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.”

 

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

 

Many lawyers use the terms “supplemental expert” and “rebuttal expert” interchangeably, but, according to the Discovery Act, they are very different. A supplemental expert  is one that was disclosed twenty days after experts have been disclosed and is pursuant to Code of Civil Procedure section 2034.280 and is allowed to provide expert testimony. However, a rebuttal expert’s testimony is limited to rebutting or contradicting an opponent’s  expert’s “foundational facts” that form the basis of their opinion. Continue Reading Rebuttal Expert Witnesses—Do you know how to use them?

If a party failed to serve their expert disclosure statement on time, they may bring a motion pursuant to C.C.P §2034.710 for an order to submit a tardy expert witness list.  This section titled Power of Court to Allow Motion to Submit Tardy Expert Witness states:

(a) On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.

(b) A motion under subdivision (a) shall be made a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section  § 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.

(c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

Continue Reading So, You Forgot to Serve Your Expert Disclosure – Now What?

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: Continue Reading The Other Side Retained My Consultant – Should They Be Disqualified?

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. Continue Reading You Must be Diligent in Discovery to get a MSJ/MSA Continued