In most practices areas, facts are king. The attorney who can discover and present the best “facts” will be the most persuasive when presenting their case to the judge or jury. However, some cases can be won in the law and motion department with a Motion for Summary Judgment and/or Summary Adjudication. In these cases, the facts are less important than the law. If your case is one that you can win as a matter of law based on inconvertible facts (or the opponents admitted facts) and you believe that a Motion for Summary Judgment or a Motion for Summary Adjudication is appropriate, you need to develop a discovery plan specifically tailored to these motions.
As you know, a Motion for Summary Judgment and/or Summary Adjudication must be supported by admissible evidence. See C.C.P. §437c(b)(1). The moving party must present admissible evidence in support of each undisputed material fact necessary to entity them to judgment (or adjudication of the issue) in their favor. Therefore, if there is no admissible evidence with regard to a material fact, the motion will be denied. The discovery devices listed in order of most the useful to least useful for these motions are:
(1) Requests for Admissions
(4) Requests for Production of Documents.
Requests for Admissions are the most useful. The main purpose of Requests for Admissions is to set issues to rest by compelling admissions of things that cannot reasonably be controverted. Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2015), ¶8:1256, citing Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 C3d 256, 261. If a party admits key facts, including legal conclusions, and/or authenticates documents you are in a better position to win a motion for summary judgment or summary adjudication. Because a party can deny a request for admission, you should also be serving Form Interrogatory #17.1 as well as a Document Request asking for all documents listed in Form Interrogatory #17.1(d) to make sure that any questionable or frivolous denials are exposed. See my blog “How to Write Requests for Admissions.”
Depositions are the “next best” discovery method after Request for Admissions. If there are facts, documents, etc. that require an explanation the witness with knowledge is the best means of obtaining this evidence, especially when your opposing counsel provides evasive or non-responsive answers to written discovery. However, the lawyer must be careful to ask precise questions so that there is a clear question and answer for purposes of supporting one or more facts in the separate statement.
Interrogatories are the third most useful discovery device. Interrogatories are good for establishing the basic nature of claims being presented, witnesses that might be available or other such broad based questions. They are usually not precise enough to support Motions for Summary Judgment, except when they are incredibly narrow. However, where the Motion for Summary Judgment is based on an absence of evidence that the opposing side has to support their case, an interrogatory may be useful to show that they were given ample opportunity to present that evidence.
Requests for Production of Documents, while essential, are only preliminary. One mistake young lawyers make (and some older ones) is that they believe if a party produces a document it is admissible in evidence. In fact, the Production of Documents even with a verification neither authenticates any document nor establishes the statements made therein. Thus, it is important to follow up by using the Judicial Council Form Request for Admission and ask for authentication of documents, in addition to obtaining an admission that the document was, for example, sent by mail in the ordinary course of business to establish that the document was not heresy.
One common pitfall lawyers often make in filing a Motion for Summary judgment/summary adjudication is the timing. These motions require an exorbitant amount of time for notice–75 days (plus five for mailing). The last day these motions can be heard is 30 days before trial. Thus the last day to file a Motion for Summary Judgment and/or Summary Adjudication is 105 Days before Trial–that is before expert disclosure (50 days before trial) and the discovery cutoff (30 days before trial).
Moral of the Story: The decision to file a Motion for Summary Judgment and/or Summary Adjudication must be considered early in a case so you have adequate time to develop a discovery plan and obtain the discovery you need to file a successful motion.