About a year ago I received an inquiry from a lawyer stating:

I’m researching whether the defendant can file a motion for a protective order after my motion to compel was already granted—I’m’ trying to find a case that precludes the protective order motion as a matter of law—res judicata perhaps?

This is a procedural issue and one that you need to be familiar with all the ins and outs of the Code of Civil Procedure and the current case law because my answer is  “It depends

Failure to Promptly Bring a Protective Order

In the present scenario, the motion for protective order needs to be filed during the time the response was due and should be heard at the same time as the motion to compel or the motion to compel further responses was heard.

Pursuant to Code of Civil Procedure sections 2030.090(a), 2031.060(a), 2033.080(a) a motion for protective order must be brought promptly and before the 30-day with which to respond to the written discovery, otherwise the objection may be waived.  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1013. Case law also supports this position. In Scottsdale Ins. Co. v. Sup. Ct. (1997) 59 CA4th 263 the court held that the waiver of attorney client privilege occurs by failing to raise the objection in the initial response.  See California Civil Discovery Practice, 4thEdition (CEB 2018).  Thus, a motion for protective order should be denied if it wasn’t file within the 30-days to respond.

However, there is ONE case that granted relief.  In the case of Standish v. Superior Court (1999) 71 CA4th 113 at page 1144, the Second District Court of Appeal ruled “that upon a proper showing a party may—even after it has waived its right to object to the production of documents, and has produced most of the documents requested–seek a protective order restricting the production of documents” SeeWeil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1031.  Careful as this case may be distinguished because it involved trade secrets.

Did the Party File a Motion Seeking Relief from the Waiver of Objections?

A party may seek relief by way of a motion from the waiver of objections to interrogatories and/or a request for production of documents by (1) serving a substantially compliant response and (2) a declaration that the party’s failure to serve a timely response was the result of mistake, inadvertence or excusable neglect.  See C.C.P. sections 2030.290(a) and 2031.300(a).  As with the motion for protective order, the motion for relief of waiver may not be raised in opposition to the motion to compel, and therefore should be made promptly so it can be heard with the motion to compel or motion to compel further responses.

However, requests for admissions are different.   For requests for admissions there is a time constraint as party seeking relief must do the above prior to the hearing on the Motion to Have Admissions be Deemed Admitted.  If a party so complies, then the relief must be granted.  See C.C.P. section 2033.280(a)(1),(2).

Did the party argue for a protective order or relief from the waiver in the opposition papers?

Though it would be procedurally incorrect to argue for a protective order and relief from waiver only in the opposition papers, the issue was before the court and considered.  Thus, any motion for protective order or motion for relief of waiver would be trying to get another bite of the apple with the same facts and arguments.

Motion for reconsideration

Another motion that can be brought is a Motion for Reconsideration pursuant to C.C.P. section 1008(a).  However, the scope of that motion is limited, as it is made after the negative ruling and motion must be:

  • brought before the same judge that made the order;
  • “made within 10 days after service upon the party of notice of entry of the order.”
  • Based on “new or different facts, circumstances of law” than those before the court at the time of the original ruling;
  • Supported by declaration stating that the previous order, by which judge it was made, and the new or different facts, circumstance or law claimed to exist; and
  • Made and decided before entry of judgment. See Weil and Brown,  Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶9:324

The name of the motion is not controlling.  The above requirements apply to any motion that asks the judge to decide the same matter ruled on.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶9:324.1 citing R&B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 CA4th 327, 383.   Therefore, any motion for protective order or motion for relief from waiver from the court’s order granting the motion to compel must follow the requirements for a motion for reconsideration.

Filing a writ or appeal

The final avenue to seek relief is from the Court of Appeal.  See my discovery blog “Obtaining Review of Discovery Rulings.”

A plaintiff counsel writes in asking for advice:

 “Today is July 7th.  Trial is July 31.  Discovery cut-off was July 1 and expert discovery closes on July 16th.  Well, my client sought additional treatment on June 25thwith a neck, back and spine specialist. The results of the visit were provided to me on June 26th and I immediately mailed the results to opposing counsel that day. Now opposing counsel is stating the discovery is after the cutoff and inadmissible and the doctor  can’t testify because expert disclosure has passed.   I’m really worried about whether I will be able to use the evidence and if so, how I will be able to use the evidence?”

Opposing counsel is blowing smoke at this young lawyer.

The facts are that plaintiff is still treating for his injuries and plaintiff counsel immediately provided the medical records to defense counsel five weeks before the start of trial.

