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.

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For years I have been blogging about bad discovery habits from Garbage Objections to unauthorized General Objections, and preached that attorneys must play by the rules. As you know if you have read my blogs, I am quite the supporter of the 1986 Discovery Act, and often express my opinions  on a party’s responsibility during the discovery process.  More importantly, I attempt to educate lawyers about the Discovery Act so they can be well prepared with their arguments when the court makes a wrong turn (yes, it does happen).

The case of Biles v. Exxon Mobil Corp. (2004) 124 CA4th 1315 is an example of the court’s misunderstanding of the Discovery Act and reacting erroneously to a garbage discovery response.  The facts are as follows:

Defendant Exxon served a special interrogatory asking plaintiff to identify “each person who has knowledge specifically of the work at [the Humble refinery] that you contend created your exposure to asbestos fibers.

Plaintiff responded:  “ After a reasonable and good faith inquiry, plaintiff currently has no further information responsive to this Interrogatory.  Plaintiff expressly reserves the right to amend or supplement this Response based on the outcome of such investigation.  Plaintiff’s investigation and discovery are continuing.”

Five months later, Exxon filed a motion for summary judgment.  Plaintiff’s opposition to the summary judgment included a declaration from a witness, which should have arguably defeated Exxon’s motion.  Exxon objected to the declaration of the witness on the ground that the witness had not been identified in plaintiff’s interrogatories responses.  The court sustained the objection and granted motion for summary judgement to Exxon.  The court rationalized its decision to strike the declaration stating:

Look, when you answer an interrogatory and you don’t give any names at all but say you are going to supplement it, the obligation is on you to supplement it as soon as you find out.”

The First District Court of Appeal reversed the trial court on three grounds: (1) there was no evidence that plaintiff’s initial response was willfully false at the time it was served, (2) there is no obligation to supplement without a court order [or having been served with a supplemental interrogatory] and (3) the appropriate sanction if there was any discovery abuse, absent unusual circumstances or a violation of court order, was monetary sanctions, not evidence sanctions.

It took a year for the Court of Appeal to right this wrong and probably thousands of dollars in attorney time that the attorney probably wrote off.  All because of the unnecessary language,  “Plaintiff expressly reserves the right to amend or supplement this Response based on the outcome of such investigation,” included in the discovery response, and due to plaintiff’s encounter with a judge who didn’t know the finer points of the Discovery Act (or ignored them).

A close-up of a Baseball or Softball Home Plate Umpire

Recently I received an e-mail from an attorney who followed my advice regarding General Objections.  It went like this:

“I read your article ‘Why you Need to Bring a Motion to Strike General Objections,’ and filed a ‘Motion to Strike Defendants’ Preliminary Statement and Unmeritorious Objections.’  The Preliminary Statement contained many of the issues you pointed out in your article, and each of defendants’ responses to interrogatories and document requests contained the same 28 lines of objections.  The court then separated the motions to compel from the motions to strike and refused to rule on the motion to strike stating “There is no such motion.” Is the court correct?”

The court is correct that a Motion to Strike pursuant to C.C.P. §435 and C.C.P. §437 is about the pleadings even though the request  “Move to Strike” is often used in discovery (i.e, portions of a declaration, objections in a deposition) even though it is not codified.  However, I have never seen a court refuse to deal with a discovery issue based on semantics of the notice.  In fact, according to Weil and Brown,  Civil Procedure Before Trial (TRG 2015) 9:2.3 citing Sole Energy Co. v. Petrominerals Corp. (2005) 128 CA4th, 187, 192-193 the label of the motion is not determinative.

Propounding parties are in a Catch-22 situation.  There is no provision allowing the General Objections or a Preliminary Statement in a discovery response so there is no remedy for it.  The following is my rationale for recommending the filing of such a motion with your motion to compel further responses.

