The Onglyza Product Cases, A165387 decided on April 19, 2023 by the First District Court of Appeal is a case to be aware of.  

The case involved 13 California state cases coordinated under a Judicial Council Coordination proceeding (JCCP) regarding the drug of Onglyza and Kombiglyze which contained the active ingredient saxagliptin a medicine for type 2 diabetes. Plaintiffs’ alleged that they were injured as the active ingredient can cause heart failure.  The trial court ordered the parties to conduct discovery in phases.  The first phase covered percipient and expert discovery on the issue of general causation, noting that the litigation would then proceed as to other issues only if plaintiffs were able to show that the defendant’s drugs caused the injuries alleged.  Following expert discovery, the defendants moved to exclude Plaintiffs’ causation expert, a Dr. Goyal.  Defendants’ claimed in a Daubert/Sargon hearing that Dr. Goyal was either unqualified to offer his proposed opinions, or that the basis of the opinions were incomplete and didn’t support causation.  

Defendants moved for Summary Judgment on the ground that, without any expert testimony on general causation, plaintiffs were unable to establish an essential element of their claims and defendants were therefore entitled to judgment.   Plaintiff moved to allow the designation of a replacement expert for Dr. Goyal, and to extend time to oppose the motion.  The trial court denied plaintiffs’ motions to extend the discovery deadlines allowing plaintiffs to augment their witness list and granted defendants’ motion for Summary Judgment. Plaintiff appealed.  

The Court of Appeal’s decision goes into great detail as to whether there was an abuse of discretion in excluding the expert which it found there wasn’t. However, it was the final paragraph of the decision that caught my eye which states:

“Lastly, we review for abuse of discretion the trial court’s denial of plaintiffs’ request to enlarge discovery deadlines in order to designate a new expert. (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 531.) We find none here, as plaintiffs were afforded ample time during the first phase of discovery to designate general causation experts and to conduct expert discovery. Plaintiffs designated Dr. Goyal as their only expert to opine that saxagliptin can cause heart failure and sought to identify a new expert only after Dr. Goyal was excluded. Although the court’s decision to exclude Dr. Goyal may have been unexpected to plaintiffs, they made the strategic decision to identify only one expert in this area, despite knowing how crucial it was to prevail on the issue of general causation. The trial court did not abuse its discretion in concluding that allowing plaintiffs to designate a new expert would prejudice defendants given the amount of time and resources needed to conduct additional expert discovery and likely another round of Daubert/Sargon briefing and hearings.”

This case is unique in that it was a phased trial and discovery involving both percipient and expert witnesses on the issue of causation.  The court also implies that substantial amount of time and effort had been expended by the parties and the court regarding the expert motions and re-litigating those issues because plaintiff put all his “eggs in Dr Goyal’s basket” was a tactical decision, making it reasonable to hold plaintiffs to their litigation decisions.  However, beware that a trial court may not limit this decision to only complex cases.

After reviewing the 2023 discovery statutes, there have been changes to the following statutes:

The most significant change in the 2023 discovery statutes is the repealing of C.C.P. 2016.080 Informal Discovery Conference. See discovery blog titled “If Meet and Confer fails, Ask for Help.”  Also, make sure to check your local rules and determine if your court will still use informal discovery conferences.

C.C.P. §2025.310        Deposition via remote means; Who must appear in person; Procedure

Added the second sentence to paragraph (b) which states: 

If a party or attorney of record elects to be physically present at the location of the deponent, all physically present participants in the deposition shall comply with local health and safety ordinances, rules, and orders.

C.C.P. §2029.200        Definitions

Added paragraph (b) which states: 

“Foreign penal civil action” means a civil action authorized by the law of a state other than this state in which the sole purpose is to punish an offense against the public justice of that state.

Redesignated former (b) through (e) as (c) through (f).

C.C.P. §2029.300        Issuance of subpoena by clerk of court

Added paragraph (e) which reads:

A subpoena shall not be issued if the submitted foreign subpoena relates to a foreign penal civil action and would require disclosure of information related to sensitive services. For purposes of this subdivision, “sensitive services” has the same meaning as defined in Section 791.02 of the Insurance Code.

