Katherine Gallo

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Katherine Gallo is an expert in complex discovery issues and is actively involved in Alternative Dispute Resolution (ADR) as a Discovery Referee, Mediator and Arbitrator in Northern California since 1994. Ms. Gallo is known for her extensive discovery seminars, in house discovery training, and go-to blog on pre-trial discovery. Since 2010, she has authored a on discovery titled www.resolvingdiscoverydisputes.com.

Ms. Gallo has served as a court appointed or party selected private Discovery Referee or Special Master in over 250 hotly litigated matters concerning complex issues in business, construction defect (including lines and construction operations losses), insurance, employment (including wrongful termination, discrimination, harassment, and wage and hour claims), elder abuse, real property (including eminent domain, easements, and commissions), Lemon Law, personal injury and family law, many with multiple party litigants, including class actions. Well known to the judiciary, her court appointments in complex matters have come from the Superior Courts throughout the State.

Ms. Gallo has mediated or acted as a pro tem settlement judge in over 500 matters with a 90% settlement rate. Ms. Gallo takes pride in accomplishing the parties’ and the courts’ objectives with regard to impartiality, timeliness and accuracy.

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In this blog I have asked that lawyers write in if there was a topic they would like me to address.  I have received many requests over the years and the next couple of blogs will be responding to some of these requests.  Here is the first one.

“I noticed a few things regarding privilege logs. 1) litigators are not sending them. 2) my opposing counsel tends to argue that there is no obligation to prepare a privilege log unless it is demanded by the requesting party and I don’t think that’s right – I think it’s an affirmative duty arising when someone withholds documents under an objection – is that right?”

A party’s ability to request documents from the other side is one of most important tools in any discovery plan.  Depositions are useful but memories can fade, and witnesses’ recollections can be wrong. Interrogatories and requests for admission are responded by the attorney and are usually answered to support a claim or defense.  However, as it has been said over the years, “The document speaks for itself.”  The majority of cases turn on whether or not there are documents, photos or other tangible items, prepared contemporaneously, that support a given position.  This makes not only the document production important, but the response is just as important,  as you will want to nail down whether any documents actually exist that relate to a particular topic of inquiry.

Continue Reading Aren’t I Entitled to a Privilege Log?

Effective January 1, 2013 and subject to certain exceptions, the duration of a witness deposition was limited to seven hours of total testimony. (CCP §2025.290(a).) The limitation brought the California statute consistent with existing federal law, which has a similar seven-hour rule. (See FRCP Rule 30(d)(1))

CCP §2025.290(b) sets forth six circumstances where the seven-hour limit does not apply–by stipulation, expert witnesses, complex cases, employment cases, person most knowledgeable depositions, and a new party to case when the deposition has already concluded.

However, the seven-hour rule is not entirely rigid, and it does not give the court unfettered discretion in shaping its application.

CCP §2025.290 is also consistent with FRCP Rule 30(d)(1) as it states:

The court SHALL allow additional time, beyond any limits, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. [emphasis added]

In Certaineed Corp. v. Superior Court (2014) 222 CA4th 1053, the Second District Court of Appeal found that:

“The court may order extended time for depositions beyond the limits in CCP §2025.290(a), including the 2-day limit in CCP §2025.290(b)(3), and MUST DO SO if additional time is needed to fairly examine the deponent and no other reason exists to limit the deposition.” California Civil Discovery Practice (CEB 2018) [Emphasis added]

To deny a party the right to “fairly examine the deponent” defeats the basic purpose of discovery which is to“educate the parties concerning their claims and defenses” and to “avoid surprise” at trial. See Emerson Electric Co. v. Superior Court (1997) 16 C4th 1101, 1107 citing Greyhound Corp v Superior Court (1961) 56 C2d 355, 376] and Fairmont Ins. Co. v Superior Court (2000) 22 C4th 245, 253

The purpose of discovery is to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1 citing Greyhound Corp. v. Superior Court (1961) 55 C.2d. 335, 376.

Serving “[a]ppropriate written interrogatories are one of the means to accomplish the general goals of the discovery process designed to facilitate a fair trial.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 CA4th 377, 389)

“Interrogatories expedite the resolution of lawsuits … [by detecting] sham claims and defenses … [and] may be employed to support a motion for summary judgment or a motion to specify those issues which are without substantial controversy.”  Deyo v. Kilbourne (1978) 84 CA3d 771, 779

Continue Reading Why You Need to Bring that Motion To Compel Further Responses to Interrogatories

In the case of Victalic Company v American Home Assurance Company the First District Court of Appeal made it very clear that denials to Requests for Admissions are inadmissible.   Here is the court’s reasoning starting at page 23 of the published opinion:

Gonsalves v. Li (2015) 232 Cal.App.4th 1406 (Gonsalves) involved an automobile accident. Plaintiff called defendant as an adverse witness and asked about his qualified denials of plaintiff’s RFAs that he was responsible for the accident. And in closing argument, plaintiff emphasized that the denials were evidence defendant refused to take responsibility for plaintiff’s injuries. (Id. at p. 1413.) The jury returned a verdict for plaintiff for $1,208,642.86. (Id. at p. 1411.) Our colleagues in Division Five reversed, holding it was error for the trial court to allow questions about RFAs.

Continue Reading Denials to Requests for Admissions are NOT Admissible

 

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.)

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.

Continue Reading DO YOU KNOW WHAT YOUR OBLIGATIONS ARE IN RESPONDING TO WRITTEN 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