The meet and confer process has failed.   Now you have to decide whether (1) you need to bring a Motion to Compel Further Documents because the documents are an integral part of the defense and/or prosecution of your case, or (2) wait for trial and make a motion in limine to exclude the documents categorically at trial.  Two of the factors you are going to have to consider are how much time it’s going to take to prepare the motion as well as the cost to your client.

Most attorneys underestimate the time and cost in filing a Motion to Compel Further Responses.

Below is an example of how much time a SKELETON Motion to Compel Further Responses to Requests for Production of Documents would take.

NOTICE:          .5

MEMORANDUM OF POINTS AND AUTHORITIES:     3 – 5 hours

A.  Introduction

* Describing what the motion seeks.

B.  Facts of the Case

C.  Procedural History regarding the Discovery in issue

D.  Argument

*  Why these documents are important to your case.
*  Why the objections are garbage.
*  What happened during the meet and confer process.

E.  Request for Sanctions

*  Calculation of your Hourly Rate x Hours Spent on the Motion + Costs.

F.  Conclusion

*  Delineate what you are requesting the court to award you

SEPARATE STATEMENT OF ITEMS IN DISPUTE         1 hour for every 10 requests

A.  Separate Statement of Items in Dispute. CRC, Rule 3.1345

B.  Concise outline of the discovery request and each response in dispute.   Cal Code Civ Proc § 2031.310(b)(3)

ATTORNEY DECLARATION TO SUPPORT OF YOUR MOTION            .5

A.  Authenticating each document attached as an exhibit

B.  Describing why the documents are necessary for your case.

C.  Delineating  the meet and confer process. Describing in detail the amount of attorney time and      expenses in calculating sanctions

PROPOSED ORDER     .5

A.  All relief you are seeking from the court including overruling of the objections and compliance dates.

B.  Sanctions, including how much sanctions, against whom, whom to be paid to and when they are to be paid.

In the majority of cases, the above estimate is not realistic.

These motions can take anywhere from 15 to over 50 hours.  So, before you give your estimate regarding the cost of a motion to compel further responses to your client, consider the following in your calculations:

NOTICE

*  Locating an example of a notice to use as a template and drafting a compliant notice pursuant to CRC, Rule 3.1110.  SEE Cal. Civil Discovery Practice, 4th Ed. (CEB 2019) 15.46.

MEMORANDUM OF POINTS AND AUTHORITIES

*  Are the facts of the case complex enough (and important enough) that the court should be educated to understand the motion in context?

*  Is there a history of discovery abuse that needs to be delineated in the procedural history?

*  Legal research and argument if a proper privilege log was not served with the response.

*  Legal research regarding each of the garbage objections.

*  Are you challenging the assertion of a privilege? What research  will be necessary to outline the boundaries of the privilege to make sure your motion is seeking non-privileged documents?

*  Legal research and argument if requesting an in camera review by the court.

*  Preparing a protective order for the court to put in place in order to resolve objections on the grounds of privacy, trade secret etc.

*  Legal research and argument for the appointment of a discovery referee for an in camera review and/or for all further discovery disputes.

*  A substantive argument regarding sanctions.

SEPARATE STATEMENT OF ITEMS IN DISPUTE

*  Even if you can easily copy  the request and the response this document takes a lot of time.  Expect close to ½ an hour for each request.  (i.e., 10 requests would equal 5 hours.)

*  Each request and response needs to be specifically addressed as to why you need the documents as well as why the objections are garbage.

*  If a protective order is being proposed, argue why the protective order resolves the objection(s) to that request.

*  If you are going to opt for discovery outline pursuant to Cal Code Civ Proc § 2031.310(b)(3), you are going to need to get permission from the court.  That process can include the need to bring an ex parte application to obtain the order.

DECLARATIONS:

*  Tracking down and copying all the documents you need for your declaration.

*  Deciding whether you need declarations and exhibits from your client, witnesses and/or your experts.

*  Making sure your declaration paragraphs and exhibits are accurately reflected in your memorandum of points and authorities.

OTHER PROPOSED ORDERS

*  Proposed Protective Order

*  Proposed Order for the Appointment of a Discovery Referee.

HINT:   Don’t forget the time and cost for reading the opposition, preparing the reply as well as traveling to and appearing in court as that could easily be an additional 10 hours.

