From the Courts’ and Legislature’s perspective, the purpose of discovery is to exchange information between the parties so each side can evaluate their strengths and weaknesses of their case, so that they are able to resolve the case or, if settlement is not possible, to safeguard against surprise at trial to avoid unnecessary delays and appeals.  From the parties’ perspective, the purpose is to obtain as much as you need from your opponent about their case.  Most critical to this process is taking the depositions of opposing parties’ experts. However, in order to have the right to take those depositions, you must strictly follow the rules for expert witnesses outlined in Code of Civil Procedure section 2034.010 et seq., starting with the demand for simultaneous exchange of expert trial witness information pursuant to CCP § 2034.210 titled “Demand for simultaneous exchange of expert trial witness information; List; Expert witness declaration; Discoverable reports and writings”, which reads:

After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other’s expert trial witnesses to the following extent:

(a) Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial. 

(b) If any expert designated by a party under subdivision (a) is a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, the designation of that witness shall include or be accompanied by an expert witness declaration under Section 2034.260.

(c) Any party may also include a demand for the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, made by any expert described in subdivision (b) in the course of preparing that expert’s opinion.

Time for making demand

Code of Civil Procedure §2034.220 titled “Leave of court not required; Time for making demand” states: 

Any party may make a demand for an exchange of information concerning expert trial witnesses without leave of court. A party shall make this demand no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.

If that day falls on a Saturday, Sunday, or court holiday, the last day to make your demand is the next court day closer to the trial date.  CCP §2034.220

A new trial date does not extend the time to make a demand for the exchange of expert witness information. You must request the trial court to change discovery cut off dates or reopen discovery if you want a new exchange date for expert disclosure.  However, this is not the case when a trial date is set after a mistrial, order granting a new trial, or reversal on appeal.  See Cal. Civil Discovery Practice (CEB 2020, Fourth Ed.)  §11.10-11.

HINT:  Rather than waiting until the last minute and potentially losing your right to obtain expert disclosures from the other side, demanding expert disclosure as soon as the case is set for trial avoids the problem. This way you never have to worry about missing the deadline.

Form and Content of Demand

The demand must comply with CCP §2034.230 titled “Form and content of demand for exchange of expert witness information” which states:

(a) A demand for an exchange of information concerning expert trial witnesses shall be in writing and shall identify, below the title of the case, the party making the demand. The demand shall state that it is being made under this chapter.

(b) The demand shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings. The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.

HINT:  If the case is expert driven or more than five expert depositions per side are going to be taken, consider moving the expert disclosure from 50 days before trial to 75, 90, or even 150 days before trial. This can be done either by stipulation or bringing a motion for protective order pursuant to CCP §2034.250(b)(2).

You can find a form for the Demand for Exchange of Expert Trial Witness Information at Cal. Civil Discovery Practice (CEB 2020, Fourth Ed.) §11.69

Serving the Demand 

According to CCP §2034.240 titled “Service of demand”,

The party demanding an exchange of information concerning expert trial witnesses shall serve the demand on all parties who have appeared in the action

REMEMBER.  If there is no timely demand, the statutory procedure for exchange is optional.  See Cal. Civil Discovery Practice (CEB 2020, Fourth Ed.) §11.09 citing Perry v. Bakewell Hawthorne, LLC (2017) 2 C5th 536, 543.

 

The biggest burden in bringing motions to compel further responses is the preparation of the separate statement of items in dispute pursuant to CRC, Rule 3.1345. In my blogs and at seminars, I have advised parties to prepare their meet and confer letters in the format of a separate statement. See my blog “EXHIBIT A—The Meet and Confer Letter.” As a Discovery Referee I have required parties to exchange Discovery in Word format. I find it is helpful for two reasons: (1) the parties can meet and confer using the “Track Changes” function in Word and hopefully agree on the modifications to the propounded written discovery, and (2) parties can easily prepare the separate statement of items in dispute if a motion needs to be filed. This takes out the grunt work of having to retype the interrogatories, requests for admissions and requests for documents, as well as their responses when preparing or responding to the separate statement when only a hard copy was served.

In 2020, Code of Civil Procedure § 2030.210 titled Written responses to interrogatories; Content of response; Format and method of transmission added the following paragraph:

(d) In order to facilitate the discovery process:

(1) Except as provided in paragraph (5), upon request by the responding party, the propounding party shall provide the interrogatories in an electronic format to the responding party within three court days of the request.