C.C.P. §2029.350        Issuance of subpoena by local counsel

Added paragraph (b) which states:

(1) Notwithstanding subdivision (a), an authorized attorney shall not issue a subpoena pursuant to subdivision (a) if the foreign subpoena is based on a violation of another state’s laws that interfere with a person’s right to allow a child to receive gender-affirming health care or gender-affirming mental health care.

(2) For the purpose of this subdivision, “gender-affirming health care” and “gender-affirming mental health care” shall have the same meaning as provided in Section 16010.2 of the Welfare and Institutions Code.

Added paragraph (c) which reads

Notwithstanding subdivision (a), an attorney shall not issue a subpoena under this article based on a foreign subpoena that relates to a foreign penal civil action and that would require disclosure of information related to sensitive services. For purposes of this subdivision, “sensitive services” has the same meaning as defined in Section 791.02 of the Insurance Code.

Redesignated former paragraph (b) as (d).

My “California Civil Discovery—Charts for the Everyday Litigator” has been updated with the new changes.  

On October 20, 2022, the Second District Court of Appeal ruled in City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 CA5th 466 found that a party cannot just rely solely on Code of Civil Procedure §2023.010 in bringing a motion for discovery sanctions. Instead, a party must bring the motion for sanctions based on the abuse in relation to a specific discovery device and its statute for the imposition of sanctions. Those statutes for protective orders and motions to compel are  Code of Civil Procedure §2025.410, §2025.420, §2025.430 and §2025.440 for depositions, §2030.090, §2030.290 and §2030.300 for interrogatories, §2031.060, §2031.300 and §2031.310 for requests for production, §2032.030, §2032.240, §2032.250, §2032.410. §2032.420 and §2032.620 for independent medical examinations, §2033.080, §2033.270 and §2033.290 for requests for admissions and §2034.250 and §2034.300 for experts. Otherwise, the award of sanctions is improper.

The facts of the case involved defendant PricewaterhouseCoopers bringing a motion to recover attorney fees and costs for the Plaintiff City of Los Angeles’ misuse of the discovery process.  The motion was brought post-trial and only relied on C.C.P. §2023.010. The Defendant sought no other relief. The trial court awarded sanctions against the City of Los Angeles in the amount of $2,500,000 based on a history of abuse by the City and the totality of the circumstances. The City of Los Angeles appealed. The Court of Appeal reversed, stating:

“Section 2023.010 describes general categories of discovery misconduct but does not contain any language that authorizes the court to impose the conduct listed… Instead, each of the categories of misconduct listed in section 2023.010 are managed through the procedures set forth in the chapters governing the discovery methods, as well as the other provisions of the Discovery Act that regulate and sanction misconduct…Section 2023.030 describes the types of sanctions available under the Discovery Act when another provision authorizes a particular sanction. Section 2023.030 does not independently authorize the court to impose sanctions for discovery misconduct.”  [501-503] [emphasis added]

The court stated that trial courts have inherent authority to impose non-monetary sanctions that are necessary to remedy misconduct and ensure a fair trial but trial courts may award attorney fees as a sanction for misconduct only when authorized by statute or an agreement of the parties. Trial courts are prohibited “from using fee awards to punish misconduct unless the Legislature, or the parties, authorized the court to impose fees as a sanction.” [510] 

The Court of Appeal found that the record supporting the amount of attorneys’ fees awarded for the underlying discovery abuse insufficient and constituted an abuse of discretion. This is because the motion was based on C.C.P. §2023.010 – not one of the six discovery devices sanction statutes – and it included expenses that appeared unrelated to a specific discovery abuse.  

The matter was remanded for the trial court to enter a new and different order on the issue of monetary sanctions based on discovery provisions authorizing the imposition of sanctions. 

The California Supreme Court granted the petition for review on January 25, 2023. The case can be cited, as the Supreme Court denied the request for depubliction.  

On January 1, 2023, fellow San Francisco Superior Court Pro Tem Discovery Judge, Douglas Robbins, published “The California Discovery Manual 2023“, which is full of helpful “Practice Notes.” One such practice note titled “Responding to Refusals to Answer” provides a strategy when a deponent refuses to answer the question posed due to the instruction by their attorney not to answer. I hope you find it as helpful as I did.

