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
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
Sometimes, when you follow the rules regarding the expert witness demand and the initial expert witness disclosure and declaration and are now in receipt of opposing party’s expert disclosure, you find that the opposing party plans to call experts at trial in a subject area which you assumed wouldn’t require expert testimony, or that you hadn’t anticipated. If you didn’t disclose experts on the subject, you can serve a Supplemental Expert Disclosure within 20 days of the exchange of expert witness disclosure.
Continue Reading I didn’t know I needed an expert on that…
If a party has timely served a Demand for Simultaneous Exchange of Expert Trial Witness Information pursuant to Code of Civil Procedure section 2034.210, then “all parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand.”C.C.P. §2034.260(a). Unless there is a court order specifying otherwise, that date for the simultaneous exchange is 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date. C.C.P. §2034.230(b).
Continue Reading 50 Days Before Trial—It’s Expert Disclosure Time
The biggest burden in bringing motions to compel further responses is the preparation of the separate statement of items in dispute pursuant to CRC, Rule 3.1345. In my blogs and at seminars, I have advised parties to prepare their meet and confer letters in the format of a separate statement. See my blog “EXHIBIT A—The Meet and Confer Letter.” As a Discovery Referee I have required parties to exchange Discovery in Word format. I find electronic forms for Discovery, especially in Word, are helpful for two reasons: (1) the parties can meet and confer using the “Track Changes” function in Word and hopefully agree on the modifications to the propounded written Discovery, and (2) parties can easily prepare the separate statement of items in dispute if a motion needs to be filed. This electronic Discovery process takes out the grunt work of having to retype the interrogatories, requests for admissions and requests for documents, as well as their responses when preparing or responding to the separate statement when only a hard copy was served.
Assume you receive the following response to your Requests for Production of Documents:
Responding party hereby incorporates its general objections as if fully stated herein. Responding party objects to this request to the extent it seeks information protected from disclosure by the attorney-client privilege and/or work product doctrine, or any other applicable privilege. Responding party objects as it invades their and third parties’ right of privacy. Responding party objects that the request fails to specifically describe each individual item sought or reasonably particularize each category of item sought. Responding party objects that it is unduly burdensome and overbroad. Responding party objects to this request as it does not seek relevant documents or documents reasonably calculated to the discovery of admissible evidence. Responding party objects that plaintiff has equal access to these documents. Responding party objects that the request seeks documents already in plaintiff’s possession custody or control. Notwithstanding said objections, no documents.
In reviewing the response, it is likely you are focusing in on the fact that there are garbage objections to your request and that you weren’t provided a privilege log. However, there is another issue that you should take very seriously—the document response is not in compliance with California Code of Civil Procedure section 2031.230.
Continue Reading Nail Down Whether the Documents You are Seeking ever Existed and Where They are Now
The greatest discovery abuses come from responses to Requests for Production of Documents. Many responses contain a myriad of garbage objections, fail to contain a privilege log, along with producing documents that are not organized by category. Due to the responding party’s failure to comply with Codes of Civil Procedure § 2031.220, §2031.230, §2031.2400 and §2031.280, a motion to compel further responses and production of documents is the most common motion on the court’s docket. It is also the most time-consuming motion to not only prepare, but for the court to rule on.
On January 1, 2020, Code of Civil Procedure §2023.050 became effective which imposes mandatory sanctions for motions regarding Requests for Production of Documents. This new statute requires the court to impose mandatory sanctions on motions involving requests for production of documents. This sets up a party’s ability to bring issue, evidence and terminating sanctions as there will be an adjudication of prior discovery abuse.
Continue Reading New Discovery Sanction Regarding Requests for Production of Documents
There were three changes to the Discovery Act that became effective on January 1st, 2020 which can be found in Code of Civil Procedure sections 2031.280, 2016.090 and 2023.050. This blog will discuss the change to C.C.P. §2031.280 and its significance.
California Code of Civil Procedure § 2031.280 titled Form in which documents to be produced; Form for producing electronically stored information; Translation of data subdivision (a) states as follows:
Old Statute:
(a) Any documents produced in response to a demand for inspection, copying, testing, or sampling shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand.
New Statute:
(a) Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.
Difference:
Responding party can no longer produce documents kept in the “usual course of business. “
Continue Reading Make Sure You are Aware of the New Document Response Requirements
As stated in the blog “It’s Not a Discovery Device, But…”, a Demand for Bill of Particulars is NOT a discovery device, but an extension of the complaint or a cross-complaint [complaint]. Unlike interrogatories and deposition testimonies, a Bill of Particulars is conclusive as to the items and amounts claimed and no other evidence is admissible at trial. More importantly, if the court finds that any of the line items are deficient it can strike the entry and preclude plaintiff/cross-complainant [plaintiff] from proving the debt is owed.