(2) Except as provided in paragraph (5), upon request by the propounding party after receipt of the responses to the interrogatories, the responding party shall provide the responses in an electronic format to the propounding party within three court days of the request.

(3) A party may provide the interrogatories or responses to the interrogatories requested pursuant to paragraphs (1) and (2) in any format agreed upon by the parties. If the parties are unable to agree on a format, the interrogatories or responses to interrogatories shall be provided in plain text format.

(4) A party may transmit the interrogatories or responses to the interrogatories requested pursuant to paragraphs (1) and (2) by any method agreed upon by the parties. If the parties are unable to agree on a method of transmission, the interrogatories or responses to interrogatories shall be transmitted by electronic mail to an email address provided by the requesting party.

(5) If the interrogatories or responses to interrogatories were not created in an electronic format, a party is not required to create the interrogatories or response to interrogatories in an electronic format for the purpose of transmission to the requesting party.

(6) A responding party who has requested and received the interrogatories in an electronic format pursuant to paragraph (1) shall include the text of the interrogatory immediately preceding the response.

There was a similar change regarding Requests for Admissions. See C.C.P. §2033.210(d). Unfortunately, there were no similar changes to C.C.P. §2031.210-240 regarding responses to Request for Production of Documents.

At a time when Covid-19 has thrown hurdles in front of us regarding our ability to litigate a matter, this is a welcome change to the discovery process.

Assume you receive the following response to your Requests for Production of Documents:

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. Notwithstanding said objections, no documents.

In reviewing the response, it is likely you are focusing in on the fact that there are garbage objections to your request and that you weren’t provided a privilege log. However, there is another issue that you should take very seriously—the document response is not in compliance with California Code of Civil Procedure section 2031.230.

C.C.P. §2031.230 requires the responding party to provide in their response:

(1)       A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.

(2)       This statement shall also specify whether the inability to comply is because the particular item or category has:

(a)        never existed,

(b)       has been destroyed,

(c)        has been lost, misplaced, or stolen,

(d)       or has never been, or is no longer, in the possession, custody, or  control of the responding party.

(3)       The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

Such requirement is more than a mere technicality.

As to the party making the request, making sure the responding party’s response is in compliance with C.C.P. §2031.230 is crucial. The propounding party must be able to rely on the response to determine whether any documents should have been produced, never existed, has been lost, stolen or destroyed or might be obtained through subpoenas to third parties.  Only with the response complying with C.C.P. §2031.230 is the propounding party in a position to decide whether there is a need to bring a motion for  issue, evidentiary or terminating sanctions due to Responding Party’s inability to obtain the documents in question.

The JUDGE’S PERSPECTIVE found in California Civil Discovery Practice (CEB 4th Ed. 2020) at Section 8:78 gives the best advice as to why you should demand compliance of this code section:

An assertion of inability to comply may preclude the responding party from using a “recently discovered” requested document at trial unless the responding party can establish that a good faith effort was made to discovery the document, and that the document was not available at the time of the response.  Because the ability to search for the document exists with the responding party, any mistake or neglect in the search may well accrue to the detriment of the responding party, thus limiting the responding party’s ability to “sandbag” the requesting party at trial.

The case of Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967 gives a long discussion as to how the failure to comply with C.C.P. §2031.230 can lead to issue, evidence and terminating sanctions.

The greatest discovery abuses come from responses to Requests for Production of Documents.  Many responses contain a myriad of garbage objections, fail to contain a privilege log, along with producing documents that are not organized by category. Due to the responding party’s failure to comply with Codes of Civil Procedure § 2031.220, §2031.230, §2031.2400 and §2031.280, a motion to compel further responses and production of documents is the most common motion on the court’s docket. It is also the most time-consuming motion to not only prepare, but for the court to rule on.

On January 1, 2020, Code of Civil Procedure §2023.050 became effective which imposes mandatory sanctions for motions regarding Requests for Production of Documents. This new statute requires the court to impose mandatory sanctions on motions involving requests for production of documents.  This sets up a party’s ability to bring issue, evidence and terminating sanctions as there will be an adjudication of prior discovery abuse.

