) or interview independent witnesses Holguin v. Sup Ct. (1972) 22 CA3d 812, 821 (pdf) in order to answer the questions.

Referencing Documents:  It is improper to answer “See Complaint” or “See deposition”. 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 2011) §8:1049 citing Deyo v. Kilbourne (1978) 84 CA 3d 771. The exception to this is C.C.P. §2030.230 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.

MOTIONS

Motions to compel further responses to interrogatories, requests for productions of documents and requests for admissions require that the motion be filed within 45 days. CCP §§ 2030.300(c), 2031.310(c) and 2032.290(c).   Delaying the filing of the motion waives a party’s right to compel further responses. The case of Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681, 685 (pdf) takes the position that the court lacks jurisdiction to order further responses after time has expired. The Second District Court of Appeal upheld this rationale in Sexton v. Superior Court (1987) 58 Cal. App. 4th 1403, 1410 (pdf).

SANCTIONS

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

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 2011) ¶8:1213 citing Caryl Richards, Inc. v. Sup. Ct. (1961) CA2d 300, 303 (pdf).  

In imposing issue and evidence sanctions, the court must tailor the sanction to fit the conduct. McArthur v. Bockman (1989) 208 Cal. App. 3d 1076, 1080-1081 The aggrieved party cannot receive more by way of a sanction then it would have received if it had received the discovery.  Rail Services of America v. State Comp. Insurance Fund (2003) 110 Cal App. 4th 323, 332 (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 2011) ¶8:1241.5 citing Ghanooni v. Super Shuttle of Los Angeles (1993) 20 CA 4th 256, 261 (pdf). 

BE FORWARNED OF A COURT’S IRE

“Twenty-three years ago, the Legislature enacted the Civil Discovery Act of 1986 . . . a comprehensive revision of pretrial discovery statutes, the central precept of which is that civil discovery be essentially self-executing.  More than 10 years ago, Townsend v. Superior Court (1998) 61 CA 4th 1431 (pdf) lamented the all too often interjection of "ego and emotions of counsel and client[s]" into discovery disputes, warning that "[l]ike Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement."  (Townsend at 1436.) Townsend counseled that the "informal resolution" of discovery disputes "entails something more than bickering with [opposing counsel]." (Townsend at 1439) Rather, the statute "requires that there be a serious effort at negotiation and informal resolution." (Townsend at 1438.)” Clement v. Alegre (2009) 177 CA4th 1277 (pdf).

DO YOU HAVE ANY FAVORITE QUOTES YOU WOULD LIKE TO SHARE?

The disdain and hated that can spew from even the most professional of lawyers can be astonishing. At times you wonder where it comes from.

Bombarding one side with hundreds of interrogatories, request for admissions and requests for documents right out of the gate with no rhyme or reason of a discovery plan other than to use Discovery as a weapon.

Opposing counsel being abusive to your client by asking improper, inappropriate and accusatory questions in a mean menacing tone. Thus, making you look ineffective.

Opposing counsel's failure to respond to discovery other than providing garbage objections though the law is quite clear that the discovery requests are appropriate.

The non-offending attorney eventually goes to court and requests a discovery referee and I get appointed. In reviewing the papers, I can usually put the cause of the hostility in one of the following categories:

(1)     The offending attorney has a difficult client and the client expects his hired gun to get his pound of flesh from the other side;

(2)     The offending attorney got caught unprepared and is now using abusive tactics to hide their mistakes;

(3)     It is the strategy of the offending attorney to get you into the gutter because they know how to win there; or, unfortunately,

(4)     All of the above.

Looking at the history of the discovery battle before me, I see the offending attorney being difficult, interjecting improper objections, raising the tone of the conflict and playing a deflective game. Despite the earnest attempts of the non-offending attorney not to engage, he or she eventually ends up fighting the offending lawyer in the gutter throwing insults and accusations in a high volume attempt to stop the madness. By the time the matter reaches the court, the conflict has reached a fevered pitch.  The court ends up throwing up its hands saying “Pox on both of your houses, I am sending you to a Discovery Referee” because all the court see is two very unprofessional attorneys and YOU ARE ONE OF THEM!