Effective January 1, 2019, Code of Civil Procedure Section 2016.080 authorizes the court to conduct an informal discovery conference upon request of a party or on the court’s own motion. The statute reads:

(a) If an informal resolution is not reached by the parties, as described in Section 2016.040, the court may conduct an informal discovery conference upon request by a party or on the court’s own motion for the purpose of discussing discovery matters in dispute between the parties.

Continue Reading If Meet and Confer Fails, Ask for Help

The purpose of the “meet and confer” requirements set forth in C.C.P. §§ 2025.450(b)(2), 2025.480, 2030.300(b), 2031.310(b), 2032.250 and 2033.290 was for the lawyers to revisit their position, and in good faith, discuss a resolution in order to 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, listen, and learn without billing. No longer do lawyers have time for the “two-martini” lunch in order to get input from their colleagues about cases with which they are having trouble. 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 thirty years, many of us had to learn how to litigate by doing and then 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 than in the courtrooms. This is most evident 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

What is a Good Faith Meet and Confer

The court will look at the following relevant factors in determining whether a party has met and conferred in good faith:

  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 than to reach the merits of the case.  See Obregon v. Superior Court (1998) 67 CA4th 424, 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 1431-1439:

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.”

Failure to meet and confer in good faith constitutes “misuse of the discovery process.”  [C.C.P. §2023.010(i)]

Meeting and Conferring with Opposing Counsel

Taking the above factors into consideration, review your requests and determine whether or not the objections are valid.  Once you have determined that you will need supplemental responses to your propounded discovery, call opposing counsel and set up a time to meet in person. Tell them that you will prepare a written response to the objections so you can go through them when you meet. Also, consider offering to prepare a protective order and agreeing to a discovery referee.

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. 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.

Include in your letter the names of potential discovery referee’s whom you would be  willing to stipulate to for the limited purpose of reviewing the category of documents in the request, performing an in camera review and preparing a recommendation to the court.  Or, alternatively, agree to a Discovery Referee to aid the parties in the meet and confer process.

Enclose with  your letter a draft protective order to discuss at the meeting if any objections are as to privacy, trade secrets, etc.

Finally, request a written agreement extending your time to bring a motion to compel further responses. This meet and confer process DOES NOT extend the 45 Day limit within which you must file a motion to compel further responses. [C.C.P. §2031.310(c)]  See Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681 at 683-684 and Sexton v. Superior Court (1997) 58 CA4th 1403, 1409-1410 where the courts have found that the 45-day time limit as “jurisdictional.

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. But if you do have to file that motion to compel further responses make sure you are reasonable and can show that you made every effort to work out a resolution.

NEXT:   If the Meet and Confer Process Fails, Ask for Help.

 In the previous blog, Start Preparing Your Motion Because with These Responses You’re Going to Court, I used the following example as a type of response I see as a Discovery Referee:

Responding party hereby incorporates its general objections as if fully stated herein.  Responding party objects to this request to the extent it seeks information protected from disclosure by the attorney-client privilege and/or work product doctrine, or any other applicable privilege. Responding party objects as it invades their and third parties’ right of privacy. Responding party objects that the request fails to specifically describe each individual item sought or reasonably particularize each category of item sought. Responding party objects that it is unduly burdensome and overbroad.  Responding party objects to this request as it does not seek relevant documents or documents reasonably calculated to the discovery of admissible evidence.  Responding party objects that plaintiff has equal access to these documents.  Responding party objects that the request seeks documents already in plaintiff’s possession custody or control.  Responding party objects to this request as it seeks documents that are not within defendants’ possession, custody, or control.

Boilerplate objections are becoming more and more common in response to each of the document requests.  The above is an example of inappropriate boilerplate objections. In fact, boilerplate general objections are sanctionable in California per Korea Data Systems Co. Ltd. v. Superior Court (1997) 51 Cal.App.4th 1513 and may result in waivers of privilege per Burlington Northern & Santa Fe Ry Co. v. U.S. Dist. Court 408 F.3d 1142, 2005 WL 1175 922 (9th Cir.2005) [trial court affirmed in holding boilerplate objection without identification of documents is not the proper assertion of a privilege.] Continue Reading WHY THESE OBJECTIONS ARE GARBAGE

Have you noticed that you are getting too many objections and very little documents to your document requests?  Have you also noticed that despite months of meet and confers you still don’t have a determination whether or not documents exist; and if they do exist, why they aren’t being produced? Is this scenario more the norm then the exception? Continue Reading Start Preparing Your Motion Because with These Responses You’re Going to Court