Julie Lewis, President, CEO and Founder of Digital Mountain, has over 20 years of experience working in the high technology industry and is a frequent speaker on electronic discovery, computer forensics and cybersecurity. After working on over 1,000 computer forensics and e-discovery cases for over a decade, Julie has provided us with some simple tips for successful eDiscovery planning:
A plaintiff counsel writes in asking for advice:
“Today is July 7th. Trial is July 31. Discovery cut-off was July 1 and expert discovery closes on July 16th. Well, my client sought additional treatment on June 25thwith a neck, back and spine specialist. The results of the visit were provided to me on June 26th and I immediately mailed the results to opposing counsel that day. Now opposing counsel is stating the discovery is after the cutoff and inadmissible and the doctor can’t testify because expert disclosure has passed. I’m really worried about whether I will be able to use the evidence and if so, how I will be able to use the evidence?”
Opposing counsel is blowing smoke at this young lawyer.
The title of this blog is a quote from the most basic tenant of the 2016 Discovery Act found in Code of Civil Procedure Section 2017.010 titled Matters Subject to Discovery which reads:
“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” [Emphasis added]
The courts and the treatises liberally construe this statute and a party’s right to obtain the identity and location of witnesses.
Unlike Federal Rule Civil Procedure 26(e)(1) – (2), California law does not impose a continuing duty on a party to supplement their interrogatory or document responses. Biles v. Exxon Mobil Corp. (2004) 124 CA 4th 1315. Instead, the California Discovery Act has two statutes, C.C.P. §2030.070 and C.C.P. § 2031.050, that allow the propounding party to ask for updated information “bearing on answers already made” and “later acquired or discovered documents, tangible things, land or other property.”
Several times per month I receive questions from attorneys regarding a discovery dilemma. Mostly the questions offer a novel twist on basic discovery. However, this latest query was quirkier than most and raised some interesting issues and misconceptions, so I thought I would share it with you. It went like this:
I served written discovery on a cross-defendant in a case, we are one of the defendants. Cross-defendant (represented by, the plaintiff’s counsel) has appeared in this case by way of demurrer. Cross-Defendant has refused to answer for the following reasons, (1) my clients are not parties to the cross-complaint so therefore we cannot propound discovery; (2) the court sustained the demurrer with leave to amend and the amended cross-complaint will be filed shortly by the cross-complainant; and (3) the cross-defendant lives in Europe and I need to go through the Hague Convention. I don’t think any of these are legitimate reasons for not responding to discovery.
At the 22nd Annual West Coast Casualty Seminar, Plaintiff counsel Michael Kennedy, General Contractor Counsel Matthew Hawk, Subcontractor Counsel Brian Sanders, Claims Manager James Rzpecki and I presented a new protocol for how to litigate construction defect cases. This new protocol is in compliance with the Code of Civil Procedure as well as the current case law. But, more importantly these new Case Management Orders address the concerns that the parties have with the current process and provides them with admissible evidence in order to adequately evaluate their case and be prepared to have a meaningful mediation within six months of the litigation.…
As a mediator, there is always a case that you question yourself as to what you could you could have done differently in order to resolve the matter. My case involved a personal injury case. It appeared to be straightforward, as the defendant had admitted liability and the plaintiff ended up having surgery allegedly because of the accident. Unfortunately, the mediation process went sideways before the mediation even began. While introducing myself to the defense attorney who had arrived first, he said
I’d like to get to the point and save some time and money. If they aren’t willing to take (25% of the cost of the surgery), then let’s end this and have a nice lunch.
If you perform a Lexis search using the words “Special Master” in the Code of Civil Procedure you will find “no results.” This is because there is no statutory authority for such an appointment. Yet, in the area of Construction Litigation the parties regularly stipulate and the courts appoint a Special Master to handle the case management, discovery rulings and settlement conferences under a Case Management Order.
John Podesta, an insurance coverage attorney in San Francisco, brings us his perspective on why the Form Interrogatories for Construction Defect should be used. John has handled hundreds of coverage cases involving Construction litigation and other complex matters for over twenty years. He is a nationally known speaker on Insurance Coverage issues in Construction and has written several articles on the subject. He is also the author
of the insurance Interrogatory 304.1 of Construction Litigation Form Interrogatories.
It is generally recognized that construction defect cases are some of the most expensive, and complicated, cases being litigated in California. I have personally been involved in cases with more than 75 payors contributing to a settlement, including contractors, insurers, and sureties. I have witnessed them from the beginning of the modern Special Master programs in the 1980’s through the single assignment Special Masters (both mediator and case management/discovery referee) and the dual reference (where the case manager/discovery referee and the mediator are separated) and cases with no outside supervision and the case is handled per the CCP. In all these cases, the same question is asked by the carriers: “How can we get these cases evaluated and resolved quicker and less expensively?” And the related question: “If this is a case that needs to be tried how can we get to that decision point as soon as possible?”…