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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.

I went to the discovery treatises in order to provide the attorney with authority.  I reviewed Weil and Brown California Practice Guide Civil Procedure Before Trial (TRG 2013), California Civil Discovery (Hogan and Weber 2013) California Discovery Citations (TRG 2013) and California Civil Discovery Practice (CEB 2013).  The CEB treatise had the best discussion regarding a party’s right to discovery in a civil action.  The following is an excerpt from the book: Continue Reading You Have The Right To Conduct Discovery!!


 California Code of Civil Procedure §2025.290 (effective January 1, 2013) limits Non-Expert Depositions to 7 hours.  The section reads:

Unless otherwise stipulated to or ordered by the court, a deposition is limited to one day of seven hours. The court shall allow additional time if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.       Continue Reading Can You Take a Deposition in Seven Hours?

Southern Belle.jpgAs every lawyer is aware, a party may propound more than 35 specially prepared interrogatories or requests for admissions simply by attaching a Declaration of Necessity (pdf) pursuant to C.C.P. §2030.040 (pdf) and  C.C.P. §2033.040 (pdf) stating the reasons why they need more.  See C.C.P. §2030.050 (pdf) and C.C.P. §2033.050 (pdf).   However, when you receive more than 35 specially prepared interrogatories or requests for admissions, you should ask yourself the question “IS IT REALLY NECESSARY?” Continue Reading “I DECLARE, IT IS NECESSARY”

runners at starting line.jpgBay Area Insurance Coverage Attorney John Podesta brings us this “how to” article on insurance litigation. 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.


Your clients have been sued by their insurance company for Declaratory Relief. The insurer asserts that there is no coverage under your clients’ liability insurance policy for a claim made against them. In deciding how to proceed, there are a few things to remember in dealing with insurance litigation. First, the duty to defend is a legal question based upon the “potential” that the lawsuit against your client could result in damages covered by the insurance policy. Montrose Chemical Corp. v. Superior Court (1995) 6 Cal. 4th 287, 300 (pdf). For the duty to defend, therefore, think summary judgment, rather than trial. Second, for indemnity (actual coverage): is the carrier defending or not? With regard to indemnity, whether the insurance company is defending affects the burden of proof. Ultimately, the insured should be prepared to prove, in order to recover indemnity or settlement costs, that their liability is in fact covered by the insurance policy.

Continue Reading The First 120 Days of Insurance Litigation

Lawyer with Sword.jpgRequests for admissions may be used to (1) establish the truth of specified facts, (2) admit a legal conclusion, (3) determine a party’s opinion relating to a fact, (4) settle a matter in controversy, and  (5) admit the genuineness of documents.  See C.C.P. §2033.010 (pdf); Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶¶8:1288 – 8:1301.2; CEB California Civil Discovery Practice 4th Edition §§ 9:17 – 9:20.  However that is all good and dandy, but how to write a request for admission in order to obtain effective evidence or to set up a cost of proof sanction is difficult.

C.C.P. §2033.060 (pdf)  sets forth the basic tenants as to how a request for admission must be drafted:

  • Each request must be numbered consecutively.  C.C.P. §2033.060(a)
  • The first paragraph immediately shall state he identity of the party requesting the admissions, the set number, and the identity of the responding party.  C.C.P. §2033.060(b)
  • Each request shall be “separately set forth.”  C.C.P. § 2033.060(c)
  • Each request shall be “full and complete in and of itself” and there shall be no preface or instructions.  C.C.P. §2033.060(d)
  • No carry over definitions.  C.C.P. §2033.060(e)
  • No subparts or “compound, conjunctive or disjunctive” requests.   C.C.P. §2033.060(f)
  • If you are requesting an admission of the genuineness of documents, then they must be attached.  C.C.P. §2033.060(g)

The discovery treatises also give some helpful advice.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), §8:1287.1 states:

Keep your RFA’s as simple as possible so there is no room for denial!  This will avoid objections on the ground of ‘compound and conjunctive.

Keep in mind that any admission obtained will probably be construed narrowly.  So, make sure there is no room for quibbling as to what was admitted!

