Most cases rise and fall on whether there is documentary evidence supporting a claim or defense. Thus, the most important discovery device in a litigator’s  toolbox  is the ability to request documents pursuant to CCP 2031.210 et seq. Unfortunately, most lawyers fail to properly respond and produce documents which leads to the ever so popular Motion to Compel Further Responses and Production of Documents

Patrick Nolan’s article “How the crafty defense lawyer hides things by avoiding the details in requests for production of documents — Using the teeth of the statute to get the most out of RFPs”  gives an eye opening tutorial on how to deal with a response that is not as straightforward as it appears.  Below is his article.

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I was a high school teacher in East LA for 13 years before I became an attorney, and many of the lessons I learned as a teacher about human nature have served me well as an attorney. For one thing, interacting with a jury is much like interacting with a class of students. I taught at a continuation school in Boyle Heights, so my job was to take ideas that could be slightly confusing and make them as simple as possible for a group of people who often were not that bright, and actually did not want to be there in the first place. In my experience, that describes many of the jurors I have examined on voir dire at trial.

Another lesson I have learned applies more to conducting discovery with opposing counsel rather than examining jurors. I have learned that defense attorneys will produce only as much as you insist upon from them. They are under no obligation to give you more than you insist upon. In fact, it is in their interest to do the opposite. And like the underperforming homeboy in my classroom, they will give you the bare minimum … if you let them get away with it.

Years ago when I was learning effective discovery techniques from my then-bosses/now-partners Mark and Ernie Algorri, they taught me a very basic rule in reviewing defense responses to Request for Production of Documents:

“All the tools you need were given to you by the Legislature,” the Brothers Algorri told me.

They explained how defense attorneys will telegraph their intent to withhold documents by purposely failing to include in their responses the magic language required by Code of Civil Procedure Sections 2031,220 et seq, which deals with responses to Requests for Production of Documents (“RFPs”.)

Certainly, defense attorneys have other less ethical ways to keep the dogged plaintiff’s attorney off the scent of damaging material. An unscrupulous defense attorney may even risk his career by doing something as outrageous as shredding damaging documents. But most defense attorneys who value their license over one lawsuit will provide meaningful responses and produce the responsive documents if their feet are held to the fire. And that fire in RFP responses is the language required by the Code of Civil Procedure. RFP responses that do not employ the required language are the legal equivalent to a defense attorney keeping his fingers crossed behind his back while he provides you the responses.

Ask the following questions, and you can effectively use the tools the Legislature provided when drafting and enacting in the Code of Civil Procedure.

Are they complying in full or in part?

Look first to the words required by C.C.P. Section 2031.220. If the words required by this section are not in the defendant’s responses, you immediately know whether defense is giving you everything you requested or not. Why? Because it literally requires them to tell you if they are giving you everything you requested or not. C.C.P. §2031.220 states that the responding party must tell you whether your inspection “will be allowed in whole or in part.” It requires them to tell you “that all the documents that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” If you do not get those magic words – that all the documents in their custody or control are included – you know they are holding out on something.

However, the crafty defense lawyer will instead attempt to distract you from what you seek by instead saying something deceptively satiating like: “Responding party complies with this request by producing Exhibits A, B and C.”   But do you see what they just did there?   They did not say they were complying in full. And they did not say they were producing all the documents in their custody and control.

If you are tearing through the defendant’s discovery responses to see if they gave you what you asked for, it is easy to be fooled by the illusionist’s misdirection. You immediately start flipping to the exhibits to see what presents are under the tree. But without the language required by the Code, the gifts are usually socks and underwear rather than those shiny incriminating incident reports and witness statements you had been hoping for.

Obviously, you now have to write a meet and confer letter to defense in order to get the required language. Writing a letter demanding that defense put specific words in their responses can make you seem a little bit like Rain Man demanding his favorite K-Mart clothes. But keep in mind, 90% of the time that they fail to use the language, they know what they are doing and have done it intentionally. Nonetheless, just like when I was cajoling gangsters to participate in a classroom exercise, honey tends to elicit more cooperation than vinegar. Sure I had their probation officers’ phone numbers on speed dial, in the same way that we can all get tough and file motions to compel. But of course that brings everything to a screeching halt until the authorities arrive.

