Last week I received a phone call from an attorney asking what is the authority that says a party has the right to conduct discovery. I responded, “The Discovery Act!” Counsel stated that they needed more because a special master in their construction defect case refused to allow them to serve discovery and was demanding authority to prove that they had such a right. I thought it was such a basic concept in civil litigation that I was amazed that it even was an issue. Nonetheless, I went to the discovery treatises to find the answer.
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Plaintiff’s Rights Regarding an Independent Medical Examination
When plaintiff receives a demand for a physical examination he or she have 20 days after the service of the demand to serve their response. More likely than not, plaintiff counsel is going to allow the plaintiff to submit to the independent medical examination. If so, then there are a few things plaintiff counsel should be aware of.
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You Can Discover How Much Was Paid for Medical Treatment
Last year, the California Supreme Court in Howell v. Hamilton Meats & Provisions (2011) 52 C4th, 541 punched a hole in the collateral source rule by limiting plaintiff’s recovered damages to the actual economic loss incurred.
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I’ve Got This Doctor You Gotta See!
In most personal injury actions the plaintiff is served with a Notice for an Independent Medical Examination. It has become so commonplace that no one really thinks twice about the demand. However, there are a few requirements to this discovery device that defendant must comply with in order to perfect the request. Although obtaining an Independent Medical Examination may appear to be a simple process here are some interesting twists and turns that I have encountered that a defendant should consider before they serve their demand.
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NEW YEARS RESOLUTIONS–Statutory Changes to the Discovery Act
As a new year of litigation begins, there are a few significant changes to the discovery statutes regarding depositions and e-discovery that you should be aware of:
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CONSTRUCTION LAWYERS–YOU CAN NOW CHECK THE BOX!!
I am pleased to report that the California Judicial Council has approved for use Form Interrogatories–Construction Litigation (form DISC-005). The approved form will be on the Judicial Council website at http://www.courts.ca.gov/forms.htm in December and will become effective January 1, 2013.
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COITO v. SUPERIOR COURT–Is It Heading Back to the Supreme Court?
On August 14, 2012, Judge William A. Mayhew of Stanislaw Superior Court issued his Notice of Hearing on Issues Re Remand in the case of Debra Coito v. State of California. The order requested that the following issues to be briefed: (1) Does the absolute privilege apply to all or any part of the recorded witness interviews; (2) Does the Plaintiff conted that they can make a sufficient showing of unfair prejudice or injustice under C.C.P. Section 2018.030(b) such as to allow discovery as to any of the interviews that may be found to be not absolutely privileged; and (3) As to interrogatory 12.3, does the STATE contend that answering said interrogatory would result in opposing counsel taking undue advantage of the attorney for the STATE’s industry of efforts or that answering said interrogatory would reveal the attorney of the STATE’s tactics, impressions or evaluation of the case?
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GOVERNOR BROWN SIGNS BILL LIMITING DEPOSITIONS TO SEVEN HOURS:
On Monday, September 17, 2012, Governor Brown signed Assembly Bill 1875 which will limit depositions to one seven (7) hour day. This law conforms with the federal rules and becomes effective on January 1, 2013. The enactment of the legislation will add Section 2025.290 to the Code of Civil Procedure which will read as follows:
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Acted with Substantial Justification
Just wondering, but what does the phrase “acted with substantial justification” mean in the sanctions statute for motion to compel depo testimony, CCP 2025.480 (pdf)?
Does it mean the conduct that led the moving party to make the motion has to be substantially justified? Or does it mean the decision to make or oppose the motion to compel has to be substantially justified?
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All Answers Remain the Same
DILEMMA: It is 30 days before trial and you get the final responses to your propounded discovery. In reviewing responding party’s answers to supplemental interrogatories the verified response says “Responding party states that all answers to Interrogatories, Set No. One, that were previously served in this action remain the same.” Yet years have passed, records have been obtained, experts have been deposed and you know they’re lying. What do you do?
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