In Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, the Court of Appeal stated that where counsel retains an expert consultant with confidential information concerning the opponent’s case, there is a rebuttable presumption that the expert shared that confidential information with the counsel that retained him or her, which requires disqualification. See Evid Code §606 on the effect of a presumption. To prevent disqualification, the presumption must be rebutted with an affirmative evidentiary showing that no confidential materials were transmitted. This showing has been met by including the writings that were transmitted and what topics were discussed verbally, which would demonstrate that the offending material was not transmitted. However, be mindful that it is not just the precise materials, but also the benefit of the confidential materials that must be rebutted:

Even assuming that [the lawyer subject to disqualification] did not expressly ask [the subject expert] about the contents of his discussion with [the opponent] and that [the expert] did not explicitly disclose the information to [the lawyer], [The lawyer] could still obtain the benefit of the information because the data, consciously or unconsciously, could shape or affect the analysis and advice [the expert] rendered to [party facing disqualification]. Given that both [plaintiff] and [defendant] consulted [the expert] on the same issue…it is highly unlikely that [the expert] could conscientiously discharge his duty to [defendant] as its retained expert and at the same time discharge his duty not to divulge confidential information received from [plaintiff].”  (Shadow Traffic Network  at page 1086)

There are two cases that courts look to in deciding whether opposing counsel should be disqualified under Shadow Traffic— Collins v. State of California (2004) 121 Cal.App.4th 1112 and Shandralina G. v. Homonchuk (2007) 147 Cal.App.4th 395.

Collins involved a personal injury action. Plaintiffs’ counsel hired an expert witness on the subject matter of windshields. Unbeknownst to Plaintiffs’ counsel, two Defendants had hired the expert as a consultant. After Plaintiffs’ counsel disclosed the retained expert, defendants brought a motion to disqualify plaintiffs’ counsel. The trial court granted the motion to disqualify. Plaintiffs appealed.

The Court of Appeals reversed the disqualification of counsel. The court references the following three findings supporting the denial of the motion to disqualify:

(1)     The plaintiff firm had no notice of the expert’s dual status until defense counsel raised the issue because the expert never disclosed his dual retention. (In other words, the lawyer did not know of the prior retention)

(2)     The plaintiff firm ceased all direct contact with the expert after his dual role was revealed. (The lawyer immediately took steps to prevent further communication with the expert)

(3)     Most importantly, the undisputed evidence demonstrates that no confidential information originating from the defendants, or their attorneys was transmitted by the expert to Plaintiff counsel. (The lawyer affirmatively showed what was disclosed, and no opinions or confidential information was involved, i.e., photographs and the police report.) (Collins, at page 1116)

What swayed the Appellate Court was Plaintiff counsel’s declaration explaining what specific information was provided and the subject matter of their preliminary conversations. The declaration from counsel continued that there was a specific discussion when the conflict was brought to their attention and detailed the timing of the prior consultant relationship with the Defendants. The court then applied Shadow Traffic and held that the presumption was overcome. The lesson from Collins is this: an innocent contact with an opposing expert is not enough to be disqualified, but be prepared to demonstrate both your innocence and that the communications that were made did not involve confidential material of the opposition.

Shandralina G.  involved a medical malpractice action, where plaintiff attempted to hire the defendant’s consultant as an expert witness. The court notes that the only information transmitted was whether the doctor had a conflict (he claimed no) and the transmittal of medical records that had previously been produced in litigation and was therefore, not confidential. The Defendant (who was seeking disqualification) was still the client of the consultant. Nonetheless, the trial court ordered disqualification, finding that Plaintiff counsel had the burden to establish he did not receive any confidential information from the expert.

The Appellate Court reversed. The court concluded that the party seeking disqualification has the burden of first proving that confidential information was imparted to the challenged expert to raise the presumption that it was transmitted to the opponent. In seeking disqualification, however, the Defendant did not attempt to prove that his confidential information was provided to the consultant to raise the presumption that the Plaintiff had received any from the consultant. Since no proof was provided, the burden was not satisfied. The court justified its decision by concluding:

“There is no competent evidence of sufficient substantiality that [ the expert] disclosed confidential information to [the counsel facing disqualification] during the conversation. Accordingly, the misallocation of the burden of proof cannot be deemed harmless, and we reverse the order disqualifying [counsel]. ” Shandralina G. at page 417.

Pursuant to Shadow Traffic, an expert and counsel can be disqualified if the expert retained by counsel has confidential information obtained from the opposing party in the litigation. Under Collins and Shandralina G. , the party making the motion to disqualify opposing counsel for obtaining confidential information about his case must first establish that confidential information was transmitted to the consultant or expert, to raise the presumption that the expert shared that with opposing counsel. Once the presumption is in play, the party opposing disqualification must then affirmatively demonstrate that no confidential information was in fact obtained. Stated more simply: if you are seeking disqualification, show that you gave the expert confidential information. Counsel opposing the motion to disqualify must be prepared to show that they were not given any confidential information from the expert in order to defeat the motion.

