For years I have been blogging about bad discovery habits from Garbage Objections to unauthorized General Objections, and preached that attorneys must play by the rules. As you know if you have read my blogs, I am quite the supporter of the 1986 Discovery Act, and often express my opinions on a party’s responsibility during the discovery process. More importantly, I attempt to educate lawyers about the Discovery Act so they can be well prepared with their arguments when the court makes a wrong turn (yes, it does happen).
Recently I received an e-mail from an attorney who followed my advice regarding General Objections. It went like this:
“I read your article ‘Why you Need to Bring a Motion to Strike General Objections,’ and filed a ‘Motion to Strike Defendants’ Preliminary Statement and Unmeritorious Objections.’ The Preliminary Statement contained many of the issues you pointed out in your article, and each of defendants’ responses to interrogatories and document requests contained the same 28 lines of objections. The court then separated the motions to compel from the motions to strike and refused to rule on the motion to strike stating “There is no such motion.” Is the court correct?”
There was only one change to the Discovery Codes but it was significant. The legislature added language to Code of Civil Procedure Section 2025.220 with added requirements when you serve a deposition notice. The deposition Notice must now contain:
(8)(A) A statement disclosing the existence of a contract, if any is known to the noticing party, between the noticing party or a third party who is financing all or part of the action and either of the following for any service beyond the noticed deposition:
(i) The deposition officer.
(ii) The entity providing the services of the deposition officer.
(B) A statement disclosing that the party noticing the deposition, or a third party financing all or part of the action, directed his or her attorney to use a particular officer or entity to provide services for the deposition, if applicable.
Unlike Federal Rule Civil Procedure 26(e)(1) – (2), California law does not impose a continuing duty on a party to supplement their interrogatory or document responses. Biles v. Exxon Mobil Corp. (2004) 124 CA 4th 1315. Instead, the California Discovery Act has two statutes, C.C.P. §2030.070 and C.C.P. § 2031.050, that allow the propounding party to ask for updated information “bearing on answers already made” and “later acquired or discovered documents, tangible things, land or other property.”
Can a trial court order a party to disclose potentially privileged information because the party’s privilege log did not provide sufficient information for the court to evaluate whether the privilege applies? According to the Fourth District Court of Appeal, Division Three in Catalina Island Yacht Club v. The Superior Court of Orange County filed December 4, 2015 the answer is NO!
Several times per month I receive questions from attorneys regarding a discovery dilemma. Mostly the questions offer a novel twist on basic discovery. However, this latest query was quirkier than most and raised some interesting issues and misconceptions, so I thought I would share it with you. It went like this:
I served written discovery on a cross-defendant in a case, we are one of the defendants. Cross-defendant (represented by, the plaintiff’s counsel) has appeared in this case by way of demurrer. Cross-Defendant has refused to answer for the following reasons, (1) my clients are not parties to the cross-complaint so therefore we cannot propound discovery; (2) the court sustained the demurrer with leave to amend and the amended cross-complaint will be filed shortly by the cross-complainant; and (3) the cross-defendant lives in Europe and I need to go through the Hague Convention. I don’t think any of these are legitimate reasons for not responding to discovery.
For years, parties have videotaped both the deponent as well as the lawyer asking the questions during a deposition. The purpose is to provide a split screen video to the jury at trial which would simultaneously show the questioner and the deponent in real time. But is it permissible? As demonstrated below, the answer is “No”, unless the parties stipulate or the court orders it upon the showing of good cause. Continue Reading Can I Videotape Opposing Counsel During a Deposition?
Here is another great article from Miles B. Cooper.
Subtitle: Inadvertent disclosure of privileged documents during discovery
The lawyer read in disbelief. The memo, on defendant’s letterhead, crucified the defense. It was part of defendant’s production responses (and for reasons that will be talked about later, the fact that it was not electronically stored information is significant). The document had also been floating around for years. The defendant gave it to the police during the initial investigation. The police gave it back to the defense team when the defense asked for a copy of the police file. The defense produced it to the plaintiff. And, because it was responsive to a discovery category, the plaintiff produced it back to the defense. Continue Reading Read it and weep–Inadvertent Disclosure of Privileged Documents
At the 22nd Annual West Coast Casualty Seminar, Plaintiff counsel Michael Kennedy, General Contractor Counsel Matthew Hawk, Subcontractor Counsel Brian Sanders, Claims Manager James Rzpecki and I presented a new protocol for how to litigate construction defect cases. This new protocol is in compliance with the Code of Civil Procedure as well as the current case law. But, more importantly these new Case Management Orders address the concerns that the parties have with the current process and provides them with admissible evidence in order to adequately evaluate their case and be prepared to have a meaningful mediation within six months of the litigation. Continue Reading WHAT IS WRONG WITH THE CURRENT CMO PROCESS IN CONSTRUCTION LITIGATION? And yes, there is a better way!
As a mediator, there is always a case that you question yourself as to what you could you could have done differently in order to resolve the matter. My case involved a personal injury case. It appeared to be straightforward, as the defendant had admitted liability and the plaintiff ended up having surgery allegedly because of the accident. Unfortunately, the mediation process went sideways before the mediation even began. While introducing myself to the defense attorney who had arrived first, he said
I’d like to get to the point and save some time and money. If they aren’t willing to take (25% of the cost of the surgery), then let’s end this and have a nice lunch.