Plaintiff employment attorneys Karine Bohbot and Elizabeth Riles from the Law Offices of Bohbot and Riles in Oakland, California wrote a great article in Plaintiff Magazine titled Early Punitive Damages Discovery—Let’s give it a try!”  The article gives strategic advice on how to obtain early punitive damage discovery.  Here are some excerpts from their article:



One aspect of a plaintiff ’s employment case that often does not get the attention or work it needs is punitive damages. The law provides for punitive damages in most intentional tort actions, such as personal injury cases for assault and battery, and for employment discrimination actions brought under the Fair Employment and Housing Act and similar federal statutes, when the plaintiff establishes that the conduct of a defendant was malicious or in total disregard of the plaintiff ’s rights. (See Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 220-222 (pdf); Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1540 (pdf);Monge v. Superior Court (1986) 176 Cal.App.3d 503, 509 (pdf); lackner v. North (2006) 135 Cal.App.4th 1188, 1212 (pdf)  Once the jury has found that the plaintiff has met his or her burden on this point, which occurs in the first phase of the trial, the plaintiff is then permitted to move on to the second phase of the trial – the punitive phase. It is in this phase that the plaintiff has the opportunity, and bur- den, to set forth evidence of the defendant’s financial condition and net worth in support of the amount of punitive damages being sought by the plaintiff.

Plaintiffs’ attorneys understand that the standard to prove punitive damages, clear and convincing evidence, is a high one. Moreover, many plaintiffs’ attorneys have either heard from the court or the defendant that they are not permitted discovery into the financial status or condition of the defendant to meet this burden until after liability and malice have been proven to a jury. Unfortunately, this timing often leaves little time for a plaintiff ’s attorney to analyze the financial information received and prepare for the common arguments used to lower a punitive damage award, i.e., poverty, large payables, etc. As plaintiffs’ attorneys, the most important thing that we can do is place our client in the best position possible for settlement, trial or anything else. This timing prevents us from accomplishing that goal.


Bringing a motion to secure this discovery prior to trial, is the most important step a plaintiff ’s attorney can take in order to ensure she has placed herself and her client in the best position to secure a punitive damages award at trial. The burden warranting permission from the court to obtain the defendant’s financial records and information is a high one, but it is
 not an insurmountable one. Bringing a motion for discovery of financial records during the discovery stage is by far the best way to ensure, or at least greatly increase the chances, that you will be permitted to obtain these records in time.  So what do you do?

Civil Code section 3294 (pdf) provides the vehicle for plaintiffs to bring a motion seeking the court’s permission to conduct discovery into financial records of the defendants that might otherwise be prohibited by law.  If the plaintiff is able to establish, through affidavits and other evidence, that he or she “has established that there is a substantial probability that [he or she] will prevail on the claim for punitive damages,” the Court is within its right to grant the discovery.  (See Civ. Code, § 3295(c) (pdf); Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 757 (pdf) The court’s role in making this determination is to weigh the evidence presented by both sides and “simply . . . determine whether there is a “strong likelihood” or whether it is “very likely” that the plaintiff will prevail on [his or her] claim for punitive damages against the defendants.” (Id. at 759; Guardado v. Superior Court (2008) 163 Cal.App.4th 91, 98 (pdf).) This “weighing is not the traditional fact- finding process and shall not be considered to be a determination on the merits of the claim or any defense thereto.” (Id., at 758; Guardado, 163 Cal.App.4th at 98.) [emphasis added]

Therefore, your first step is to evaluate your claims and determine whether they provide for punitive damages. If they do, then your next step is to carefully evaluate your facts to determine whether a jury could well find that the defendant’s conduct towards your client was malicious or in total disregard of his or her rights. Next, you will need to conduct the necessary discovery to secure the evidence to support these facts. This could involve getting declarations, taking depositions and fighting discovery battles related to other claims of discrimination made against the defendant. As is discussed more fully below, this evidence can be vital to this kind of motion. Once you have taken these steps, if you believe sufficient facts do or even may support a finding of malice, then bring your motion.

The motion is not a complicated one, but should include a detailed factual analysis, with special emphasis on those facts that support a finding of malice against the defendant. You should include deposition testimony, exhibits and declarations of witnesses that provide supporting facts for the intentional torts or discrimination that you are claiming.  [emphasis added]


The significance of bringing this motion well before trial is two-fold. The first reason, and the most obvious, is that you can actually succeed and obtain financial information in preparation for trial. The second reason, which is less obvious but just as significant, is that bringing this motion early places you in a better position once you do get to the punitive phase of your trial. As we have found time and again, just having brought the motion, even when it is denied, you have placed yourself and your client in the best possible position for seeking and getting a reasonable continuance at trial prior to the punitive phase to obtain the records you were denied by way of this motion. Judges will tend to be more willing to place a trial, and thus a jury, “on hold” for a reasonable amount of time to permit discovery of financial records upon knowing that an effort to obtain the records had been made during discovery and denied.

Finally, we are sure that many plaintiffs’ attorneys have had the experience where the defendant produces a less than well-informed PMK at the punitive phase in response to the trial subpoena. A successful motion made during the discovery phase will keep this tactic on the part of the defense from being as effective. The financial records produced can be used to get the necessary information you need from the witness and make the defendant look ill prepared, further angering the jury. This is much harder to do if you have failed to seek those records through discovery. We make it our practice to bring this kind of motion whenever we believe we have sufficient facts to lead a jury to find malice and thus award punitive damages. So far, we have been successful.

Thus, the lesson to take away here is . . . bring that motion!

Even if you are not totally certain you will succeed, bring it! Even if you think the facts are not as strong as you would like them to be, bring it! The positives in bringing this type of motion far outweigh the negatives. You will be better prepared and better equipped to ask for and likely obtain a much larger punitive damage award when the time comes. And don’t we all want that kind of result!

You can find the full article in the April edition of Plaintiff Magazine.