iStock_000012781059_SmallUnlike Federal Rule Civil Procedure 26(e)(1) – (2), California law does not impose a continuing duty on a party to supplement their interrogatory or document responses.  Biles v. Exxon Mobil Corp. (2004) 124 CA 4th 1315.  Instead, the California Discovery Act has two statutes, C.C.P. §2030.070 and C.C.P. § 2031.050, that allow the propounding party to ask for updated information “bearing on answers already made” and “later acquired or discovered documents, tangible things, land or other property.”

Continue Reading Are You Following Up on Your Opponent’s Discovery Responses?

iStock_000020319155_Full

At the 22nd Annual West Coast Casualty Seminar, Plaintiff counsel Michael Kennedy, General Contractor Counsel Matthew Hawk, Subcontractor Counsel Brian Sanders, Claims Manager James Rzpecki and I presented a new protocol for how to litigate construction defect cases. This new protocol is in compliance with the Code of Civil Procedure as well as the current case law.  But, more importantly these new Case Management Orders address the concerns that the parties have with the current process and provides them with admissible evidence in order to adequately evaluate their case and  be prepared to have a meaningful mediation within six months of the litigation. Continue Reading WHAT IS WRONG WITH THE CURRENT CMO PROCESS IN CONSTRUCTION LITIGATION? And yes, there is a better way!

Overwhelmed Office Worker

Somewhere in the back of your mind you are aware that discovery and Motions for Summary Judgment deadlines are looming. Yet, you really don’t pay attention to them until they are upon us usually around day 45 when you start trying to schedule experts. That is when you realize there are not enough hours in the day and days in the week. Unless you have a case that is a simple slip and fall or a fender bender, the last 100 days before trial can be daunting. Throw in a Motion for Summary Judgment or Summary Adjudication into the mix and you’re swamped. Then there is the ultimate question you ask yourself, “When am I going to find time to prepare for trial.”

The Code of Civil Procedure timeline regarding deadlines for expert disclosure, close of discovery and the last day discovery motions can be heard is demonstrated below.  Seeing it scheduled in black and white is kind of scary. Continue Reading Discovery Plan Part 4 — The Year Before Trial

handshake 2.jpgIn many cases mediation is the most cost-efficient and effective method of resolving a case. Often, litigants can save a lot of money and time when mediation is held after first tier discovery has been completed, once the core facts are determined that circumscribe the dispute. In order to facilitate early resolution many courts have implemented mediation programs and asked mediators to volunteer their time. Unfortunately, many mediators are becoming discouraged with these programs because many times the parties are not prepared.

Speaking to a number of Bay Area mediators who participate in the court ordered mediation panels, they have uniformly identified that the majority of the court ordered mediation cases are breach of contract and personal injury cases.

It was a consensus that, whether the information is obtained through investigation, informal exchange of information or formal discovery, parties need to know the absolute basics of their case so that they can intelligently mediate.  Mediation is not the time to expect an opponent to “educate” you of the basic understanding of your case.   This may seem to be obvious, but in hearing the stories from the mediators it was surprising on how unprepared many parties are.  Continue Reading DISCOVERY PLAN PART 3–Are You Ready for Mediation?

iStock_000019696840XSmall copy.jpg

Last week I received a phone call from an attorney asking what is the authority that says a party has the right to conduct discovery.  I responded, “The Discovery Act!”  Counsel stated that they needed more because a special master in their construction defect case refused to allow them to serve discovery and was demanding authority to prove that they had such a right.  I thought it was such a basic concept in civil litigation that I was amazed that it even was an issue.

I went to the discovery treatises in order to provide the attorney with authority.  I reviewed Weil and Brown California Practice Guide Civil Procedure Before Trial (TRG 2013), California Civil Discovery (Hogan and Weber 2013) California Discovery Citations (TRG 2013) and California Civil Discovery Practice (CEB 2013).  The CEB treatise had the best discussion regarding a party’s right to discovery in a civil action.  The following is an excerpt from the book: Continue Reading You Have The Right To Conduct Discovery!!

iStock_000000215562XSmall.jpgLast week I received the following e-mail from one of my readers:

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? Continue Reading Am I Naïve to Think Something Should Be Done?

trash-in-the-gutter-thumb-275x182-12824.jpg

Growing up in an Italian household, our dinners consisted of salad, pasta, wine and an argument. Afterwards we all went out for ice cream with no thoughts of the argument that took place at the dinner table. That is because we thought of arguments as a sport and there was no reason to hold any grudges.  However, when I became a lawyer I was surprised to find that lawyers did hold grudges despite the fact that law by its nature is an adversarial process and we are professional arguers.

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.

Continue Reading Will You Join Me in the Gutter?

