iStock_000012781059_SmallUnlike 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.”

Continue Reading Are You Following Up on Your Opponent’s Discovery Responses?

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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.

Continue Reading DISCOVERY GAMES AND MISCONCEPTIONS – Are These Objections Legitimate?

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Recently I was contacted to help on a party’s Motion to Compel Further Responses to Form Interrogatories, Requests for Production of Documents, and Requests for Admissions. In viewing opposing counsel’s responses to the discovery, I gazed upon the General Response and Objections preamble in absolute astonishment.  It read as follows:

Continue Reading Why You Need to Bring a Motion to Strike General Objections

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ANSWER:     A fictional document. A non-existent objection neither based in statutory authority nor found in case law. A statement by a party during the discovery phase that they will neither be held to the Code of Civil Procedure nor the rules of evidence.

In my years as a discovery referee, I have found that lawyers have gotten into the bad habit of inserting a preamble in their responses to interrogatories, requests for production and requests for admissions. These preambles often state the obvious as to what their rights are as responding parties. However, many times these preambles state general objections to the entirety of the propounded discovery and insert rights that are contrary to the obligations of the Discovery Act, the evidence code and current case law. Even though several interrogatories, requests for documents and request for admissions may be objectionable on the same ground they may not be objected to as a group. See Hogan and Weber, California Civil Discovery (2d. ed 2009) §51 Continue Reading What is a General Objection?

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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.

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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?Continue Reading Why Every Insurance Carrier Should Insist That The New Construction Form Interrogatories Be Used

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Somewhere in the back of your mind you are aware that discovery and Motions for Summary Judgment deadlines are looming. Yet, you really don’t pay attention to them until they are upon us usually around day 45 when you start trying to schedule experts. That is when you realize there are not enough hours in the day and days in the week. Unless you have a case that is a simple slip and fall or a fender bender, the last 100 days before trial can be daunting. Throw in a Motion for Summary Judgment or Summary Adjudication into the mix and you’re swamped. Then there is the ultimate question you ask yourself, “When am I going to find time to prepare for trial.”

The Code of Civil Procedure timeline regarding deadlines for expert disclosure, close of discovery and the last day discovery motions can be heard is demonstrated below.  Seeing it scheduled in black and white is kind of scary. Continue Reading Discovery Plan Part 4 — The Year Before Trial

Referee Time Out.jpgLast November I received the following e-mail:

Since courts are so overwhelmed and setting dates for hearing is now running 6 months or longer, how does one do motions to compel further responses to interrogatories in a meaningful way? I booked the first available date with the court, but it is not until next June and I need the responses in order to know what documents to request. Any ideas? 

It is unfortunate that the California budget crisis has so imploded civil litigation in our courts. Despite the fact that discovery is the heart and soul or your case and you are entitled to compliance with your discovery requests; law and motion departments typically give discovery motions the lowest priority on their calendar. So, what do you do? Continue Reading Is It Time to Appoint a Discovery Referee?

handshake 2.jpgIn many cases mediation is the most cost-efficient and effective method of resolving a case. Often, litigants can save a lot of money and time when mediation is held after first tier discovery has been completed, once the core facts are determined that circumscribe the dispute. In order to facilitate early resolution many courts have implemented mediation programs and asked mediators to volunteer their time. Unfortunately, many mediators are becoming discouraged with these programs because many times the parties are not prepared.

Speaking to a number of Bay Area mediators who participate in the court ordered mediation panels, they have uniformly identified that the majority of the court ordered mediation cases are breach of contract and personal injury cases.

It was a consensus that, whether the information is obtained through investigation, informal exchange of information or formal discovery, parties need to know the absolute basics of their case so that they can intelligently mediate.  Mediation is not the time to expect an opponent to “educate” you of the basic understanding of your case.   This may seem to be obvious, but in hearing the stories from the mediators it was surprising on how unprepared many parties are.  Continue Reading DISCOVERY PLAN PART 3–Are You Ready for Mediation?

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Many times when a plaintiff answers Form Interrogatory 6.4, responds to requests for production of medical bills or prepares a settlement demand, they use the total medical bill without any regard to if the bill has been reduced or paid by another.  This is because of the collateral source.  The collateral source rule, which is a rule of evidence, states that Continue Reading You Can Discover How Much Was Paid for Medical Treatment