Search privilege log

In the case of City of L.A. v. PricewaterhouseCoopers, LLC (2024) 17 C5th 46 the California Supreme Court unanimously held that the Discovery Act gives courts independent authority to impose sanctions for discovery abuses and patterns of discovery abuse provisions. This was a complete reversal of the Court of Appeal’s decision which had limited the ability to obtain sanctions to the specific discovery device decision. In their decision, the Supreme Court stated that

“Under the general sanctions provisions of the Civil Discovery Act, Code of Civil Procedure sections 2023.010 and 2023.030, the trial court had the authority to impose monetary sanctions for the City’s pattern of discovery abuse. The court was not limited to imposing sanctions for each individual violation of the rules governing depositions or other methods of discovery.” at pages 50-51. 

Continue Reading The Court has Inherent Power to Impose Discovery Sanctions

On January 1, 2023, fellow San Francisco Superior Court Pro Tem Discovery Judge, Douglas Robbins, published “The California Discovery Manual 2023,” which is full of helpful “Practice Notes.” One such practice note titled “Responding to Refusals to Answer“ provides a strategy when a deponent refuses to answer the question posed due to the instruction by their attorney not to answer. I hope you find it as helpful as I did.

“A common area of abuse occurs when attorneys instruct a witness to not answer a deposition question. Instructions to refuse to answer should occur only in response to questions implicating a privilege or right such as the attorney-client privilege, the spousal/marital privileges, the right to refrain from self-incrimination, and the like. All other objections, say for relevance, for hearsay, and even for “harassment,” cannot justify an instruction to the witness to refuse to answer. If a deposition has truly become unreasonably harassing, the deponent’s remedy is not to refuse to answer questions but rather to suspend the deposition, walk out the door, and immediately move for a protective order.

Continue Reading What to do When the Deponent Refuses to Answer 

Pre-trial Discovery is the heart and soul of litigation. It enables the parties to evaluate and prepare their case for mediation, motions for summary judgment or summary adjudication and for trial. The propounding of Discovery also leads to discovery disputes and then to discovery motions–all which can threaten to overwhelm the litigation of the case. However, due to the court holidays ordered by the Judicial Council during this pandemic, parties were not able to have their discovery disputes heard by the courts, thus, stalling their cases. Now with the courts reopening, the backlog of motions previously taken off calendar will need to be rescheduled. Meanwhile, new motions are being filed. This unprecedented situation begs the question from attorneys: When will my discovery motion be heard?

Continue Reading When Will My Discovery Motion Be Heard?

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”

Continue Reading Can a Motion for Protective Order be Filed after the Court has Issued its Order?

 

Have you ever wondered how the work product doctrine works when you hire a consultant who may or may not become your expert. Trial Attorney Lee Previant, from Los Angeles, wrote this great article titled “Attorney Work Product Doctrine And Experts“ for Advocate Magazine that explains how it all works.  Enjoy.

**************************************************************************************************

As any litigator is undoubtedly aware, expert witnesses are necessary whether to offer evidence required to meet your burden of proof or to offer evidence to combat attacks on causation.  Likewise, communications with your expert witnesses are necessary.  This includes communications to 1) retain the expert witness, 2) communications providing them with case specific materials so they may formulate their opinions, and 3) communications providing scientific, technical, professional texts, treatises, journals, or similar publications to assist the expert in forming their opinion.  In addition, an attorney may communicate with an expert for the sole purpose of obtaining advisory opinions.

An expert witness is defined as someone who has “special knowledge, skill, experience, training, or education sufficient to qualify him[/her] as an expert on the subject to which his[/her] testimony relates.”  (Evid. Code § 720.)

Continue Reading An Attorney’s Relationship with their Expert and the Work Product Doctrine

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

Exasperated JudgeThere are very few discovery cases that come out each year.  Usually they are are significant and involve privileges such as Coito v. Superior Court and Catalina Island Yacht Club v. Superior Court.  The newly reported case  Mitchell v. Superior Court (2015) 243 CA4th 269 is not one of those cases.  However, it does demonstrate a trial court’s error in excluding witnesses at trial, because it did not understand the definition of “INCIDENT” in the Judicial Council Form Interrogatories and what the standard is in issuing evidence sanctions regarding discovery abuse .

Continue Reading The Interrogatory Says What it Says

iStock_000012781059_Small

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.”

Continue Reading Are You Following Up on Your Opponent’s Discovery Responses?

iStock_000020319155_Full

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!

 

Businessman signing a document.

 

If you perform a Lexis search using the words “Special Master” in the Code of Civil Procedure you will find “no results.” This is because there is no statutory authority for such an appointment. Yet, in the area of Construction Litigation the parties regularly stipulate and the courts appoint a Special Master to handle the case management, discovery rulings and settlement conferences under a Case Management Order.

Continue Reading Without Consent of the Parties . . .