This conflict costs your client money in attorney fees, it extends the time of the case and it makes it difficult to settle the case without paying a premium. So what do you do?

Your first priority is to protect your client. Your second priority is to protect your reputation. Neither can be accomplished if you let the discovery conflict spiral out of control. So the answer is to nip the conflict in the bud and be PROACTIVE!

(1) Every communication with the offending attorney needs to be in writing. Don’t go “tit for tat” in the e-mails. WAIT before you hit that send button! Better yet, write a letter on your firm’s stationary and send it as an attachment. That will give you time to cool off.  Catalog every unprofessional, abusive tactic in a factual tone. Hint: Write every communication as if the Judge is going to read it.

(2) Don’t take it on the chin. If the objections are garbage and you are entitled to a response, then file the motion. Start setting a record for issue, evidence and terminating sanctions. Keep filing those motions. It only hurts your client if you don’t obtain the discovery you are entitled to.

(3) If the abuse is happening during a deposition, suspend the deposition and go to court and ask for a discovery referee to sit in on the depositions. In the alternative ask that the depositions be held at the courthouse with the Judge on standby for rulings.

(4) Ask the court for an early settlement conference or suggest mediation to the offending counsel. This may sound counter intuitive, but the conflict may be a symptom of the need to resolve the case.

(5) Ask the court for a discovery referee for all purposes with the request that the offending party be responsible for the referee’s fees due to their abusive behavior.

The Moral of the Story: You are an advocate–Go Advocate!

As I talked about in my first blog "Why Aren't You Using Requests for Admissions", the legislative intent behind requests for admissions is to urge parties to take them seriously. One of the real kickers of this statute is the cost of proof sanctions set out in C.C.P. §2033.420 (pdf). If the responding party is found to have unreasonably denied a request for admission, that party may be ordered to pay the costs and fees incurred by the requesting party to prove the issue at trial. See Garcia v. Hyster Co. (1994) 28 Cal. App. 4th 724, 736 (pdf): Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618, 635-638 (pdf). The court is required to impose the sanction. Again, the word shall is in the statute.

That is all good and well but, really, do you know how to win this motion?  You have heard the horror stories that despite the mandatory language, judges still seem to find a way not to grant this motion.  In fact there is a plethora of case law that carves out exceptions to the rule. Such as (1) when a party has a good faith basis for believing its position to be correct C.C.P. § 2033.420(b)(3), Denver D. Darling, Inc. v. Controlled Environments Construction, Inc. (2001) 89 CA4th 1221, 1239(pdf); (2) the requesting did not have a “direct relationship to one of the central issues in the case” Laabs v. City of Victorville (2008) 163 CA4th 1242, 1276 (pdf); (3) the case settled before had to prove the matters at trial Wagy v Brown (1994) 24 CA 4th 1 (pdf); and (4) responding party either admitted before trial or during trial. Stull v. Sparrow (2001) 92 CA 4th 860 (pdf); Wagy v. Brown (1994), supra. 

They way to win this motion is to set it up from the beginning.  Burlingame attorney Simon Mazzola has been successful in using a preamble in his requests for admissions stating:

Pursuant to Code of Civil Procedure Section 2033.010 (pdf) et seq., [MY CLIENT] hereby requests that [YOUR CLIENT] admit or deny under oath the following Requests for Admissions separately and fully in writing within THIRTY (30) DAYS after service hereof.  If [YOUR CLIENT] cannot admit or deny a request for admission, he must explain why. 

If a Request for Admission cannot be fully answered, answer it to the extent possible.  You are required to make a good faith effort to obtain the information from sources reasonably available to you.  The responses, as required by C.C.P. §2033.220 (pdf) et seq. “must be, as complete and straightforward, as the information available reasonably permits’ . . . and shall admit so much of the matter as is true . . . or as reasonably and clearly qualified by the responding party.”  Weil and Brown, Civil Procedure Before Trial at 8:1323, citing C.C.P. § 2033.220(b)(1). A denial must be unequivocal. C.C.P. § CCP §2033.210 (pdf) et seq. See Holguin v. Sup Ct. (1972) 22 CA3d 812, 820 (pdf), 820 and Smith v. Circle P Ranch Co., Inc.  (1978)  87 C.A.3d 267, 275.

