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.

In my Discovery Referee cases I am seeing more motions going to the brink with one party bringing a motion for issue, evidence and/or terminating sanctions.   Many of the motions are denied without prejudice due to the papers being deficient in showing a history of abuse and prejudice to the propounding party that warrant the granting of the motion.  This blog discusses the law regarding the court’s ability to award issue, evidence and terminating sanctions and what you need in your motion to be successful.   

Continue Reading When Money is Not Enough–The Request for “Drastic Sanctions”

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.  

Continue Reading Beware if Your Expert is Disqualified!!

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.

Continue Reading It’s a New Year and there are New Discovery Laws

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.

Continue Reading Where’s the Authority to Award Sanctions?

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.

Continue Reading What to do When the Deponent Refuses to Answer 

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.

REMEMBER:

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.”

Continue Reading When Do I Have to Bring a Motion to Compel Written Discovery?

 

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?