One of the most common questions I am asked is: when does the clock start regarding bringing motions to compel written discovery? The statutes all contain the same language, but it’s not that easy to decipher. Below is a list of scenarios with the applicable statutes and case law regarding the different responses you may
Have you noticed that you are getting too many objections and very little documents to your document requests? Have you also noticed that despite months of meet and confers you still don’t have a determination whether or not documents exist; and if they do exist, why they aren’t being produced? Is this scenario more the norm than the exception?
Continue Reading Start Preparing Your Motion Because with These Responses You’re Going to Court
In the case of Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal. App. 5th 948, the First District Court of Appeal made it very clear that denials to Requests for Admissions are inadmissible. Here is the court’s reasoning starting at page 23 of the published opinion:
Gonsalves v. Li (2015) 232 Cal.App.4th 1406 (Gonsalves) involved an automobile accident. Plaintiff called defendant as an adverse witness and asked about his qualified denials of plaintiff’s RFAs that he was responsible for the accident. And in closing argument, plaintiff emphasized that the denials were evidence defendant refused to take responsibility for plaintiff’s injuries. (Id. at p. 1413.) The jury returned a verdict for plaintiff for $1,208,642.86. (Id. at p. 1411.) Our colleagues in Division Five reversed, holding it was error for the trial court to allow questions about RFAs.
Continue Reading Denials to Requests for Admissions are NOT Admissible
Recently I received a telephone call from an attorney wanting to discuss whether opposing party’s objections to her special interrogatories had any merit. Listening to the list of objections, it was clear that the opposing party had failed to assert the objections in good faith as the objections included a General Objection preamble and every response included the same boilerplate garbage objections. However, one of the objections I hadn’t seen before: “No preface or instruction shall be included with a set of interrogatories. C.C.P. §2030.060(d).” The propounding party had placed the definitions of specific terms in a preamble. Did I think this was ok or not?
Continue Reading Avoiding the Technical Mistakes When Drafting Written Discovery
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?
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)?
Does it mean the conduct that led the moving party to make the motion has to be substantially justified? Or does it mean the decision to make or oppose the motion to compel has to be substantially justified?
Continue Reading Acted with Substantial Justification
As 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 pursuant to C.C.P. §2030.040 and C.C.P. §2033.040 stating the reasons why they need more. See C.C.P. §2030.050 and C.C.P. §2033.050. 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”
Requests 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; 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 be effective evidence in a motion for summary judgment or at trial is difficult.
Continue Reading How to Write Requests for Admissions
If you are like most lawyers, you are using the typical discovery devices to gather up all your information–form interrogatories, special interrogatories, requests for production of documents, and of course the deposition schedule from Hell. However, requests for admissions are rarely in a party’s discovery plan. I suggest you take a closer look at CCP Section 2033.010 (pdf) et seq. Requests for admissions are wonderful, tricky little discovery devices that really help you set up your case. Let me explain why.
Continue Reading Why Aren’t You Using Requests for Admissions
Nine years ago, in the middle of a Deposition, defense counsel called plaintiff counsel a “Bitch.” Plaintiff counsel immediately filed a motion for a Discovery Referee and I was appointed. The court ordered that I sit in on all the depositions and attend the site inspection. All communication including the scheduling of discovery was to be done through me. When I look back on this case, I realize that the moment defense counsel used the word “Bitch” it became the turning point of the case.
Continue Reading When an Apology is a Discovery Response