Under C.C.P. §2033.420 (pdf), if the responding party unreasonably denies a request for admission, that party may be ordered to pay the costs and attorneys’ fees incurred by the requesting party in proving that matter at trial after the request for admission was denied. Garcia v. Hyster Co. (1994) 28 Cal. App. 4th 724;  Wimberly v. Derby Cycle Corp. (1997) 56 C.A.4th 618, 635-638 (pdf) The imposition of this sanction is mandatory and the requesting party need not prevail at trial in order to be entitled to the sanction.  A party’s failure to undertake an investigation when the information was at hand does not support the party’s denial of admission and cost-of-proof sanctions were proper.  Smith v. Circle P Ranch Co., Inc.  (1978) 87 C.A.3d 267, 276.  The requesting party need only has to show that he is entitled to “reasonable expenses incurred . . . including reasonable attorneys’ fees” in proving matters unreasonably denied. C.C.P. § 2033.420.

The next step is the use the California Civil Jury Instructions [CCJI] to aid you in drafting your requests.  Remember to keep your RFA’s as simple as possible so there is no room for denial; thus avoiding objections on the ground of compound and conjunctive. Cal.  Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:1287.1

Don’t forget, if the responding party objects, you must file a motion to compel further responses.  See Weil and Brown, Cal.  Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1378; CEB, California Civil Discovery Practice (4th ed. 2010) §9:87 and Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618, 633.

The final step is filing the Motion to Recover Cost of Proof Sanctions.  This motion is brought at the conclusion of a trail or after a motion for summary judgment is granted.  Barnett v. Penske Truck Leasing Co., L.P. (2001) 90 CA4th 494, 498 (pdf).  There is no specification on when or how the motion for expenses of proof should be made.  See CEB, California Civil Discovery Practice (4th ed. 2010) §9:90 and C.C.P. §2033.420.  However, CEB, California Civil Discovery Practice (4th ed. 2010) does provide a form for the motion in Sections 9:123-9.124.

Good luck and let me know if you are successful. 

If opposing counsel refuses to take the motion off calendar, then you must respond to the motion by:

1. Serving a verified response that is in "substantial compliance" with CCP 2033.210 (pdf), 2033.220 (pdf) and 2033.230 (pdf) before the hearing on the motion; and
2. Provide a declaration to the court stating you have provided "substantially compliant " responses and that your failure to timely respond was due to “mistake, inadvertence, or excusable neglect”   See C.C.P. §2030.280(a)(1),(2).

In order to defeat this motion you need a strong declaration. Your declaration should contain:

• Date when the "substantially compliant" responses were served.
• Details of the “mistake, inadvertence, or excusable neglect” that caused your failure to not timely respond.
• All your meet and confer discussions with opposing counsel including your offer to pay monies.

If you do the above, the Motion to have Admissions be Deemed Admitted should be defeated as most judges would rather have the case decided on the merits. However, you will be sanctioned, but the question is how much. If you “fell on the sword” and admitted your “mistake, inadvertence, or excusable neglect” and you tried to meet in good faith to resolve the situation; the sanctions shouldn't be too ugly.

NEXT:   Cost of Proof Sanctions

(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) Each answer shall:

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(2) Deny so much of the matter involved in the request as is untrue.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.

The Discovery Act does not have such strident language for responding to interrogatories or an inspection demand.  This is because Requests for Admissions are not designed to uncover factual information.  Rather, their main purpose is to set issues at rest by compelling admission of things that cannot reasonably be controverted.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1256 citing Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 C3d 256,261.    So when responding to Requests for Admissions, remember to answer as follows:

Admit:     If any portion of the Request for Admission is true then you must admit to that portion of the request.  You are also allowed to have a hybrid response-- admit the part of the request that is true while denying another part.  See C.C.P. §2033.220(b)(1) and Valero v. Andrew Younquist Construction (2002) 103 CA 4th 1264, 1273 (pdf), 1273.  It is unclear whether or not you need to supply facts to make the request true.  However, it is a good idea if it puts the issue to rest.  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1232 - 1234.