“A common area of abuse occurs when attorneys instruct a witness to not answer a deposition question. Instructions to refuse to answer should occur only in response to questions implicating a privilege or right such as the attorney-client privilege, the spousal/marital privileges, the right to refrain from self-incrimination, and the like. All other objections, say for relevance, for hearsay, and even for “harassment,” cannot justify an instruction to the witness to refuse to answer. If a deposition has truly become unreasonably harassing, the deponent’s remedy is not to refuse to answer questions but rather to suspend the deposition, walk out the door, and immediately move for a protective order.

When faced with improper instructions to refuse to answer, the Master Strategist will troubleshoot the issue in the following order:

1.         Clarify that Witness Refuses to Answer. Create a clear record that the witness is abiding by counsel’s instruction, refusing to answer the questions posed. Without this clarification, any subsequent motion will be moot.

2.         Educate Counsel. Allow counsel to save face, perhaps by meeting and conferring in the hall, outside the client’s earshot. Try quoting this Manual, or the text from the Stewart case, in an attempt to calmly educate counsel regarding improper objections. Gently note that making “an unmeritorious objection to discovery” is sanctionable. See Cal. Civ. Proc. Code § 2023.010(e). Refrain from sounding didactic or condescending. Counsel may refuse to back down in this instance for many reasons, pride among them, but may be nonetheless deterred from making further improper objections.

3.         Circle Back Later. In a surprising number of circumstances, the subject matter of a question for which the attorney instructed the witness to refuse to answer will be less objectionable later in the deposition. After five or six hours, as fatigue sets in and the coffee wears off, attorneys may become less vigilant, and witnesses may become more bold, answering questions that that they should not, and answering them faster than counsel can object. In some cases the more chatty witnesses may even offer up the answer you were looking for, sua sponte, without being directly asked. Try asking the objectionable questions later in the day and see if you can get what you need.

4.         Call the Judge. Explore with your judge at the case management conference, or during some other unrelated hearing, whether she would be available for an on-the-spot, telephonic conference to adjudicate objections during depositions. This is a more common practice performed by magistrate judges in federal court, but a potential solution available from an accommodating judge (or judge pro tem) in state court.”

You can buy Douglas Robbins’ book on Amazon.  

One of the most common questions I am asked is: when does the clock start regarding bringing motions to compel written discovery? The statutes all contain the same language, but it’s not that easy to decipher. Below is a list of scenarios with the applicable statutes and case law regarding the different responses you may receive.

FAILURE TO RESPOND There is no time limit on bringing the motion to compel the response to the Interrogatories, or the request for production of documents, or have the admissions be deemed admitted. See CCP §§2030.290(b), 2031.300(b) and 2033.280.

RESPONSES WITHOUT VERIFICATION  There is no time limit on bringing the motion, as an unverified response is tantamount to no response. See Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1102 citing Appleton v. Sup. Ct. (1988) 206 CA3d 632, 636.

RESPONSES WITH ONLY OBJECTIONS  Need to bring the motion within 45-days of service of the response. See CCP §§2030.300(c), 2031.310(c), and 2033.290(c).

Responses that only contain objections need not be verified by the party but the response must be signed by the attorney.  See CCP §§ 2030.250(a),(c), 2031.250(a),(c), 2033.250(a), (c) and  Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1113 citing Blue Ridge Ins. Co. v. Sup. Ct. (1988) 202 CA3d 339, 344.

RESPONSES WITH ANSWERS AND OBJECTIONS  Need to bring the motion within 45-days of service of the response. See CCP CCP §§2030.300(c), 2031.310(c), and 2033.290(c).

The Fourth District Court of Appeal in the case of Golf & Tennis Pro Shop, Inc. v. Superior Court, 2022 Cal. App. LEXIS 855 answered the question whether the 45-day period to file a motion to compel further responses begins to run upon service of a combination of unverified responses and objections if the motion challenges only the objections. The Court held that “the most reasonable construction of the applicable statutes seems to us to require verification of such a hybrid of responses and objections before the time period begins to run.”

The response must be signed under oath by the responding party and the attorney. See CCP §§ 2030.250(a),(c), 2031.250(a),(c), 2033.250(a), (c) and  Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1113 citing Blue Ridge Ins. Co. v. Sup. Ct. (1988) 202 CA3d 339, 344.