The new statute reads:

(a) Notwithstanding any other law, and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose a two hundred and fifty dollar ($250) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds any of the following:

(1) The party, person, or attorney did not respond in good faith to a request for the production of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an inspection demand made pursuant to Section 2031.010.

(2) The party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450, 2025.480, or 2031.320 that is filed by the requesting party as a result of the other party, person, or attorney’s failure to respond in good faith.

(3) The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.

(b) Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.

(c) The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(d) Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.

(e) For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.

 

There were three changes to the Discovery Act that became effective on January 1st, 2020 which can be found in Code of Civil Procedure sections  2031.280, 2016.090 and 2023.050. This blog will discuss the change to C.C.P. §2031.280 and its significance.

California Code of Civil Procedure § 2031.280 titled Form in which documents to be produced; Form for producing electronically stored information; Translation of data subdivision (a) states as follows:

Old Statute:

(a) Any documents produced in response to a demand for inspection,  copying, testing, or sampling shall either be produced as they are kept in  the usual course of business, or be organized and labeled to correspond with the categories in the demand.

            New Statute:

 (a) Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.

            Difference:

Responding party can no longer produce documents kept in the “usual course of business.

This change in the law is an attempt to curb discovery abuse. The former law enabled a party to dump thousands of documents in response to a document request with no rhyme or reason as to how they are responsive to a specific request. The demanding party was left with two choices to nail down which document was responsive to which request: (1) propound further written discovery or serve a deposition notice to determine what documents the responding party was relying on to support their case their claim or defense or (2) seek a court order requiring the responding party to label and sort the files to correspond to the categories demanded. See Kayne v. The Grande Holdings Limited (2011) 198 Cal. App. 4th 1476.  Either choice delayed the discovery process by months.

The revision to the statute eliminates the need for the demanding party to guess which documents  are responsive to a specific request thus saving time and expense for the demanding party.   The new law is burdensome and more expensive for the responding party in document intensive cases. However, the responding party is in a better position to determine what documents are responsive to a specific request.

 

 

 

As stated in the blog It’s Not a Discovery Device, But…, a Demand for Bill of Particulars is NOT a discovery device, but an extension of the complaint or a cross-complaint [complaint].  Unlike interrogatories and deposition testimony, a  Bill of Particulars is conclusive as to the items and amounts claimed and no other evidence is admissible at trial.    More importantly, if the court finds that any of the line items are deficient it can strike the entry and preclude plaintiff/cross-complainant [plaintiff] from proving the debt is owed.

Continue Reading If Plaintiff’s Bill of Particulars is Improper, Evasive and/or Incomplete; You must Bring a Motion or You Waive Your Objections

Pre-trial discovery is the heart and soul of litigation. It enables the parties to evaluate and prepare their case for mediation, motions for summary judgment or summary adjudication and for trial. The propounding of discovery also leads to discovery disputes and then to discovery motions–all which can threaten to overwhelm the litigation of the case. However, due to the court holidays ordered by the Judicial Council during this pandemic, parties were not able to have their discovery disputes heard by the courts, thus, stalling their cases. Now with the courts reopening, the backlog of motions previously taken off calendar will need to be rescheduled. Meanwhile, new motions are being filed. This unprecedented situation begs the question from attorneys: When will my discovery motion be heard?

Continue Reading When Will My Discovery Motion Be Heard?

 

Life as we knew it has been put on hold due to COVID-19.  Courts are closed, deadlines are extended, and court dates have been continued.  As the courts establish “new norms” for their operations, access to the civil courts may be limited and further delayed.  It is not clear what civil matters will receive priority. Civil law and motion matters taken off calendar due to court closures will need to be rescheduled, and newly filed motions added to crowded calendars. It could take months or years before the court dockets return to normal.  Scheduling new law and motion matters and having them heard will be challenging for all litigators.  However, courts and counsel have available options to address the backlog.

Continue Reading Civil Litigation and COVID-19: Justice Need Not Be Delayed

Recently at an MCLE seminar, a sitting judge forewarned the audience that because of all the new judges from a variety of backgrounds, often they don’t  have the necessary background on law and procedures for their department.  His advice:

come to your hearings with copies of all the important cases and statutes, no matter how basic the concept is.

This sitting judge was subtly saying:  Plan on educating the court!!

Continue Reading Know Your Audience

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.

Continue Reading How Much is that Motion in the Window?