Deny:     The responding party should not deny based solely on quibbles of with the wording of the request.  It may be improper to deny a Request for Admission outright if the request is at least partially true.  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1332.  A denial of all or any portion of the request must be unequivocal.  American Federation of State, County & Municipal Employees v. Metropolitan Water District of Southern California (2005) 126 CA4th, 247, 268 (pdf)  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1333-1334.1 give these helpful hints on what is unequivocal:

•  
  • Denial “on advice of counsel” is unequivocal “in spite of the rather weaseling qualification.” Hoguin v. Sup. Ct. (1972) 22 CA 3d 812, 820 (pdf)
  •  “As framed, denied” is also unequivocal. Smith v. Circle P Ranch Co., Inc. (1978) 87 CA3d, 267, 275 (pdf)   Denials following a “boilerplate” statement “without waiving these objections” was unequivocal. American Federation of State, County & Municipal Employees v. Metropolitan Water District of Southern California (2005) 126 CA4th, 247, 268.

Denials on “Information and Belief”:    This is not a proper objection as it is neither “straight     forward” and complete nor is it one of the options listed C.C.P. §2033.220. Also, this is in essence a response claiming “inability to admit or deny” for lack of sufficient information which has additional requirements as discussed above. 

Unlike interrogatories and or inspection demands, failure to properly respond to Request for Admissions in a timely matter can have great repercussions for you and your client.   

FAILURE TO RESPOND

All objections are waived. However, responding party may seek relief from the waiver similar to the way you can do it for interrogatories and inspection demands.  C.C.P. §2030.280(a) (pdf)

Motion for Admissions to be Deemed Admitted may be filed pursuant to C.C.P. §2030.280(b) (pdf).  The statute states “the court shall make this order” unless proposed responses” in substantial compliance with C.C.P. §2033.220 are filed before the hearing.  However, even though you filed delayed responses, you will be sanctioned because sanctions are MANDATORY pursuant to the code if your tardy responses came after the motion was filed. C.C.P. §2030.280(c) (pdf)

RESPOND BUT EITHER NOT TIMELY AND/OR NOT VERIFIED.  

Untimely or unsworn responses to request for admissions are tantamount to no response at all.  Zorro, Inc. Co. V. Great Pacific Securities Corp. (1977) 69 CA3d 90 7 (pdf)  

Motion for Admissions to be Deemed Admitted also can be brought. C.C.P. §2030.280(b) (pdf)

FAILURE TO MAKE A REASONABLE INVESTIGATION 

The propounding party may bring a Motion to Compel Further Responses  or bring a Motion for Admissions to be Deemed Admitted if the answering party has not made a reasonable inquiry or has access to “readily available” information that would enable to admit or deny the matter.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1348

Alternatively, costs may be awarded after trial against a party for failure to inform oneself before answering C.C.P. Section 2033.420(a).  The court may find there was no “good reason” for the failure to admit [Smith v. Circle P. Ranch Co., Inc. (1978) 87 CA3d 267–proof showing that responding party failed to investigate, when the means of obtaining the information were at hand, supports finding there were no “good reasons” for its denial; hence cost of proof sanctions were justified.] Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶ 8:1348

 FAILURE TO ADMIT

 If it is found that you have unreasonably denied a Request for Admission, you may be ordered to pay attorney’s fees and costs incurred by the propounding party in proving the matter.  C.C.P. §2033.420(b) (pdf).  This can occur either after a motion for summary judgment or trial.  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1404 citing Barnett v. Penske Truck Leasing (2001) 90 CA4th 494, 497-499 Remember, that the cost of proof sanction is designed to compensate for unnecessary having to prove matters that should have been admitted.  Thus, cost of proof sanctions can be awarded even if the propounding party lost the case.  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1405 citing Smith v. Circle P. Ranch Co., Inc. (1978) 87 CA3d 267, 276.

