Scenario: A party makes outrageous claims against your client that is not supported by the facts. Their lawyer repeats these claims in hearings before the court, placing you in a position of trying to argue against the falsity, and making sure that false allegations being made doesn’t prejudice the court against you and your client prior to the trial.
The discovery plans in these cases are different than the other litigated cases. Your goal is to discredit the false allegations either by affirmatively proving that the allegation is false or showing that there is no evidence to support the false allegations in order to bring a motion for summary judgment/summary adjudication and motions in limine. In order to accomplish these goals your discovery plan will need to be strategic as well as a being thoroughly planned out as to what discovery devices will be the most effective.
Before drafting your discovery, review the California Jury Instructions and determine the elements of each cause of action or defense. Determine which element(s) of each cause of action that you should target with your discovery to defeat each false accusation.
I. Initial Discovery
When you are trying to disprove a false accusation, you need to pin your opponent down as soon as possible so a party’s declaration cannot defeat a Motion for Summary Judgment or Motion for Summary Adjudication. See Beth Field v. U.S. Bank National Association.
- Requests for Admissions, Set #1: In my blog, Litigate like an Egyptian, I discuss a discovery plan can be used for the majority of cases that you have. For example, I recommend waiting before serving Requests for Admissions until after the majority of the written discovery has been responded to and depositions have been taken. However, since your goal is to pin the other side down as soon as possible, the use of Requests for Admissions is your most effective discovery tool. It is more effective than contention interrogatories as there is no wiggle room regarding the responses especially when you use Form Interrogatory #17.1. in responding to Requests for Admissions see the following blogs: How to Write Requests for Admissions, Answering Requests for Admissions–Beware of the Traps, and Request for Admissions–THE MOTIONS. Serve approximately twenty (20) requests for admissions targeting just the essential elements where you know they have no evidence. Remember, a proper request for admission is to ask the opposing party to admit there is no specific evidence (document, witness, or fact) to support a certain assertion.
- Form Interrogatories, Set #1: Serve Form Interrogatories including #17.1 regarding Requests for Admissions, Set #1 This form interrogatory requires the opposing party to state all facts, all witnesses and all documents in support of each denial to each to your request for admissions–their proof. Together, with the denial to your Requests for Admissions is the foundation of the lack of evidence supporting their false allegations. Make sure you follow up on their responses with a motion to compel further responses if the answers are deficient. If there are no facts, witnesses or evidence you have your grounds to file a motion for summary adjudication on that cause of action.
Also, you would be entitled to cost of proof sanctions if the denial of a Request for Admission is found to have been improper.
- Request for Production of Documents, Set #1: Serve your Requests for Production of Documents Regarding the documents they have identified in their response to Form Interrogatory 17.1(d). Make sure you do a separate request for each Request for Admission. (i.e., “Produce ALL documents identified in YOUR response to Form Interrogatory 17.1(d) for Request for Admission #1.”)
II. Second Tier Discovery
- Depositions: Schedule depositions with document requests of any party and identified witness as soon as possible so you can pin them down. Prepare your questions so they are pointed and precise. To get Summary Judgment/Adjudication or an in limine granted the record must be clear that questions were specifically asked at the deposition seeking evidence and documents were not produced to substantiate the false accusation. If the opposing party objects to your discovery or doesn’t produce all responses and documents and you need to file a motion. Remember to keep the deposition open while you seek your court order.
- Subpoena Third Party Records: Subpoena all records that are identified in the responses to the Form Interrogatories.
III. Target Discovery
At this juncture you want to make sure you have pinned down that the opposing party neither has any facts, witnesses or documentation to support an essential element of their cause of action or defense as set forth in the Jury Instructions.
- Requests for Admissions, Set #2: Serve your remaining Requests for Admissions. Try not to go over a total of thirty-five as you don’t want to trigger a Motion for Protective Order.
- Form Interrogatory 17.1, Set #2: Serve Form Interrogatory #1.1 and 17.1.
- Demand for Production of Documents, Set #2: Serve Demand for Production of Documents regarding the documents they have identified in their responses to Form Interrogatory, Set #2 #17.1(d) for each Request for Admission
- Supplemental Interrogatory: Serve supplemental Interrogatory pursuant to C.C.P. § 2030.070.
- Supplemental Demand: Serve Supplemental Demand pursuant to C.C.P. §2030.050.
Helpful Hints: Be diligent in keeping your timeline. Keep a short leash on opposing counsel if they ask for extensions. File your motions to compel further responses to discovery as soon as possible. Ask for a Discovery Referee to be appointed if the opposing party is using delay tactics. Don’t hesitate to file a motion for issue, evidence or terminating sanctions if the discovery responses are insufficient as it is their goal not to get pinned down.