 

 

On July 29, 2021, in the case of Braganza v. Albertson’s LLC, (2021) 67 Cal. App. 5th 144, the Fourth District Appellate District affirmed the trial court’s denial of Plaintiff’s motion to continue the hearing for a Motion for Summary Judgment and thereafter granting the defense’s motion. The key: Plaintiff’s counsel sought the continuance on the ground that she needed additional discovery to oppose the motion but did not demonstrate diligence in timely conducting discovery before seeking the continuance.

The timeline of this case is crucial to the Court of Appeal’s decision. Plaintiff sued Defendant for personal injuries and other damages she sustained as a result of slipping and falling on the floor of Defendant’s grocery store on December 5, 2017. On December 18, 2018, Defendant brought a Motion for Summary Judgment to be heard on March 6, 2019, meaning the opposition would be due 14 days prior to the hearing, or February 20th. On February 4, 2019, Plaintiff served an inspection demand on Defendant, demanding to inspect and test the floor in the area where Plaintiff fell on March 12, 2019—six days after the Motion for Summary Judgment was to be heard. On February 19, 2021, instead of filing an opposition, Plaintiff filed a request to continue the hearing on the motion in order to allow her time to conduct discovery necessary to oppose the motion (Code Civ. Proc., § 437c, subd. (h)). The declaration of Plaintiff counsel stated:

“that the continuance was necessary (1) in order to allow plaintiff’s expert forensic engineer to conduct a coefficient of friction test on the floor area where plaintiff fell, and (2) to allow plaintiff’s expert time to prepare a declaration in opposition to Albertson’s motion.”

The declaration went on to state that the absence of Plaintiff’s own expert’s coefficient of friction test, Plaintiff did not have evidence to oppose the second ground of Albertson’s motion. The trial court denied the continuance based on Plaintiff’s failure to show diligence in timely conducting discovery and granted the motion for summary judgment. Plaintiff appealed.

The Fourth Appellate District affirmed. The court, citing Cooksey v. Alexaskis (2004) 123 CA4th 246 at 257, stated:

“[a]lthough [section 437c, subdivision (h)] does not expressly mention diligence, it does require a party seeking a continuance to declare why ‘facts essential to justify opposition … cannot, for reasons stated, then be presented’ (§ 437c, subd. (h), italics added), and courts have long required such declarations to be made in good faith. [Citations.] There must be a justifiable reason why the essential facts cannot be presented. An inappropriate delay in seeking to obtain the facts may not be a valid reason why the facts cannot then be presented. The statute itself authorizes the imposition of sanctions for declarations presented in bad faith or solely for purposes of delay. (§ 437c, subd. (j).) A good faith showing that further discovery is needed to oppose summary judgement  requires some justification for why such discovery could not have been completed sooner. (Cooksey, supra, 123 Cal.App.4th at p. 257; see Rodriguez v. Oto, supra, 212 Cal.App.4th at pp. 1038–1039.)” Braganza supra at page 156

If you want the court to grant your motion to continue the motion for summary judgment/summary adjudication pursuant to Code Civ. Proc., § 437c, subd. (h) you must:

“show why the discovery necessary to oppose the motion for summary judgment or summary adjudication could not have been completed sooner, and accordingly requires the court to grant the continuance.” Braganza, supra at page 156

Helpful Hint: If you are served with a Motion for Summary Judgment, don’t put off reviewing it because of the long notice period.  You need to  determine if you will need discovery to oppose the motion and serve it.

Sometimes, when you follow the rules regarding the expert witness demand and the initial expert witness disclosure and declaration and are now in receipt of opposing party’s expert disclosure, you find that the opposing party plans to call experts at trial in a subject area which you assumed wouldn’t require expert testimony, or that you hadn’t anticipated. If you didn’t disclose experts on the subject, you can serve a Supplemental Expert Disclosure within 20 days of the exchange of expert witness disclosure. Continue Reading I didn’t know I needed an expert on that…

If a party has timely served a Demand for Simultaneous Exchange of Expert Trial Witness Information pursuant to Code of Civil Procedure section 2034.210, then “all parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand.”C.C.P. §2034.260(a). Unless there is a court order specifying otherwise, that date for the simultaneous exchange is 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date. C.C.P. §2034.230(b).

Continue Reading 50 Days Before Trial—It’s Expert Disclosure Time

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 electronic forms for Discovery, especially in Word, are 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 electronic Discovery process 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.

Continue Reading In Order to Facilitate the Discovery Process–Serve Your Discovery in Electronic Form

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.

Continue Reading Nail Down Whether the Documents You are Seeking ever Existed and Where They are Now 

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.

Continue Reading New Discovery Sanction Regarding Requests for Production of Documents

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.

Continue Reading Make Sure You are Aware of the New Document Response Requirements

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 testimonies, 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?