Though discovery closes 30 days before trial, both plaintiff and defense counsel should have been proactive so that neither side was prejudiced regarding the new information.  The alternative is plaintiff being barred from using the information, or the defense proceeds to trial without a chance to fully discover the ramifications of this new information.

Upon receipt of the medical records from the new treating physician, the parties should have met and conferred.  The parties should have been willing to do the following:

  • Waive the discovery cut off dates governed by CCP §2024.020(a) so defense counsel can conduct discovery regarding the new treatment;
  • Waive the notice time to take the deposition of the specialist on a mutually agreed upon date;
  • Plaintiff agree to provide an authorization so defendant can to obtain a copy of the medical records from the specialist without the need and time delays of serving a subpoena;
  • Plaintiff agree to be produced for an additional period of time for deposition regarding the diagnosis and treatment by the specialist;
  • Plaintiff agree to submit to an independent medical examination if one has not already been taken and augment their expert witness list if necessary;
  • Defendant agree to allow plaintiff to augment their expert disclosure list to name the specialist;
  • Agree to continue the trial date for 60 or 90 days so the parties can conduct the necessary discovery regarding the new information.

If the parties could not reach such an agreement, then either side should  have brought an ex parte application for an order shortening time to hear any of the following motions:

Motion to Reopen Discovery   See CCP §2024.050;

Motion to Augment Expert Disclosure List   See C.C.P. §2034.610; and/or

Motion to Continue Trial for 60 – 90 days to complete discovery regarding the new information.  See CRC Rule 3.1332

More likely than not, the court would grant these motions as a trial continuance would alleviate defendant’s and plaintiff’s prejudice concerning the new information as the court will not condone an ambush by the plaintiff, nor lying in wait by the defense to move to exclude critical information.

The moral of the story is that, like many other discovery issues that arise,  the purpose of discovery  is to “educate the parties concerning their claims and defenses” and to “avoid surprise” at trial. See Emerson Electric Co. v. Superior Court (1997) 16 C4th 1101, 1107 citing Greyhound Corp v Superior Court (1961) 56 C2d 355, 376] and Fairmont Ins. Co. v Superior Court (2000) 22 C4th 245, 253

 

 

 

 

 

 

 

 

In this blog I have asked that lawyers write in if there was a topic they would like me to address.  I have received many requests over the years and the next couple of blogs will be responding to some of these requests.  Here is the first one.

“I noticed a few things regarding privilege logs. 1) litigators are not sending them. 2) my opposing counsel tends to argue that there is no obligation to prepare a privilege log unless it is demanded by the requesting party and I don’t think that’s right – I think it’s an affirmative duty arising when someone withholds documents under an objection – is that right?”

A party’s ability to request documents from the other side is one of most important tools in any discovery plan.  Depositions are useful but memories can fade, and witnesses’ recollections can be wrong. Interrogatories and requests for admission are responded by the attorney and are usually answered to support a claim or defense.  However, as it has been said over the years, “The document speaks for itself.”  The majority of cases turn on whether or not there are documents, photos or other tangible items, prepared contemporaneously, that support a given position.  This makes not only the document production important, but the response is just as important,  as you will want to nail down whether any documents actually exist that relate to a particular topic of inquiry.

Continue Reading Aren’t I Entitled to a Privilege Log?

Effective January 1, 2013 and subject to certain exceptions, the duration of a witness deposition was limited to seven hours of total testimony. (CCP §2025.290(a).) The limitation brought the California statute consistent with existing federal law, which has a similar seven-hour rule. (See FRCP Rule 30(d)(1))

CCP §2025.290(b) sets forth six circumstances where the seven-hour limit does not apply–by stipulation, expert witnesses, complex cases, employment cases, person most knowledgeable depositions, and a new party to case when the deposition has already concluded.

However, the seven-hour rule is not entirely rigid, and it does not give the court unfettered discretion in shaping its application.

CCP §2025.290 is also consistent with FRCP Rule 30(d)(1) as it states:

The court SHALL allow additional time, beyond any limits, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. [emphasis added]

In Certaineed Corp. v. Superior Court (2014) 222 CA4th 1053, the Second District Court of Appeal found that:

“The court may order extended time for depositions beyond the limits in CCP §2025.290(a), including the 2-day limit in CCP §2025.290(b)(3), and MUST DO SO if additional time is needed to fairly examine the deponent and no other reason exists to limit the deposition.” California Civil Discovery Practice (CEB 2018) [Emphasis added]

To deny a party the right to “fairly examine the deponent” defeats the basic purpose of discovery which is to“educate the parties concerning their claims and defenses” and to “avoid surprise” at trial. See Emerson Electric Co. v. Superior Court (1997) 16 C4th 1101, 1107 citing Greyhound Corp v Superior Court (1961) 56 C2d 355, 376] and Fairmont Ins. Co. v Superior Court (2000) 22 C4th 245, 253

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 2018) ¶8:1 citing Greyhound Corp. v. Superior Court (1961) 55 C.2d. 335, 376.

