Have you ever wondered how the work product doctrine works when you hire a consultant who may or may not become your expert. Trial Attorney Lee Previant, from Los Angeles, wrote this great article titled “Attorney Work Product Doctrine And Experts for Advocate Magazine that explains how it all works.  Enjoy.

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As any litigator is undoubtedly aware, expert witnesses are necessary whether to offer evidence required to meet your burden of proof or to offer evidence to combat attacks on causation.  Likewise, communications with your expert witnesses are necessary.  This includes communications to 1) retain the expert witness, 2) communications providing them with case specific materials so they may formulate their opinions, and 3) communications providing scientific, technical, professional texts, treatises, journals, or similar publications to assist the expert in forming their opinion.  In addition, an attorney may communicate with an expert for the sole purpose of obtaining advisory opinions.

An expert witness is defined as someone who has “special knowledge, skill, experience, training, or education sufficient to qualify him[/her] as an expert on the subject to which his[/her] testimony relates.”  (Evid. Code § 720.)

Once qualified, an expert may offer an opinion “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact[.]” (Evid. Code § 801(a).)  Such an opinion can be based on matters “perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Evid. Code § 801(b).)  The type of material an expert may rely upon is quite broad and encompasses inadmissible evidence, such as hearsay.  Simply put, experts wield incredible power in litigation and the attorney’s communications with them should be deliberate and strategic.

A primary issue in using experts is: what communications are protected by the attorney work product doctrine?  Pursuant to Code of Civil Procedure section 2034.210 subdivision (c), if a proper demand has been made under section 2034.210, subdivision (a), then a party must produce “all discoverable reports and writings, if any,” made by an expert in the course of forming their opinion.  However, no definition of “discoverable” is found in Code of Civil Procedure sections 2034.010-2034.710.  Once an expert has been designated under Section 2034.210 all of the expert’s present and previous opinions as well as any communications the expert might have had with the attorney, clients, other retained experts, and any expert notes or documents provided to the expert are discoverable.  (See Deluca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 690; Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1079; County of Los Angeles v. Superior Court (Martinez) (1990) 224 Cal.App.3d 1446, 1458; Williamson v. Superior Court (1978) 21 Cal3d 829, 835.)

Indeed, “[when] it becomes reasonably certain an expert will give his professional opinion as a witness on a material matter in dispute, then his opinion has become a factor in the cause.  At that point the expert has ceased to be merely a consultant and has become a counter in the litigation, one to be evaluated along with others. Such evaluation properly includes appropriate pretrial discovery.”  (Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 203.)

Continue Reading An Attorney’s Relationship with their Expert and the Work Product Doctrine

I received a comment about one of my blogs saying:

Many young(er) attorneys abuse discovery as a matter of course – as if they have been taught how to be obstructionists at law school. I also think newer attorneys do the scorched earth route to create more billing.  One dope sent me objections that were over 100 pages.

I have written many blogs regarding how to handle discovery abuse by opposing counsel.  These include filing motions to compel further responses, filing motions for protective orders and how to recover sanctions.

However, what I have been seeing lately is that the counsel responding to the written discovery does not understand what their obligations are in responding to written discovery.  It’s as if they never read the statutes and never read any of the treatises.  Instead the responses are full of garbage objections that have no merit and the responses show a failure of a proper investigation. This isn’t just coming from young lawyers but also seasoned lawyers with 15+ years of experience.

In understanding, what a party’s obligations are you need to understand that the purpose of the 1986 Discovery Act is to exchange information between the parties so each side can evaluate their strengths and weaknesses of their case so the case can be resolved before trial.

See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017) §8:1 citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355, 376.