CEB, California Civil Discovery Practice (4th ed. 2010) §9:17 advises that because the court has broad discretion in determining admissibility and relevance of evidence and scope and effect of an admission the

. . . RFA’s must be clear concise and unambiguous.  See Fredericks v. Kontos Indus., Inc. (1987) 189 CA 3d 272, 277 (pdf) (if admission is susceptible to more than one meaning, trial court must exercise its discretion to determine scope and effect of admission ‘so that it accurately reflects what facts are admitted in the light of other evidence’.  Trial courts may consider parol evidence that explains an admission but cannot use parol evidence to contradict the plain meaning of a response to an RFA; if a response to an RFA is unambiguous, the matter admitted is conclusively established.  Monroy v. City of Los Angeles (2008) 164 CA4th 248, 260 (pdf)

However, the best advice I was ever given was when I was admonished by a Judge.  During a Case Management Conference the Judge asked me what were the jury instructions I was going to use at trial.  I responded “Your Honor we don’t even have a trial date yet.”  The Judge replied “Then how do you know what discovery you need to prove your case?”   I went back to my office and whined to our seasoned trial attorney.  He had no sympathy for me and said “The Judge is right. Go look at the jury instructions and figure out your case.”  With my tail between my legs I went to the library and looked at jury instructions for the first time.  They were amazing.  They were one page road maps as to what I had to prove.  Right then and there I started using requests for admissions.

As an example, using California Jury Instruction 1201 Titled Strict Liability—Manufacturing Defect—Essential Factual Elements (pdf), I would write my requests as follows:

Request # 1:    Admit that [name of defendant] [manufactured/ distributed/ sold] the [product].

Request #2:     Admit that the [product] contained a manufacturing defect when it left [name of  defendant]’s possession.

Request #3:     Admit that [name of plaintiff] was harmed while using the [product] in a reasonably foreseeable way. 

Request #4:     Admit that the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm.

I would then serve these Requests for Admissions with Form Interrogatory #17.1 and a Request for Production of Documents for “all documents listed in your answers to Form Interrogatory 17.1(d).”    The foundation of my discovery plan was now set and I was in a position to receive effective evidence or, in the alternative, cost of proof sanctions. I would then serve these Requests for Admissions with Form Interrogatory #17.1 and a Request for Production of Documents for “all documents listed in your answers to Form Interrogatory 17.1(d).”    The foundation of my discovery plan was now set and I was in a position to receive effective evidence or, in the alternative, cost of proof sanctions.

arguing lawyers.jpgYou are within fifty days of trial and you are in receipt of defendant’s expert witness disclosure.  She has three experts and you have three experts.  All six of them need to be deposed in less than 35 days and you haven’t yet sent out a deposition notice.  You pick up the phone and meet and confer with opposing counsel to select dates.  During the conversation the attorney for the defendant states very adamantly

My expert will not be ready to testify until your expert testifies. Besides you are the plaintiff and you have to go first!  

Heard this before?  I have and there are some significant problems with defense counsel’s position. 

Continue Reading My Experts Go Last!

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Over the years friends and colleagues have called me up asking for a quick answer on a discovery question that they have. The phone call usually went like this “I want to get plaintiff’s phone records, how do I do that?” or “I forgot to disclose experts, am I too late?” or “They want to send my client to a psychiatrist. Can I object?” I know the answers to these questions which are “Yes,” “No” and “Yes.” However, to get the statutory authority, I rely on the charts I have prepared and published over the last 18 years. The California Civil Discovery–Charts for the Everyday Litigator ” (pdf)  was recently updated and now available to you for download. 

Hope it helps!!


Handshake.jpgA useful tool that is too often overlooked is stipulations. Discovery is a very expensive process, especially in complex cases, but there are ways to streamline the process and be more cost effective.  Below are some of the stipulations that you may want to consider:

             Agree on Service:      Agree to service by fax (pdf). [C.C.P. §1013(e) and (f)]   Get everyone’s e-mail address and agree to correspond by E-Mail Service (pdf).  Better yet, agree to accept e-mail service of all pleadings and other documents except for motions.  As for motions (pdf), consider agreeing that the moving party only need serve the full moving papers on the party to which the motion is being directed to.   All other parties are served with the notice of motion only with the option of requesting a full set of moving papers.  This procedure, commonly used in asbestos litigation, saves hundreds if not thousands of dollars on copying costs and service charges in multi-party litigation. 

Continue Reading Discovery Plans Part 2: Are Stipulations Part of Your Discovery Plan?

Map GPS.jpgAs a discovery referee, I normally come into cases when there already is a problem. Either discovery in the case is out of control, or the antagonism among counsel is so great that the Law and Motion Judge is done dealing with the parties. In many instances, I see an all out war between counsel, with discovery being used as a weapon. There is no rhyme or reason to the 105 special interrogatories that were served, the 200 categories of documents being demanded or the 20 depositions that have been noticed. The meet and confer process has broken down into a rampage of insults. Yet nobody has bothered asking the demanding party the fundamental question “Why do you need this?”  When that question is finally posed by me, too frequently that counsel cannot answer the question. In such circumstances, it is clear to me that the attorneys have no idea what direction they want to case to proceed, no plan of attack and no idea what they are trying to accomplish. In other words–No Discovery Plan!

Continue Reading Do You Have a Discovery Plan?