Also, denying a matter that should have been admitted in a sworn response might also subject you to a criminal prosecution for perjury.  See CEB Section 9:53 citing Hoguin v. Sup. Ct.  (1972) 22 CA 3d 812, 820. 

 Hint:  Take the time and make the effort in responding to requests for admissions as your answers may come back and bite you if you don’t.

Special Interrogatory No. 1 requested a description of "all economic damages you have sustained . . . " Plaintiffs objected on the grounds of "vague and ambiguous" because defendant hadn’t specifically referred to Civil Code Section 1431.2(b)(1), which defines "economic damages."

Special Interrogatory No. 2 asked "Please state the amount of such damages identified in Interrogatory No. 1."  Plaintiffs objected on the grounds that the special interrogatory was not complete in itself and because he has 30 days to answer No. 1 so he should have another 30 days more to answer Interrogatory No. 2.             

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. 

The First District Court of Appeal had no sympathy for plaintiffs appeal stating in its opening discussion:         

Twenty-three years ago, the Legislature enacted the Civil Discovery Act of 1986 . . .  a comprehensive revision of pretrial discovery statutes, the central precept of which is that civil discovery be essentially self-executing.  More than 10 years ago, Townsend v. Superior Court(1998) 61 CA 4th 1431 (pdf) lamented the all too often interjection of "ego and emotions of counsel and client[s]" into discovery disputes, warning that "[l]ike Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement."  (Townsend at 1436.) Townsend counseled that the "informal resolution" of discovery disputes "entails something more than bickering with [opposing counsel]." (Townsend at 1439) Rather, the statute "requires that there be a serious effort at negotiation and informal resolution." (Townsend. 1438.)

This case illustrates once again the truth of Townsend's observations, as well as highlighting the lengths to which some counsel and clients will go to avoid providing discovery(in this case by responding to straightforward interrogatories with nit-picking and meritless objections), resulting in delaying proceedings, impeding the self-executing operation of discovery, and wasting the time of the court, the discovery referee, the opposing party, and his counsel.  [Emphasis added]

The First District Court of Appeal affirmed the Discovery Referee’s order awarding sanctions and gave the following admonishment:

...we feel compelled to observe that resort to the courts easily could have been avoided here had both parties actually taken to heart Justice Stone’s admonitions in Townsend ‘the statute requires that there be a serious effort at negotiation and informal resolution (Townsend at 1438) Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that [a]rgument is not the same as informal resolution’ (id at p. 14370; and that 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." (Townsend at 1439) [Emphasis added]

In the year since Clement v. Alegre was published it has been cited in two unpublished Appellate Court decisions, six Code of Civil Procedure annotations, seven different treatises and three appellate briefs.  This is one case you should keep in your arsenal when you are requesting sanctions.       

I thank Mike Liberty for forwarding me this case. Please forward me any other discovery cases or issues that you would like to be discussed.

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!!

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”?

Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.             

However, this definition isn’t exactly helpful either.  Unfortunately, there is no bright line test to determine what is relevant.  Instead you must rely on numerous cases that bounce you from flipper to flipper like a pinball to get a sense as to what relevancy means for Discovery. 

The overriding philosophy of the Discovery Act is that discovery should be liberally construed in order to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf) at 391.  Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:71 citing Colonial Life & Accident Insurance Co. v. Superior Court (1982) 31 C3d 785,790 