The attorney for the responding party needs to be aware of the statutes in responding to interrogatories, request for admissions and Requests for production of documents each have their own set of requirements for the response.  Yet they have one thing in common:

The code requires that a party must make a reasonable and good faith effort to obtain the information. Regency Health Services, Inc. v. Superior Court (1998) 64 CA4th 1496.  “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Superior Court  (1978) 84 CA3d 771, 782. This includes

a party’s lawyer; Smith v. Sup. Ct. (1961) 189 CA 2d 6

agents or employees; Gordon v. Sup. Ct.  (1984) 161 CA 3d 151, 167-168

family members; Jones v. Superior Court  (1981) 119 CA 3d 534, 552

experts; Sigerseth v. Superior Court (1972) 23 CA 3d 427,433

See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017) §8:1051-1060

This means that you can’t just pawn off the responses to your client or spend an hour and dictate off the top of your head and then answer “inability to respond.”  See Sinaiko-Healthcare-Consulting-v.–Pacific-Healthcare

Requests for Production of Documents has a very specific obligation as you must make a “diligent search” and a “reasonable inquiry” which can be a very difficult standard for the responding party to meet if challenged.

There are many treatises on Discovery that explain in detail what are a party’s obligations in responding to discovery as well as what are the proper objections to written discovery.  The treatises that I use are:

  • California Civil Discovery Practice 4th Edition (CEB 2017)
  • California Civil Discovery (LexisNexis 2017)
  • Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017)
  • Cal Prac. Guide: Civil Procedure Before Trial FORMS (TRG 2017)
  • California Discovery Citations (TRG 2017)
  • Jefferson’s California Evidence Bench Book 4th Edition (CEB 2017)

I cannot stress how important it is to know your obligations in responding to written discovery as attorneys spend too much time and money arguing over inadequate responses to basic discovery.

Most cases rise and fall on whether there is documentary evidence supporting a claim or defense. Thus, the most important discovery device in a litigator’s  toolbox  is the ability to request documents pursuant to CCP 2031.210 et seq. Unfortunately, most lawyers fail to properly respond and produce documents which leads to the ever so popular Motion to Compel Further Responses and Production of Documents

Patrick Nolan’s article “How the crafty defense lawyer hides things by avoiding the details in requests for production of documents — Using the teeth of the statute to get the most out of RFPs”  gives an eye opening tutorial on how to deal with a response that is not as straightforward as it appears.  Below is his article.

Continue Reading How a Crafty Lawyer Hides Things by Avoiding the Details when Responding to Requests for Production of Documents

The title of this blog is a quote from the most basic tenant of the 2016 Discovery Act found in Code of Civil Procedure Section 2017.010 titled Matters Subject to Discovery which reads:

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” [Emphasis added]

The courts and the treatises liberally construe this statute and a party’s right to obtain the identity and location of witnesses.

Continue Reading Discovery May Be Obtained of the Identity and Location of Persons Having Knowledge of Any Discoverable Matter

Have you ever had a situation where the opposing side has responded to each of your document production requests with the response?

All responsive documents within the custody and control of responding party will be produced.

and then they dump thousands of documents on you with no rhyme or reason as to how they are organized.

You then diligently send your meet and confer letter stating that the  documents are so disorganized that you “can’t make heads or tails as to which documents are responsive to which request.”  Opposing counsel responds saying that the document production was in compliance with the code as the documents were produced “as they are kept in the usual course of business” and they will neither modify their response nor the production.  So what do you do?

Continue Reading A Needle in a Haystack – When Opposing Party Dumps Documents

 

A row of six blue mailboxes on a street in Charleston, South Carolina. Focus is on the first mailbox's rusty screw head.

When I was a research attorney for Alameda County Superior Court, my judge drilled into me to always check the proof of service to make sure that it was signed and service on all parties had properly been made.  As a Discovery Referee, I still review the proof of service first and I am always amused when the proof of service is signed saying that I was already served.  Recently I was reading Aaron Morris’ article “Don’t be that Attorney—Ten Ways to Make Yourself Look Foolish”,  a humorous article that many of us lawyers always wanted to write about the outlandish positions attorneys take.  I specifically enjoyed his third pet peeve and had to pass it along.