Lawyer with Sword.jpgRequests for admissions may be used to (1) establish the truth of specified facts, (2) admit a legal conclusion, (3) determine a party’s opinion relating to a fact, (4) settle a matter in controversy, and  (5) admit the genuineness of documents.  See C.C.P. §2033.010 (pdf); Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶¶8:1288 – 8:1301.2; CEB California Civil Discovery Practice 4th Edition §§ 9:17 – 9:20.  However that is all good and dandy, but how to write a request for admission in order to obtain effective evidence or to set up a cost of proof sanction is difficult.

C.C.P. §2033.060 (pdf)  sets forth the basic tenants as to how a request for admission must be drafted:

  • Each request must be numbered consecutively.  C.C.P. §2033.060(a)
  • The first paragraph immediately shall state he identity of the party requesting the admissions, the set number, and the identity of the responding party.  C.C.P. §2033.060(b)
  • Each request shall be “separately set forth.”  C.C.P. § 2033.060(c)
  • Each request shall be “full and complete in and of itself” and there shall be no preface or instructions.  C.C.P. §2033.060(d)
  • No carry over definitions.  C.C.P. §2033.060(e)
  • No subparts or “compound, conjunctive or disjunctive” requests.   C.C.P. §2033.060(f)
  • If you are requesting an admission of the genuineness of documents, then they must be attached.  C.C.P. §2033.060(g)

The discovery treatises also give some helpful advice.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), §8:1287.1 states:

Keep your RFA’s as simple as possible so there is no room for denial!  This will avoid objections on the ground of ‘compound and conjunctive.

Keep in mind that any admission obtained will probably be construed narrowly.  So, make sure there is no room for quibbling as to what was admitted!

CEB, California Civil Discovery Practice (4th ed. 2010) §9:17 advises that because the court has broad discretion in determining admissibility and relevance of evidence and scope and effect of an admission the

. . . RFA’s must be clear concise and unambiguous.  See Fredericks v. Kontos Indus., Inc. (1987) 189 CA 3d 272, 277 (pdf) (if admission is susceptible to more than one meaning, trial court must exercise its discretion to determine scope and effect of admission ‘so that it accurately reflects what facts are admitted in the light of other evidence’.  Trial courts may consider parol evidence that explains an admission but cannot use parol evidence to contradict the plain meaning of a response to an RFA; if a response to an RFA is unambiguous, the matter admitted is conclusively established.  Monroy v. City of Los Angeles (2008) 164 CA4th 248, 260 (pdf)

However, the best advice I was ever given was when I was admonished by a Judge.  During a Case Management Conference the Judge asked me what were the jury instructions I was going to use at trial.  I responded “Your Honor we don’t even have a trial date yet.”  The Judge replied “Then how do you know what discovery you need to prove your case?”   I went back to my office and whined to our seasoned trial attorney.  He had no sympathy for me and said “The Judge is right. Go look at the jury instructions and figure out your case.”  With my tail between my legs I went to the library and looked at jury instructions for the first time.  They were amazing.  They were one page road maps as to what I had to prove.  Right then and there I started using requests for admissions.

As an example, using California Jury Instruction 1201 Titled Strict Liability—Manufacturing Defect—Essential Factual Elements (pdf), I would write my requests as follows:

Request # 1:    Admit that [name of defendant] [manufactured/ distributed/ sold] the [product].

Request #2:     Admit that the [product] contained a manufacturing defect when it left [name of  defendant]’s possession.

Request #3:     Admit that [name of plaintiff] was harmed while using the [product] in a reasonably foreseeable way. 

Request #4:     Admit that the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm.

I would then serve these Requests for Admissions with Form Interrogatory #17.1 and a Request for Production of Documents for “all documents listed in your answers to Form Interrogatory 17.1(d).”    The foundation of my discovery plan was now set and I was in a position to receive effective evidence or, in the alternative, cost of proof sanctions. I would then serve these Requests for Admissions with Form Interrogatory #17.1 and a Request for Production of Documents for “all documents listed in your answers to Form Interrogatory 17.1(d).”    The foundation of my discovery plan was now set and I was in a position to receive effective evidence or, in the alternative, cost of proof sanctions.

Chess Game.jpgIf you are like most lawyers, you are using the typical discovery devices to gather up all your information–form interrogatories, special interrogatories, requests for production of documents, and of course the deposition schedule from Hell.  However, requests for admissions are rarely in a party’s discovery plan.  I suggest you take a closer look at C.C.P. §2033.010 (pdf) et seq.  Requests for admissions are wonderful, tricky little discovery devices that really help you set up your case.  Let me explain why.

Continue Reading Why Aren’t You Using Requests for Admissions