About a year ago I received an inquiry from a lawyer stating:
I’m researching whether the defendant can file a motion for a protective order after my motion to compel was already granted—I’m’ trying to find a case that precludes the protective order motion as a matter of law—res judicata perhaps?
This is a procedural issue and one that you need to be familiar with all the ins and outs of the Code of Civil Procedure as well as current case law because my answer is “It depends”
Failure to Promptly Bring a Protective Order
In the present scenario, the motion for protective order should have been filed during the time the response was due and should been heard at the same time as the motion to compel or the motion to compel further responses was heard.
Pursuant to Code of Civil Procedure sections 2030.090(a), 2031.060(a), 2033.080(a) a motion for protective order must be brought promptly and before the 30-day with which to respond to the written discovery, otherwise the objection may be waived. See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1013. Case law also supports this position. In Scottsdale Ins. Co. v. Sup. Ct. (1997) 59 CA4th 263 the court held that the waiver of attorney client privilege occurs by failing to raise the objection in the initial response. See California Civil Discovery Practice, 4thEdition (CEB 2018). Thus, a motion for protective order should be denied if it wasn’t file within the 30-days to respond.
However, there is ONE case that granted relief. In the case of Standish v. Superior Court (1999) 71 CA4th 113 at page 1144, the Second District Court of Appeal held “that upon a proper showing a party may—even after it has waived its right to object to the production of documents, and has produced most of the documents requested–seek a protective order restricting the production of documents” See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1031. Be careful as this case may be distinguished because it involved trade secrets.
Did the Party File a Motion Seeking Relief from the Waiver of Objections?
A party may seek relief by way of a motion from the waiver of objections to interrogatories and/or a request for production of documents by (1) serving a substantially compliant response and (2) a declaration that the party’s failure to serve a timely response was the result of mistake, inadvertence or excusable neglect. See C.C.P. sections 2030.290(a) and 2031.300(a). As with the motion for protective order, the motion for relief of waiver may not be raised in opposition to the motion to compel, but in a separate motion and therefore should be made promptly so it can be heard with the motion to compel or motion to compel further responses.
Remember requests for admissions are different. For requests for admissions there is a time constraint as party seeking relief must do the above prior to the hearing on the Motion to Have Admissions be Deemed Admitted. If a party so complies, then the relief must be granted. See C.C.P. section 2033.280(a)(1),(2) and Request for Admissions–The Motions.
Did the party argue for a protective order or relief from the waiver in the opposition papers?
Though it would be procedurally incorrect to argue for a protective order and relief from waiver only in the opposition papers, in this case the issue was before the court and considered. Thus, any motion for protective order or motion for relief of waiver would be seen as trying to get another bite of the apple with the same facts and arguments.
Motion for reconsideration
Another motion that can be brought is a Motion for Reconsideration pursuant to C.C.P. section 1008(a). However, the scope of that motion is limited, as it is made after the negative ruling and the motion must be:
- brought before the same judge that made the order;
- “made within 10 days after service upon the party of notice of entry of the order.”
- Based on “new or different facts, circumstances of law” than those before the court at the time of the original ruling;
- Supported by declaration stating that the previous order, by which judge it was made, and the new or different facts, circumstance or law claimed to exist; and
- Made and decided before entry of judgment. See Weil and Brown, Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶9:324
The name of the motion is not controlling. The above requirements apply to any motion that asks the judge to decide the same matter ruled on. Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶9:324.1 citing R&B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 CA4th 327, 383. Therefore, any motion for protective order or motion for relief from waiver from the court’s order granting the motion to compel must follow the requirements for a motion for reconsideration.
Filing a writ or appeal
The final avenue to seek relief is from the Court of Appeal. See my discovery blog “Obtaining Review of Discovery Rulings.”