So here it is

Continue Reading To Sign or Not to Sign Your Proof of Service

Hand of referee with red card and whistle in the soccer stadium.

Recently I saw the following document response and without even looking at the document request I knew that the response was bad and a motion to compel further responses was going to need to be filed:

Objection, as some or all of these documents are equally or more available to Plaintiffs. Without waiving, responding party states that all responsive, unprivileged, known, and reasonably available documents will be produced by Defendant, if they have not already been produced to Plaintiffs.

 

Continue Reading DISCOVERY GAMES AND MISCONCEPTIONS—What is Wrong with this Document Response?

gears concept

Recently I received a telephone call from an attorney wanting to discuss whether opposing party’s objections to her special interrogatories had any merit.  Listening to the list of objections, it was clear that the opposing party had failed to assert the objections in good faith as the objections included a General Objection preamble and every response included the same boilerplate garbage objections.  However, one of the objections I hadn’t seen before:  “No preface or instruction shall be included with a set of interrogatories.  C.C.P. §2030.060(d).”  The propounding party had placed the definitions of specific terms in a preamble.  Did I think this was ok or not?

Statutes governing special interrogatories and requests for admissions do not allow for a preface or instruction.  Only when you are using Judicial Council forms for interrogatories and requests for admissions are a preface or instruction permitted.  See C.C.P. §§2030.060(d) and 2033.060(d).  Yet, both the special Interrogatories and requests for admissions statutes require that any term specifically defined shall be typed with all letters capitalized whenever the term appears. See C.C.P.  §§2030.060(e) and 2033.060(e)

The Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2016) takes a position on this is at ¶8:972, which states:

“[w]hether definitions may be placed at the beginning of specially prepared interrogatories is unclear . . . ”

“. . .However, the fact that §2030.060(e) requires specially defined terms to be capitalized strongly suggests they be placed in a single location.  Presumably, this should be at the beginning of the interrogatories . . . “

The California Civil Discovery Practice, Fourth Edition (CEB 2016) at §7.53 has a different take on prefaces, instructions and definitions for special interrogatories.

Prefaces and Instructions.  To ensure that the limitation on the number of interrogatories not circumvented by a lengthy preface or instructions that might amount to subparts (see §7.335), each interrogatory must be full and complete; no preface or instructions are allowed unless they have been approved by the Judicial Council under CCP §§2033.710 – 2033.740.  CCP §2030.060(d).

Definitions.  Definitions may be used in a set of interrogatories, and defined words must be capitalized whenever they reappear in the interrogatories.  CCP §2030.060(e).  Definitions can help counsel avoid repetition in drafting interrogatories, but they should be tailored to the particular action.  It is important to avoid confusion caused by terms not used in or applicable to the interrogatories propounded.  

Some examples of the use of definitions:

  • Who was the driver of the VEHICLE at the time of the accident on Nov. 1, 2005?  (“VEHICLE” is defined for the purposes of these interrogatories as the 2005 red Jeep Cherokee, California License No. RXV724.)
  • Who was the owner of the VEHICLE at the time of the accident on November 1, 2005?

In my opinion, CEB’s recommendation of putting the definition in the individual interrogatory is the better advice even though it is much more convenient for responding party to have the definitions at the beginning.  It is just not worth risking a court denying your motion to compel further answers on procedural grounds.

Decorative Scales of Justice in the CourtroomIn most practices areas, facts are king. The attorney who can discover and present the best “facts” will be the most persuasive when presenting their case to the judge or jury. However, some cases can be won in the law and motion department with a Motion for Summary Judgment and/or Summary Adjudication.  In these cases, the facts are less important than the law. If your case is one that you can win as a matter of law based on inconvertible facts (or the opponents admitted facts) and you believe that a Motion for Summary Judgment or a Motion for Summary Adjudication is appropriate, you need to develop a discovery plan specifically tailored to these motions.

Continue Reading Discovery and the Motion for Summary Judgment