So I try to keep my meet and confer letters civil and good-natured. Keep in mind, everything you write could end up being read by the judge on your case. So write with your judge in mind as much as opposing counsel.  In my meet and confer letters, I blame my need for Code-compliant language not on any distrust in their responses (heaven forbid!), but instead on my own (feigned) obsessive/compulsive disorder driven by my Rain Man-esque compulsion with the Code of Civil Procedure. Or like Tom Cruise’s character asking Jack Nicholson for a copy of Santiago’s transfer order in A Few Good Men, I ask defense to “just throw in that required language for the file” and we can move on to bigger issues. Funny how I usually receive further responses with the magic language … and more exhibits attached.

Statement of inability to comply … is not enough

On the other hand, if the defense attorney chooses not to give you anything, she will say something like “Responding party is unable to comply with this request because no responsive documents are in their custody or control.” Again, this language sounds like the official end of the road in obtaining the documents you want. It even sounds like they are complying with the Code; but they are not.

The Legislature anticipated this ruse as well. So when the responding party has nothing to produce, C.C.P. Section 2031.230 requires them to tell you why. Per the Code, when they cannot provide you any responsive documents, they must state:

[W]hether the inability to comply is because the particular item has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession custody or control of the responding party. (C.C.P. §2031.230)

This information can be very illuminating. If you are litigating, for example, a routine slip-and-fall case in a supermarket, and defense is claiming they do not have the surveillance video of your client falling on their premises, this is where they will have to admit that they destroyed the video, or that it is recorded over every 48 hours, or whatever other permutation of spoliation of evidence they have employed. Armed with that information, you get to use CACI 204, the jury instruction that expressly allows jurors to infer that the evidence they destroyed would have been unfavorable for the defendant.

Judges occasionally fail to understand the import of this required language as well. In one case in which my elderly client had fallen due to a recently mopped floor in a fast food restaurant, defense counsel had responded to my request for surveillance video by stating that it was “unable to produce the requested documents because no such documents exist.” The elderly client had undergone two back surgeries as a result of the fall. The surveillance video would have been particularly damning to the defense because it would have not only shown the absence of any warnings of the wet floor, but it would have also shown the employee literally asking my client to sign a release while he was still on the ground grimacing in pain.

The judge at the hearing on my motion to compel further responses said in frustration, “Mr. Nolan, I can’t shake them by the ankles and force them to produce something that doesn’t exist!” But by drawing the court’s attention to the language of the Code, he quickly understood that I could not use CACI 204 at trial if I were not given the language the Legislature required. 

Statement that the documents are not in their custody or control is not enough

The Code requires the responding party to produce everything “in their custody and control.” Defense attorneys love to determine they do not have what we are demanding and leave it at that. But again, that is not enough. C.C.P. Section 2031.230  also requires that when the responding party has no documents to produce, they must identify who may be in possession of the requested documents.

Per the Code, a representation of an inability to comply is not enough:

The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. (C.C.P. §2031.230)

So, to use the example of the missing surveillance video of your client’s fall, requiring the defendant to identify anyone who would have that video prevents them from hiding the fact that the footage is actually in the possession of a separate company who handles their security and surveillance.

Or, as in the case of a recent forklift product case I handled where negligent maintenance of the lift led to a paralyzed plaintiff, training videos for the servicing of the forklift were actually in the possession of the manufacturer via an on-line training portal maintained by the manufacturer, rather than any classes conducted by the service company. The company authorized to service the forklift became “authorized” only if its technicians completed the manufacturer’s on-line training program. In this case, the service technician had not completed the on-line training program. But the defendant’s discovery responses simply stated that all training documents in defendant’s custody and control had already been produced.   If that response had been accepted, the defendant would have never been forced to admit that other documents existed, they just happened to be in someone else’s control.

Not only did this result in the ultimate production of the evidence from the other defendant, but it also established that its technician was lacking training. It also demonstrated a closer business relationship between the two separate corporations. None of that would have been uncovered had the defendant not been held to the required language of the Code.

While all of this may seem like a tremendous battle for the evidence, the initial stages really are not. A form letter that includes the paragraphs demanding the Code-compliant language should be saved on your desktop, and copy-and-pasted into a meet and confer letter in a matter of seconds.

Privilege logs required 

Defense will also assert a cavalcade of objections in the response, keeping it vague as to which documents they are not producing based on those legal objections. You can’t blame them. What poker player would want to identify the cards in their hands that they are not showing you? It kind of undermines the purpose of keeping your cards close to your vest, right? And yet the Code requires them to do just that!

