Have you ever had a judge give you a ruling in discovery that was so absolutely wrong that you knew you had to fight it? Yet, everyone you talk to tells you that it is almost impossible to get a writ in discovery so you just live with the ruling. Appellate Lawyer Jerry Clausen from San Francisco wrote a great article in Plaintiff Magazine titled “Obtaining Review of Discovery Rulings.” Here it is for your enjoyment.
As a new year of litigation begins, here are a few significant changes to the discovery statutes that you should be aware of: Continue Reading NEW YEARS RESOLUTIONS–Statutory Changes to the Discovery Act
A fellow Bay Area attorney contacted me about being sanctioned in excess of $5,000. He was mortified, as it was the first time he had ever been sanctioned and couldn’t believe the amount he was sanctioned under the circumstances. After I had spoken to him about his remedies, one being, a Writ (pdf), he wrote me the following e-mail.
Just wondering, but what does the phrase “acted with substantial justification” mean in the sanctions statute for motion to compel depo testimony, CCP 2025.480 (pdf)? Continue Reading Acted with Substantial Justification
The long awaited California Supreme Court decision on whether or not witnesses statements are protected by the work product privilege and thus not discoverable even in responding to a Form Interrogatory is in. The Supreme Court issued its opinion in Debra Coito v. Superior Court of Stanislaus County, S181812, Ct. App. F057690 this morning at 10:00 a.m. The Supremes held the following. Continue Reading Witness Statements Can Be Discoverable!!
I recently reviewed a case management order in a complex construction case venued in Southern California. The order required all parties to produce:
Any and all relevant non-privileged and non-protected documents (consistent with California Evidence Code Section 250), including but not limited to job files, building contracts, agreements, notes, correspondence, photographs, videotapes, diagrams, plans, specifications, shop drawings, “as-built” plans, calculations, journals, invoices, purchase orders, change orders, addenda reports (including reports prepared by consultants and design professionals for the original construction), job diaries, receipts, project files, site records, daily job logs, field orders, superintendent reports, requests for clarification, requests for information, time cards, governmental inspection punch lists and sign off sheets and invoices relating to the construction, repair, or maintenance of the real property involved in this lawsuit.
There are so many things wrong with this request I do not know where to begin.
Bay Area Insurance Coverage Attorney John Podesta brings us this “how to” article on insurance litigation. John has handled hundreds of coverage cases in the ares of construction litigation and other complex matters for over twenty years. He is a nationally known speaker on insurance coverage issues in construction and has written several articles on the subject.
*********************
Your clients have been sued by their insurance company for Declaratory Relief. The insurer asserts that there is no coverage under your clients’ liability insurance policy for a claim made against them. In deciding how to proceed, there are a few things to remember in dealing with insurance litigation. First, the duty to defend is a legal question based upon the “potential” that the lawsuit against your client could result in damages covered by the insurance policy. Montrose Chemical Corp. v. Superior Court (1995) 6 Cal. 4th 287, 300 (pdf). For the duty to defend, therefore, think summary judgment, rather than trial. Second, for indemnity (actual coverage): is the carrier defending or not? With regard to indemnity, whether the insurance company is defending affects the burden of proof. Ultimately, the insured should be prepared to prove, in order to recover indemnity or settlement costs, that their liability is in fact covered by the insurance policy.
UPDATED 10/23/2020
There are three motions that you can bring–(1) Motion to Compel, (2) Motion to Compel Further Responses, and (3) Motion to Have Admissions Deemed Admitted. All of them have their place in your discovery plan but two of them–Motion to Compel Further Responses and Motions to Have Matters Deemed Admitted must be in your arsenal. Though they appear to be the same motions you would use for interrogatories, inspection demands, and depositions there are a few noteworthy twists and turns.
In the spirit of my most recent blog, “OBJECTION!! There’s this case that says . . . “, here is a list of proper and improper objections to deposition questions that you should also keep in the back of your legal pad.
OBJECTIONS TO DEPOSITION QUESTIONS
Objections to the form of questions are waived if not raised at the deposition. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:721 (citing C.C.P. §2025.460 (pdf)(b)).
Instructing witness not to answer is improper unless objecting on grounds of privilege. CCP §2025.460 (pdf); Stewart v. Colonial Western Agency, Inc.(2001) 87 CA4th 1006 (pdf), 10015.
Speaking objections which counsel explains his rationale for the objection is improper as it is usually used as a tactic to give the deponent a heads up that the area of questioning is dangerous and how he should answer. This is a form of “coaching” the witness and a protective order may need to be sought. See CEB, California Civil Discovery Practice (4th ed. 2010) §6:100.
Have you ever been in a middle of a deposition and found yourself saying “OBJECTION!! There’s this case that says . . . “ but you can’t quite remember what the name was, where you saw it or even where you might find it? And, yet, it is right on point. Well, the following is a list of cases and statutes for depositions that you should keep in the back of your legal pad as they may come in handy.
SCOPE OF DEPOSITION
Discovery is permissible if the information sought is relevant to the subject matter involved and it is admissible or reasonably calculated to lead to discovery of admissible evidence. C.C.P. §2017.010 (pdf)
Admissibility is not the test. Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:68 (citing C.C.P. §2017.010 citing Davies v. Superior Court (1984) 36 C3d 291 (pdf), 301).
Fishing expeditions are permissible. Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:728 (citing C.C.P. §2017.010 citing Greyhound Corp. v. Superior Court(1961) 56 C2d 355 (pdf), 384).
Identity and location of witnesses are discoverable. C.C.P. §2017.010
Existence, description, nature, custody, condition and location of any document, tangible thing, or land or other property is discoverable. C.C.P. §2017.010
“Show me” questions (requesting a deponent to demonstrate an action) at a videotaped deposition are allowed. Emerson Electric Co. v. Superior Court (1997) 16 C4th 1101 (pdf), 1111.
Improper to ask a party to state their legal contentions. Rifkind v. Superior Court(1994) 22 CA 4th 1255 (pdf), 1259. This is because legal contentions are developed by the lawyer. The proper discovery device to find out about legal contentions are interrogatories.
Documents reviewed to prepare for deposition are discoverable. International Insurance Co. v. Montrose Chemical Corp. of California (1991) 231 CA3d 1367 (pdf), 1372-73. However, privileged documents do not lose their privileged status (Sullivan v. Superior Court (1972) 29 CA3d 64 (pdf), 68), unless the witness claims no present memory of the events recorded in the statement given to his or her attorney and uses that statement to testify. Kerns Const. Co. v Superior Court (1968) 266 CA2d 405 (pdf), 410.
CONDUCT DURING DEPOSITION
Team questioning not per se abusive. Rockwell International Inc. v. Pos-A traction Industries (9th Circuit 1983) 712 F2d 1324, 1325–applying California Law. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:718.1
Coaching the witness during deposition not prohibited. Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:721. However, Hall v. Clifton Precision (ED PA 1993) 150 FRD 525, 528 (decided under Federal Rules) states that “[o]nce a deposition begins, the deponent must be left “on his or her own.”
Deposition officer may not suspend taking testimony unless there is a stipulation of all counsel or the deposition is suspended for a party to seek a protective order. C.C.P. §2025.470 (pdf).
NEXT: DEPOSITONS–What are the Real Objections?
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.