Hand of referee with red card and whistle in the soccer stadium.

Recently I saw the following document response and without even looking at the document request I knew that the response was bad and a motion to compel further responses was going to need to be filed:

Objection, as some or all of these documents are equally or more available to Plaintiffs. Without waiving, responding party states that all responsive, unprivileged, known, and reasonably available documents will be produced by Defendant, if they have not already been produced to Plaintiffs.

First, unless the request is asking the responding part to obtain a public document or a statement from a third party, the objection on the grounds of “Equal Access” is improper. See Weil and Brown California Practice Guide: Civil Procedure Before Trial (TRG 2016) 8:1062-64 citing Bunnel v. Superior Court (1967) 254 CA2d 720, 723-724 and Holguin v. Superior Court (1972) 22 CA3d 812, 821.

Second, by definition, a document request seeks only documents that are in the responding party’s possession, custody or control. (See C.C.P. §2031.010(b), (party may demand any document “in the possession, custody, or control of the party on whom the demand is made”).)  Even if the propounding party has copies of the documents, the propounding party is entitled to inspect documents that are in responding party’s possession, custody or control.

Third, the response that “unprivileged” documents will be produced implies that privileged documents will not be produced and the court would deem the response to be an objection. Thus, the responding party must amend its responses by identifying each privileged document that is not being produced, as detailed in Code of Civil Procedure §2031.240(b).  Alternatively, if no privileged documents exist, then the responding party will need to amend its response to omit the word “unprivileged.”

Fourth, the response that documents will be produced “if they have not already been produced” is evasive. The response should simply state whether they would be produced or not.

A Word of Advice: It is important that you follow up on the deficiencies of a document response as you don’t want to have a document introduced as evidence at trial by your opponent that you never seen before. Make sure that the response is in compliance with C.C.P. 2031.210, 2031.220, 2031.230 and 2031.240 and that you are satisfied that the responding party has conducted a diligent search and reasonable inquiry when collecting the documents for production.

iStock_000008477093SmallI have always been a strong advocate that you should be awarded sanctions if you had to bring a motion to get the relief you were entitled to even if the other side complied prior to the hearing on the motion.  However in the case of Evilsizor v. Sweeney (2014) 230 CA4th 1304, the First District Court of Appeal had an interesting take on the issue.

Continue Reading Should you withdraw your motion if the other side has complied?

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

Umpire.jpg

When a Judge or Discovery Referee makes a comprise in a a discovery dispute–splitting the baby–I cringe. This goes against the philosophy of the Discovery Act and current case law. There are rules in discovery and attorneys are expected to play by those rules. When one side plays by the rules and asks the court to enforce those rules, it becomes disheartening to that party when the Judge or Discovery Referee splits the baby instead of making the tough call.

Recently, I heard a lawyer bemoan the fact that instead of granting the motion to compel further responses to requests for documents documents which he clearly had won, the judge ordered that the responding party to turn over all its declared experts files prior to the declared expert’s deposition instead.  Apparently the judge was persuaded by the opposition’s position that to provide a further response and gather all the responsive documents would take too much time away from their preparation of the impending trial. This order was wrong on so many levels I don’t know where to begin. Continue Reading A Judge Needs to Call Balls and Strikes on Discovery Motions

iStock_000016672124XSmall-1.jpgI recently received an e-mail from a pro-per who asked me

“ 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…

Continue Reading Save Time, Money and Angst — MEET AND CONFER

arguing lawyers.jpgYou are within fifty days of trial and you are in receipt of defendant’s expert witness disclosure.  She has three experts and you have three experts.  All six of them need to be deposed in less than 35 days and you haven’t yet sent out a deposition notice.  You pick up the phone and meet and confer with opposing counsel to select dates.  During the conversation the attorney for the defendant states very adamantly

My expert will not be ready to testify until your expert testifies. Besides you are the plaintiff and you have to go first!  

Heard this before?  I have and there are some significant problems with defense counsel’s position. 

Continue Reading My Experts Go Last!

Referee.jpgNine years ago, in the middle of a Deposition, defense counsel called plaintiff counsel a “Bitch.” Plaintiff counsel immediately filed a motion for a Discovery Referee and I was appointed. The court ordered that I sit in on all the depositions and attend the site inspection. All communication including the scheduling of discovery was to be done through me.

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

Continue Reading When an Apology is a Discovery Response

taking out the trash.jpg

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 Are Your Objections Garbage?