“Relevant to the subject matter” is broader than relevancy to the issues which determines admissibility of evidence at trial. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:66 citing Bridgestone-Firestone Inc. v. Sup. Ct. (1992) 7 CA4th 1384 (pdf),1392  In fact, admissibility at trial is not the test.  See Davies v. Superior Court (1984) 36 C3d 291 (pdf),301.  You may discover heresay (Smith v. Superior Court (1961) 189 CA2d 6 (pdf),11 or inadmissible opinions and conclusions (Greyhound Corp. v. Superior Court, Supra at 391).   You may also discover irrelevant matters so long as their revelation may lead to the discovery of admissible evidence. Dodge, Warren & Peters Insurance Services, Inc. v. Riley (2003) 105 CA4th 1414 (pdf).  Remember that you are not limited to the pleadings as the pleadings can always be amended when you discover new facts or causes of action. Anti-Defamation League of B’nai B’rith v. Superior Court (1998) 67 CA4th 1072 (pdf).  The phrase “subject matter involved in the pending action has been defined to include not only the acts that constitute the cause of action, but also circumstances and physical facts which the action arises, including the property, contract, or other things in dispute.   See CEB California Civil Discovery Practice (2010) 4^th Ed 1:37 citing Darbee v. Superior Court (1962) 208 CA 2d 680 (pdf),688.  However, Weil and Brown said it best: “the scope of permissible discovery is one of reason, logic and common sense.”See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:67 

Hint: If you can articulate why you think this information might lead to the discovery of admissible evidence then you should be able to discover it. 

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.

With the courts’ having budgetary problems and staff shortages, it is in your best interests to make it real clear to the court (1) what has happened; (2) what you want the court to do; and (3)  why you are entitled to the discovery and sanctions in a succinct fashion.  

Yet, you still may be unsure as to what the meat and potatoes of the motion should look like.   After two years in the law and motion department in Alameda County Superior Court and sixteen years as a private Discovery Referee, I can tell you what I like and you can take whatever pearls and nuggets you find from there.                                            

Meet and Confer Letter:  

1. This is a very important document.  It sets the tone of your dispute with opposing counsel so don’t be hostile.  Remember this letter is going to be an exhibit to your motion and could make or break your request for sanctions if the court finds that you have not been professional.
2. List every interrogatory, request and/or deposition question separately and explain why the objections are garbage and why you are entitled to discover the information. You can later take your arguments in this letter and drop it into your Separate Statement of Items in Dispute (pdf)saving you much needed time. 

 Notice:

1. The Notice is not wasted space.  The notice is to tell the court and opposing party not only the name, date, time and location of the motion, but the “nature of the order sought” as well.  So make sure you state the exact remedy you’re seeking in detail.  Also, make sure to list the nature and tile of all documents to be attached.
2.  If you are seeking sanctions it must be in the Notice.
3. List the nature and title of all documents that will be attached (i.e., Memorandum of Points and authorities, declarations, etc.)  
4. Make sure you comply with CRC 3.1110 (pdf).

 Points and Authorities

1. Give a good explanation of the facts of the case.  The relevant scope of your discovery depends on these facts.  Don’t assume the court remembers your case as they handle anywhere from 75 to 100 cases a week.
2. Provide a procedural history of the discovery motion in a time line laid out like the one below:  
   • 6/1/10 Served interrogatories via mail (Exhibit A)
   • 6/28/10 Counsel asked for an extension via telephone call (Declaration)
   • 7/30/10 Received responses full of objections (Exhibit B)
   • 8/5/10 Meet and confer letter sent (Exhibit C)
   • 8/25/10 Response to meet and confer letter (Exhibit D)
3. State your arguments why you are entitled to your discovery.  Categorize your arguments (i.e., “Special Interrogatories #1, 7, 15 are asking for information regarding . . .”)  Apply the facts and the law accurately.  Point out the obligation to respond in good faith.  Point out the garbage objections.  Point out that the failure to provide proper responses has delayed your case. If the motion requires a Separate Statement of Items in Dispute (pdf)as required by CRC 3.1345 (pdf), then make specific arguments to the specific interrogatories, requests or deposition questions in that document.  
4. State your request for sanctions in detail.
5. Detail the exact relief you are requesting: (i.e., “Plaintiff to serve verified responses to interrogatories 1, 2, 3, 4 by 11/1/2010 and attorneys’ fees in the amount of $2200 and costs in the amount of $40.”) 
6. Make sure you comply with CRC 3.1113 (pdf). 

