The absence of a reasonable expectation of confidentiality in the content of an independent witness’ signed or recorded verbatim statement precludes a finding of work-product protection. That is what Petitioner Debra Coito’s Answering Brief on the Merits states in the case of Coito v. Superior Court (2010)182 Cal. App. 4th 758 (pdf) which is currently pending in the California Supreme Court.
I received a copy of Petitioner Debra Coito’s Answering Brief on the Merits in the case of Coito v. Superior Court of the County of Stanislaus which is currently pending in the California Supreme Court. As you many of you are aware, Coito v. Superior Court (2010)182 Cal. App. 4th 758 (pdf)refused to follow the 14-year old case Nacht & Lewis Architect, Inc. v. Superior Court (1996) 47 CA4th 214 (pdf) stating that witness statements are not attorney work product. Below is Petitioner’s argument that the Court of Appeal correctly held that signed or recorded verbatim statements of independent witnesses are potential evidence.
In Saturday’s mail I received a case from Burlingame lawyer, Michael Liberty, titled Clement v. Alegre(2009) 177 CA4th 1277 (pdf) with an FYI note. I read the case with fascination as it sums it all up when it comes to garbage objections and sanctions.
You are within fifty days of trial and you are in receipt of defendant’s expert witness disclosure. She has three experts and you have three experts. All six of them need to be deposed in less than 35 days and you haven’t yet sent out a deposition notice. You pick up the phone and meet and confer with opposing counsel to select dates. During the conversation the attorney for the defendant states very adamantly
My expert will not be ready to testify until your expert testifies. Besides you are the plaintiff and you have to go first!
Heard this before? I have and there are some significant problems with defense counsel’s position.
A useful tool that is too often overlooked is stipulations. Discovery is a very expensive process, especially in complex cases, but there are ways to streamline the process and be more cost effective. Below are some of the stipulations that you may want to consider:
Agree on Service: Agree to service by fax (pdf). [C.C.P. §1013(e) and (f)] Get everyone’s e-mail address and agree to correspond by E-Mail Service (pdf). Better yet, agree to accept e-mail service of all pleadings and other documents except for motions. As for motions (pdf), consider agreeing that the moving party only need serve the full moving papers on the party to which the motion is being directed to. All other parties are served with the notice of motion only with the option of requesting a full set of moving papers. This procedure, commonly used in asbestos litigation, saves hundreds if not thousands of dollars on copying costs and service charges in multi-party litigation.
Continue Reading Discovery Plans Part 2: Are Stipulations Part of Your Discovery Plan?
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”?
Have you ever been around a bunch of lawyers from the Silicon Valley when they start talking about e-discovery? They start using fancy e-discovery words like “meta data,” “native format” and “clawback agreements.” Meanwhile your eyes are glazing over and you begin to clench your teeth because all you want are the e-mails, letters and other stuff the other side may be hoarding on their computer that would be relevant to your case. Been there. Done that. Well, a good place to start and decipher what all those techno words mean is Sedona Conference Institute’s Third Edition of the Sedona Conference Glossary on E-Discovery & Digital Information Management (pdf) which was just released this month. This 56 page glossary will help you figure out what everybody’s talking about.
You have been served with the Motion to Compel Further Responses with a Separate Statement of Items in Dispute (pdf) the size of your fist and your response is due in two weeks. Now what do you do? First, take a deep breath. This is the time you decide when to “hold them and when to fold them” because how you respond may end up setting the tone between you and opposing counsel for the entire case.
Look at the Separate Statement of Items in Dispute (pdf) and determine whether or not you have any garbage objections. If you do, offer to respond to those interrogatories, requests for admissions and/or requests for productions of documents by a date no later than when your opposition is due.
As a discovery referee, I normally come into cases when there already is a problem. Either discovery in the case is out of control, or the antagonism among counsel is so great that the Law and Motion Judge is done dealing with the parties. In many instances, I see an all out war between counsel, with discovery being used as a weapon. There is no rhyme or reason to the 105 special interrogatories that were served, the 200 categories of documents being demanded or the 20 depositions that have been noticed. The meet and confer process has broken down into a rampage of insults. Yet nobody has bothered asking the demanding party the fundamental question “Why do you need this?” When that question is finally posed by me, too frequently that counsel cannot answer the question. In such circumstances, it is clear to me that the attorneys have no idea what direction they want to case to proceed, no plan of attack and no idea what they are trying to accomplish. In other words–No Discovery Plan!
Discovery motions are the banes of most attorneys’ existence and they are often relegated to the newbie in the office to prepare. Young associates as well as other attorneys struggle on what needs to be in the papers and exactly how to convince the court that they should win.
With the courts’ having budgetary problems and staff shortages, it is in your best interests to make it real clear to the court (1) what has happened; (2) what you want the court to do; and (3) why you are entitled to the discovery and sanctions in a succinct fashion.
Continue Reading What Should Your Discovery Motions Look Like?