Proving allegations are false is like peeling an onion. You need to have a specific discovery plan to attack the falsity of the claims.
Continue Reading Proving That the Opposing Parties Accusations are False–Is Like Peeling an Onion
When Money is Not Enough–The Request for “Drastic Sanctions”
Many motions for terminating sanctions are denied due to the papers being deficient due to a lack of a showing of abuse and prejudice.
Continue Reading When Money is Not Enough–The Request for “Drastic Sanctions”
Beware if Your Expert is Disqualified!!
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!!
It’s a New Year and there are New Discovery Laws
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
Where’s the Authority to Award Sanctions?
A party cannot rely solely on C.C.P. 2023.010 in bringing a motion for discovery sanctions.
Continue Reading Where’s the Authority to Award Sanctions?
What to do When the Deponent Refuses to Answer
A common area ob abuse occurs when attorneys instruct a witness not to answer a deposition question.
Continue Reading What to do When the Deponent Refuses to Answer
When Do I Have to Bring a Motion to Compel Written Discovery?
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?
Rule of Court Changes for Remote Depositions
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
“You Harm Your Client’s Interest When You Craft or Transmit Evasive Discovery Responses”
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].)”
Does the 45-Day Rule Apply when no Privilege Log was Served?
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?