A party cannot rely solely on C.C.P. 2023.010 in bringing a motion for discovery sanctions.
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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.
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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
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.
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“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.”
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WHEN YOU GET BOMBARDED WITH DISCOVERY…
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.
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What Lawyers are Getting Wrong in Virtual Depositions
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.
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Rebuttal Expert Witnesses—Do you know how to use them?
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.
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So, You Forgot to Serve Your Expert Disclosure – Now What?
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.
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