AMENDED RESPONSES The clock on a motion to compel further responses begins to run once the “supplemental verified responses” are served. See CCP §§2030.290(b), 2031.300(b) and 2033.280.  See Golf & Tennis Pro Shop, Inc. v. Superior Court, 2022 Cal. App. LEXIS 855.


Stipulations to extend the time to bring a motion to compel further responses must be in writing with a date certain. See Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1148 and CCP CCP §§2030.300(c), 2031.310(c), and 2033.290(c).

Delaying the motion beyond the 45-day limit waives your right to bring a motion to compel as the court loses jurisdiction. 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

The court may toll the deadline for filing a discovery motion if an Informal Discovery Conference is requested pursuant to CCP §2016.280. See blog “If Meet and Confer Fails, Ask for Help.”


When the Covid-19 pandemic struck in early 2020, the legal profession scrambled as to how it could proceed without conducting business in person. Emergency Orders were issued by the Judicial Counsel and remote depositions became an everyday occurrence.

On January 1, 2022, California Rules of Court, Rule 3.1010 titled “Oral depositions by Phone, videoconference, or other remote electronic means” was modified to reflect the practicalities of what we learned the previous two years regarding remote depositions.

Continue Reading Rule of Court Changes for Remote Depositions

That is what the Eighth Division of the Second District Court of Appeal said in their opinion in Beth Field v. U.S. Bank National Association B309111 filed on June 9, 2022.  The Court of Appeal went further and said “You likewise harm your own prospects if ever you hope for a fee award.  (See Karton v. Ari Design & Construction Inc. (2021) 61 Cal.App.5th 734, 747 [attorney unprofessionalism justifies reducing fee awards].)”

Continue Reading “You Harm Your Client’s Interest When You Craft or Transmit Evasive Discovery Responses”

Recently I was contacted by an attorney who asked

“When does the 45 days to bring a motion to compel further responses to RPD begin? Is it when they serve their written response with an asserted privilege, or when they produce documents? The issue is over an asserted attorney client privilege. They produced redacted documents, no privilege log yet.” Continue Reading Does the 45-Day Rule Apply when no Privilege Log was Served?

Have you ever been in any of these situations?

Ten days after your client was served with the summons and complaint, the client was personally served with Form Interrogatories, 35 specially prepared interrogatories, 35 requests for admissions and 50 document requests.

Days after an unsuccessful mediation, you are served with 75 requests for admission, 60 special interrogatories, Form Interrogatory #17.1 and 100 requests for documents.  A Declaration of Necessity was served with the discovery.

Eleven days before the close of discovery, opposing counsel hand serves you with a Person Most Knowledgeable/Custodian of Records Deposition Notice with 27 separate categories for testimony and 67 requests for documents.

In each of these situations the discovery propounded was proper according to the Code of Civil Procedure. Continue Reading WHEN YOU GET BOMBARDED WITH DISCOVERY…

Co-Written with Suzanne Martin, Esq.,  Director of National Accounts for Centext Legal Services.

The COVID-19 pandemic has fundamentally changed the way in which depositions are conducted.  Most depositions throughout California are now conducted remotely, on virtual conferencing platforms, rather than in person, which was the modus operandi for so long. This change has brought some major benefits for counsel, witnesses, and the court reporters/videographers who are critical to the proceeding: there is much greater flexibility for all involved, as they are no longer required to travel to and from their offices or homes for each deposition, they do not need to carry their files or equipment to and from the deposition location, and they can now “attend” from anywhere, at any time, with a reliable internet connection.  Running late, stuck in traffic, and transit delays are all avoided.  Here in the Bay Area, that has been an enormous benefit simply in the efficient management of time, avoiding the ever-frustrating Bay Area freeways or less-than-reliable public transportation networks.  Virtual depositions, when counsel and witnesses are prepared and their connections are vetted, promote greater efficiency and result in less time overall to complete the examination.  Depositions tend to start on time, breaks tend to be shorter, distractions are minimized, and the preparation and management of the exhibits is streamlined.

Continue Reading What Lawyers are Getting Wrong in Virtual Depositions