Compel Further Responses

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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

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

iStock_000000215562XSmall.jpgLast week I received the following e-mail from one of my readers:

I have read your articles with interest and respect for some time now; I find them excellent plus.I have a friend who is acting pro per in a civil case. Suffice it to say she can’t afford or get an attorney.

Opposing counsel has made a mockery of discovery by making (putrid) garbage objections to 99% of discovery sent him. He uses every boilerplate objection and has even objected saying some discovery was “unintelligible” when my friend didn’t define a name that was the name of the defendants product…  Opposing counsel is clearly abusing the intent of discovery dragging my friend into “Meet and Confer Hell” while knowing that as a pro per, my friend can not get anything more at this point than her costs of filing a Motion to Compel (which she has won) and photocopy costs. On the other hand, and I speak with authority, opposing counsel has created enough work for himself to literally turn a reasonably moderately sized case into a major matter and I would estimate he has made more than $250,000 in fees from his client (no insurance company involved) in 2011.

My point being: There is clearly a wrong here (major discovery abuse and a lack of any good faith) and no remedy.Am I being naive in thinking something should be done or a remedy created? Continue Reading Am I Naïve to Think Something Should Be Done?

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To determine whether or not a responding party has made a reasonable inquiry, you must determine where the responding party searched (what efforts were made), who did they talk to (did they make an inquiry to their legal department, human resources, customer relations, the employees in the chain of command, etc.), and what were the questions they asked.

Continue Reading INSPECTION DEMANDS-What is a Reasonable Inquiry?

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Have you ever received a response to requests for production of documents that says:

After a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, there are no documents within RESPONDING PARTY’s possession, custody, or control

Yet you question the veracity of the verified response, because they have got to have documents. So what can you do?

Continue Reading INSPECTION DEMANDS-What is a Diligent Search

tank.jpgThere are three motions that you can bring–(1) Motion to Compel, (2) Motion to Compel Further Responses, and (3) Motion to Have Admissions Deemed Admitted.  All of them have their place in your discovery plan but two of them–Motion to Compel Further Responses and Motions to Have Matters Deemed Admitted must be in your arsenal.  Though they appear to be the same motions you would use for interrogatories, inspection demands, and depositions there are a few noteworthy twists and turns.

Continue Reading Request for Admissions-THE MOTIONS

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Attorneys easily spew out the objection “the information you are seeking is not relevant to the subject matter of the litigation” as easily as they say “Good morning.”  If you are the propounding party your reaction is probably to be to yell out “It is too relevant!” because it doesn’t even appear that the responding party actually thought it through before spewing out the objection.   But what exactly is relevancy?  It seems to be a nebulous term that invokes images of catching clouds with your hands or like Supreme Court Justice Potter Stewart’s definition of pornography “I know it when I see it”?

Continue Reading It Is Too Relevant!

Lawer with Books.jpg Discovery motions are the banes of most attorneys’ existence and they are often relegated to the newbie in the office to prepare.  Young associates as well as other attorneys struggle on what needs to be in the papers and exactly how to convince the court that they should win.     

With the courts’ having budgetary problems and staff shortages, it is in your best interests to make it real clear to the court (1) what has happened; (2) what you want the court to do; and (3)  why you are entitled to the discovery and sanctions in a succinct fashion.  

Continue Reading What Should Your Discovery Motions Look Like?

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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!!!

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Not only are most objections garbage, we tend to recycle our garbage objections from one case to the next. Sometimes, we pick up other attorneys’ garbage objections and contribute to more litter. This is done over and over again without even thinking what it is doing to the environment of the litigation.

Garbage objections fuel the ire of opposing counsel. The “meet and confer” letter that is soon to follow is usually full of hostility and threats. Any amicable relationship you had hoped for with opposing counsel is on the cusp of being destroyed. More important, you are now costing your client more money in attorneys’ fees and possibly in settlement.  So before you throw out the trash, look at these common objections and why they will be overruled:

Continue Reading Are Your Objections Garbage?