Serving “[a]ppropriate written interrogatories are one of the means to accomplish the general goals of the discovery process designed to facilitate a fair trial.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 CA4th 377, 389)

“Interrogatories expedite the resolution of lawsuits … [by detecting] sham claims and defenses … [and] may be employed to support a motion for summary judgment or a motion to specify those issues which are without substantial controversy.”  Deyo v. Kilbourne (1978) 84 CA3d 771, 779

Continue Reading Why You Need to Bring that Motion To Compel Further Responses to Interrogatories

In the case of Victalic Company v American Home Assurance Company the First District Court of Appeal made it very clear that denials to Requests for Admissions are inadmissible.   Here is the court’s reasoning starting at page 23 of the published opinion:

Gonsalves v. Li (2015) 232 Cal.App.4th 1406 (Gonsalves) involved an automobile accident. Plaintiff called defendant as an adverse witness and asked about his qualified denials of plaintiff’s RFAs that he was responsible for the accident. And in closing argument, plaintiff emphasized that the denials were evidence defendant refused to take responsibility for plaintiff’s injuries. (Id. at p. 1413.) The jury returned a verdict for plaintiff for $1,208,642.86. (Id. at p. 1411.) Our colleagues in Division Five reversed, holding it was error for the trial court to allow questions about RFAs.

Continue Reading Denials to Requests for Admissions are NOT Admissible

 

Have you ever wondered how the work product doctrine works when you hire a consultant who may or may not become your expert. Trial Attorney Lee Previant, from Los Angeles, wrote this great article titled “Attorney Work Product Doctrine And Experts for Advocate Magazine that explains how it all works.  Enjoy.

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As any litigator is undoubtedly aware, expert witnesses are necessary whether to offer evidence required to meet your burden of proof or to offer evidence to combat attacks on causation.  Likewise, communications with your expert witnesses are necessary.  This includes communications to 1) retain the expert witness, 2) communications providing them with case specific materials so they may formulate their opinions, and 3) communications providing scientific, technical, professional texts, treatises, journals, or similar publications to assist the expert in forming their opinion.  In addition, an attorney may communicate with an expert for the sole purpose of obtaining advisory opinions.

An expert witness is defined as someone who has “special knowledge, skill, experience, training, or education sufficient to qualify him[/her] as an expert on the subject to which his[/her] testimony relates.”  (Evid. Code § 720.)

Continue Reading An Attorney’s Relationship with their Expert and the Work Product Doctrine

I received a comment about one of my blogs saying:

Many young(er) attorneys abuse discovery as a matter of course – as if they have been taught how to be obstructionists at law school. I also think newer attorneys do the scorched earth route to create more billing.  One dope sent me objections that were over 100 pages.

I have written many blogs regarding how to handle discovery abuse by opposing counsel.  These include filing motions to compel further responses, filing motions for protective orders and how to recover sanctions.

Continue Reading DO YOU KNOW WHAT YOUR OBLIGATIONS ARE IN RESPONDING TO WRITTEN DISCOVERY?

Most cases rise and fall on whether there is documentary evidence supporting a claim or defense. Thus, the most important discovery device in a litigator’s  toolbox  is the ability to request documents pursuant to CCP 2031.210 et seq. Unfortunately, most lawyers fail to properly respond and produce documents which leads to the ever so popular Motion to Compel Further Responses and Production of Documents

Patrick Nolan’s article “How the crafty defense lawyer hides things by avoiding the details in requests for production of documents — Using the teeth of the statute to get the most out of RFPs”  gives an eye opening tutorial on how to deal with a response that is not as straightforward as it appears.  Below is his article.

Continue Reading How a Crafty Lawyer Hides Things by Avoiding the Details when Responding to Requests for Production of Documents

The title of this blog is a quote from the most basic tenant of the 2016 Discovery Act found in Code of Civil Procedure Section 2017.010 titled Matters Subject to Discovery which reads:

“Unless otherwise limited by order of the court in accordance with this title, 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. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” [Emphasis added]

The courts and the treatises liberally construe this statute and a party’s right to obtain the identity and location of witnesses.

Continue Reading Discovery May Be Obtained of the Identity and Location of Persons Having Knowledge of Any Discoverable Matter