The biggest burden in bringing motions to compel further responses is the preparation of the separate statement of items in dispute pursuant to CRC, Rule 3.1345. In my blogs and at seminars, I have advised parties to prepare their meet and confer letters in the format of a separate statement. See my blog “EXHIBIT A—The Meet and Confer Letter.” As a Discovery Referee I have required parties to exchange Discovery in Word format. I find it is helpful for two reasons: (1) the parties can meet and confer using the “Track Changes” function in Word and hopefully agree on the modifications to the propounded written discovery, and (2) parties can easily prepare the separate statement of items in dispute if a motion needs to be filed. This takes out the grunt work of having to retype the interrogatories, requests for admissions and requests for documents, as well as their responses when preparing or responding to the separate statement when only a hard copy was served.


Continue Reading In Order to Facilitate the Discovery Process–Serve Your Discovery in Electronic Form

Recently at an MCLE seminar, a sitting judge forewarned the audience that because of all the new judges from a variety of backgrounds, often they don’t  have the necessary background on law and procedures for their department.  His advice:

come to your hearings with copies of all the important cases and statutes, no matter how basic the concept is.

This sitting judge was subtly saying:  Plan on educating the court!!


Continue Reading Know Your Audience

The meet and confer process has failed.   Now you have to decide whether (1) you need to bring a Motion to Compel Further Documents because the documents are an integral part of the defense and/or prosecution of your case, or (2) wait for trial and make a motion in limine to exclude the documents categorically at trial.  Two of the factors you are going to have to consider are how much time it’s going to take to prepare the motion as well as the cost to your client.

Most attorneys underestimate the time and cost in filing a Motion to Compel Further Responses.


Continue Reading How Much is that Motion in the Window?

The title of this blog is a quote from the most basic tenant of the 2016 Discovery Act found in Code of Civil Procedure Section 2017.010 titled Matters Subject to Discovery which reads:

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” [Emphasis added]

The courts and the treatises liberally construe this statute and a party’s right to obtain the identity and location of witnesses.


Continue Reading Discovery May Be Obtained of the Identity and Location of Persons Having Knowledge of Any Discoverable Matter

When I hear of a Judge or Discovery Referee making a ruling which essentially tries to not make anybody angry and essentially splits 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.
Continue Reading A Judge Needs to Call Balls and Strikes on Discovery Motions

Last week I received a phone call from an attorney asking what is the authority that says a party has the right to conduct discovery. I responded, “The Discovery Act!” Counsel stated that they needed more because a special master in their construction defect case refused to allow them to serve discovery and was demanding authority to prove that they had such a right. I thought it was such a basic concept in civil litigation that I was amazed that it even was an issue. Nonetheless, I went to the discovery treatises to find the answer.
Continue Reading You Have The Right To Conduct Discovery!!

Today I read a great article by Minnesota attorney Randall Ryder titled New Attorney? Don’t Get Intimidated by Opposing Counsel. The article struck a cord with me as it is a proponent of the same philosophy that I am advocating in my own blog–don’t be intimidated by a bully, do not react with words in kind and use the “Rules” to win. Here it is and I hope it hits a cord with you too.
Continue Reading Don’t Get Intimidated and Play by the Rules

Last 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 brought a smile to my face when I read the passage as I realized how much of Shakespeare is in our everyday vernacular. There to I realized how many distinctive quotes there that I use over and over again as a Discovery Referee. Here are a few that you should keep handy to sprinkle into your arguments during your discovery battles.
Continue Reading Quoting Shakespeare

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!