 Separate Statement of Items in Dispute

1. This is the most important document of your motion and the first document that a court will rely on.  Do your real argument here.  Be detailed in the law as to why the objections are garbage.  Apply the facts of your case to show why the information you are seeking is discoverable. 
2. Make sure you comply with CRC 3.1345 (pdf)

Declaration:

1. Authenticate all your exhibits. 
2. Describe your meet and confer with opposing counsel.
3. If there is a request for sanctions, state your hourly rate.  Outline in detail the time spent on the motion and any future time you anticipate spending.  Calculate the attorneys’ fees and add the costs.

 Proposed Order:

1. Have the order state which interrogatory, request and/or deposition question have been granted and the date line as to when that verified response is to be served or the deposition needs to take place by  (i.e., “Verified answers to Special Interrogatories, Set #1, #1, 2, 5, 7, 13 are to be served no later than ____.”).  This allows the court to strike the numbered interrogatory, request and/or deposition question that has been denied and to put in their own compliance date. 
2. Do the same thing for sanctions.  List the award of attorneys’ fees and the award for costs.  State who the award is against by name. 

 Other Helpful Hints:

1. Do not go over the 15 page limit without obtaining a court order.  CRC 3.1113 (pdf)(e)
2. Do not use smaller fonts. CRC 2.104 (pdf) and CRC 2.105 (pdf)
3. Though CRC 2.08 (pdf) allows for 1.5 line spacing, double space is preferred.
4. Understand the procedural rules for Judicial Notice and their effect on your motion.  See   Ev. C §451 (pdf), Ev. C §452 (pdf), CRC 3.1113 (pdf)(l). 
5. You must do a table of contents and table of authorities if the motion is 10 pages or over. CRC 3.1113 (pdf)(f)   However, many judges appreciate a table of contents in any motion.
6. If you are bringing a motion to compel answers to special interrogatories or requests for admissions that are over the initial 35 allowed, then make sure and attach your “Declaration of Necessity.” 
7. If a department wants courtesy copies, make sure you get a full set to the department in a timely fashion.
8. Most importantly PROTECT YOUR REPUTATION.  Be accurate in your citation of the facts as well as the law.  Do not overreach.  Do not try and be clever.  Do not show disrespect to opposing counsel or their client.  The research staff as well as the judges will remember you.     

Next:   GAME ON--Opposing the Motion to Compel.               

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.  

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.

"Vague, ambiguous, overbroad, burdensome, oppressive, not likely to lead to admissible evidence and the information is equally accessible to the defendant.  Plaintiff further objects on the grounds of attorney client privilege and the work product doctrine.  See Nacht & Lewis Architect, Inc. v. Superior Court (1996) 47 CA4th 214 (pdf). 

Does this sound all too familiar?  The frustration level is high with attorneys as it will take at a minimum 121 days to get basic information if you have to file a motion to compel further responses.  Meanwhile the court is scheduling a trial date and your discovery train hasn't even left the station. 

The purpose of discovery is to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary.  Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2009) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961).  Unfortunately, now it appears the call of the wild is “Let the games begin” as the dreaded process unfolds. 

(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.

The code requires that a party must make a reasonable and good faith effort to obtain the information. Regency Health Services, Inc. v. Superior Court (1998) 64 CA4th1496 (pdf)“A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA3d 771,782. This includes a party’s lawyer Smith v. Sup. Ct (Alfred) (1961) 189 CA 2d 6, agents or employees Gordon v. Sup. Ct. (U.Z.MFG.Co) (1984) 161 CA 3d 15,167-168, family members Jones v. Superior Court (Benny) (1981) 119 CA 3d 534, 552 and experts who have been retained by a party and designated as a trial witness.  Sigerseth v. Superior Court(1972) 23 CA 3d 427,433.   See Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2009) ¶ 8:1051-1060  This means that you can't just pawn off the responses to your client or spend an hour and dictate off the top of your head and then answer "inability to respond."  See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390   The statute and the case law make it very clear that a party and the attorney must be proactive in obtaining the information to respond to the interrogatories.  

Discovery motions are by no means the Courts' favorite motions to hear and, unfortunately, they have seen the above interrogatory response too many times.  So don't be surprised if you get sanctioned for providing false or evasive answers.  See CCP §2030.300 

 Next:  Are Your Responses Garbage?