  • The Code does not allow for general objections or preliminary statements.  A party must respond to the individual interrogatory or request and that includes any objection.  See my blog article “What is a General Objection?
  • Each written discovery device allows a party to bring a motion to compel further responses if an objection is “too general.” See C.C.P. §2030.300 and C.C.P. §2031.310.
  • C.C.P. §2023.010(e) says it is a misuse of the discovery process if a party makes an unmeritorious objection to discovery.
  • C.C.P. §2023.010(f) says it is a misuse of the discovery process for making an evasive response to discovery.
  • C.C.P. §2023.030 gives the court power to issue monetary, issue and evidence sanctions on a party for misuse of the discovery process.

Procedurally speaking the proper motion to bring is a Motion to Compel Further Responses pursuant to C.C.P. §2030.300 and C.C.P. §2031.310 with a Request for Sanctions for violation of C.C.P. §2023.010(e) and  C.C.P. §2023.010(f).In that motion, a party should:

  • Point out to the court that the General Objections and Preliminary Statements are not proper and ask the court to overrule the objections or strike them from the response as improper.
  • Request the court require a further response with a ruling that responding party is forbidden to use General Objections or Preliminary Statements in any of their responses.
  • Finally, stress to the court that you are entitled to sanctions.

To answer the attorney’s question “Is the Court correct?”  In my opinion, No!  The court has the “inherent authority to manage and control its docket” and should have ruled on the merits regarding defendant’s improper General Objections and Preliminary Statement.

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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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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

Wallet with MoneyA fellow Bay Area attorney contacted me about being sanctioned in excess of $5,000. He was mortified, as it was the first time he had ever been sanctioned and couldn’t believe the amount he was sanctioned under the circumstances. After I had spoken to him about his remedies, one being, a Writ (pdf), he wrote me the following e-mail.

Just wondering, but what does the phrase “acted with substantial justification” mean in the sanctions statute for motion to compel depo testimony, CCP 2025.480 (pdf)? Continue Reading Acted with Substantial Justification

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In responding to Requests for Production of documents you have three response choices  (1) agree to produce (C.C.P. §2031.220 (pdf)); (2) state that after a diligent search and a reasonable inquiry you have no documents (C.C.P. §2031.230 (pdf)) or (3) object C.C.P. §2031.240 (pdf)Continue Reading The Document from Hell–aka The “Privilege Log”

iStock_000014100087Large.jpgLast spring I had the pleasure of taking a tour of the Royal Globe Theatre in London, England.  On display there was a plaque titled “Quoting Shakespeare.” It began by stating:

If you can’t understand my argument and declare, “it’s Greek to me, you are quoting Shakespeare.  If you claim to be more sinned against than sinning, you are quoting Shakespeare.  If you act more in sorrow than in anger, if your wish is father to the thought, if you lost property has vanished into thin air, you are quoting Shakespeare.  If you have ever refused to budge an inch or suffered from green-eyed jealousy, if you have played fast and loose, if you have been tongue-tied-a tower of strength—hoodwinked or in a pickle, if you have knitted your brows—made a virtue necessitated, insisted on fair play, slept not one wink—stood on ceremony—danced attendance on your lord and mater—laughed yourself into stitches, had short shrift—cold comfort, too much of a good thing, if you have seen better days, or lived in a fools paradise, why, be that as it may, the more fool you, for it is a foregone conclusion that you are as good luck would have it, quoting Shakespeare…

Continue Reading Quoting Shakespeare

Objecting male attorney.jpgIn the spirit of my most recent blog, “OBJECTION!! There’s this case that says . . . “, here is a list of proper and improper objections to deposition questions that you should also keep in the back of your legal pad.  

OBJECTIONS TO DEPOSITION QUESTIONS

Objections to the form of questions are waived if not raised at the deposition. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:721 (citing C.C.P. §2025.460 (pdf)(b)). 

Instructing witness not to answer is improper unless objecting on grounds of privilege. CCP §2025.460 (pdf)Stewart v. Colonial Western Agency, Inc.(2001) 87 CA4th 1006 (pdf), 10015.

Speaking objections which counsel explains his rationale for the objection is improper as it is usually used as a tactic to give the deponent a heads up that the area of questioning is dangerous and how he should answer.  This is a form of “coaching” the witness and a protective order may need to be sought.  See CEB, California Civil Discovery Practice (4th ed. 2010) §6:100. 

Continue Reading DEPOSITONS–What are the Real Objections?