If a responding party refuses to produce something based upon an objection, they have to actually tell you with specificity which items they are not producing. (C.C.P. Section 2031.240(b)) Yes, the Code requires them in essence to admit, “I’m holding Queens and Aces.”   More often than not, however, they have no legal basis for withholding the documents. And requiring them to explain the basis for withholding the documents will often result either in the eventual production of those documents, or great fodder for a motion to compel. 

Enforcing the requirement for Code-compliant language

On occasion, defense will call your bluff and refuse to provide the Code-compliant language. At that point, one has to conduct a cost/benefit analysis to determine if a motion to compel is worthwhile. And remember, your time is ticking to file a Motion to Compel the Production of Documents.

Questions regarding this article can be sent to Patrick@daalaw.com.

This article originally appeared in the Volume 45, Number 10, October 2017 issue of the Advocate. Copyright © 2017 Consumer Attorneys Association of Los Angeles. All rights reserved. Reprinted with permission.

iStock_000008477093SmallI have always been a strong advocate that you should be awarded sanctions if you had to bring a motion to get the relief you were entitled to even if the other side complied prior to the hearing on the motion.  However in the case of Evilsizor v. Sweeney (2014) 230 CA4th 1304, the First District Court of Appeal had an interesting take on the issue.

Continue Reading Should you withdraw your motion if the other side has complied?

Overwhelmed Office Worker

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

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During my seminar on “Sanctions Denied,” I was asked how do you handle discovery abuse when it is part of a deep pocket defendant’s litigation strategy.  His story went like this:

Plaintiff’s counsel had been to court several times on motions to compel documents and motions to compel further documents from an international Corporation.  The court’s most recent order was that the documents were to be served two weeks before the corporation’s person most knowledgeable depositions were to take place in London.   Instead defendant produced 30,000 documents on a CD less than 24 hours before the London depositions were to begin.   Plaintiff counsel went forward with the depositions as trial was in a month and his client could not afford for the lawyer to go to London another time.  Plaintiff counsel expressed his frustrations that even though the court gave him $6000 in sanctions he was severely handicapped in his preparation for the depositions and it impacted on what evidence he could obtain before trial.

Even though this is an extreme example, it is not unusual.  The real question is what could he have done and what should you do if you find yourself in this situation.

Continue Reading When Discovery Abuse is a Trial Strategy

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When a Judge or Discovery Referee makes a comprise in a a discovery dispute–splitting the baby–I cringe. This goes against the philosophy of the Discovery Act and current case law. There are rules in discovery and attorneys are expected to play by those rules. When one side plays by the rules and asks the court to enforce those rules, it becomes disheartening to that party when the Judge or Discovery Referee splits the baby instead of making the tough call.

Recently, I heard a lawyer bemoan the fact that instead of granting the motion to compel further responses to requests for documents documents which he clearly had won, the judge ordered that the responding party to turn over all its declared experts files prior to the declared expert’s deposition instead.  Apparently the judge was persuaded by the opposition’s position that to provide a further response and gather all the responsive documents would take too much time away from their preparation of the impending trial. This order was wrong on so many levels I don’t know where to begin. Continue Reading A Judge Needs to Call Balls and Strikes on Discovery Motions

IME Doctor

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. Continue Reading I’ve Got This Doctor You Gotta See!

iStock_000016672124XSmall-1.jpgI recently received an e-mail from a pro-per who asked me

“ Is there any chance you can send me a link to an example “meet & confer” declaration form”

Wouldn’t it be nice to have a Judicial Council form where you could check the boxes on such a form and be done with it? The judge should just assume that you did what needed to be done and grant your motion. Isn’t that the way it should be? I mean, really, aren’t we all professionals and if you say that you met and conferred in good faith your word should be enough. Right? Not quite…

Continue Reading Save Time, Money and Angst — MEET AND CONFER

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”

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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When I started this blog I asked fellow attorneys what issues they would like me to address.  I received this response from a lawyer in San Francisco: 

Key problem – judges that won’t crack down on parties that lodge bogus objections and don’t answer interrogs, and object to discovery demands that are straight forward. Amount of sanctions awarded is usually pitiful. 

Continue Reading SANCTIONS–DENIED!!!