"Motion to Compel Further Responses"

The purpose of discovery is to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1 citing Greyhound Corp. v. Superior Court (1961) 55 C.2d. 335, 376.

Serving “[a]ppropriate written interrogatories are one of the means to accomplish the general goals of the discovery process designed to facilitate a fair trial.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 CA4th 377, 389)

“Interrogatories expedite the resolution of lawsuits … [by detecting] sham claims and defenses … [and] may be employed to support a motion for summary judgment or a motion to specify those issues which are without substantial controversy.”  Deyo v. Kilbourne (1978) 84 CA3d 771, 779

When responding to interrogatories, the Discovery Act requires a party to make a reasonable and good faith effort to obtain the information before responding to the interrogatories. Regency Health Services, Inc. v. Superior Court (1998) 64 CA4th 1496.  A party cannot plead ignorance to information, which can be obtained from sources under his control. Deyo v. Kilbourne (1978) 84 CA3d 771, 782  This includes a party’s lawyer Smith v. Superior Court (Alfred) (1961) 189 CA2d 6, agents or employees Gordon v. Sup. Ct.  (1984) 161 CA 3d 151, 167-168, family members Jones v. Superior Court  (1981) 119 CA 3d 534, 552. See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1051-1060.  This means that an attorney can’t just pawn off the responses to the client or spend an hour and dictate the responses off the top of his head.  See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390.

Unfortunately, the propounding party often receives responses to their interrogatories that include a “General Objection” or a “Preliminary Statement”, which is improper, and garbage objections with no substantive responses. Responding parties even use garbage objections to Form Interrogatories which were drafted by the California Judicial Council (The Administrative Office of the Courts) and considered objection proof as to form.   See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:933.

It is patently obvious ungrounded refusal to answer, prolonged delay and incorrect answers to interrogatories seriously inhibit “the principal aim of discovery procedures in general [which] is to assist counsel to prepare for trial….”  Smith v. Circle P. Ranch Company, et al. (1978) 87 Cal.App.3d 267, 273.

Bring your motion to compel further responses to interrogatories as you are entitled to proper responses and, hopefully, the court will make it clear to the responding party that such abuse of the discovery process will not be tolerated.

 

Hand of referee with red card and whistle in the soccer stadium.

Recently I saw the following document response and without even looking at the document request I knew that the response was bad and a motion to compel further responses was going to need to be filed:

Objection, as some or all of these documents are equally or more available to Plaintiffs. Without waiving, responding party states that all responsive, unprivileged, known, and reasonably available documents will be produced by Defendant, if they have not already been produced to Plaintiffs.

 

Continue Reading DISCOVERY GAMES AND MISCONCEPTIONS—What is Wrong with this Document Response?

iStock_000000215562XSmall.jpgLast week I received the following e-mail from one of my readers:

I have read your articles with interest and respect for some time now; I find them excellent plus.I have a friend who is acting pro per in a civil case. Suffice it to say she can’t afford or get an attorney.

Opposing counsel has made a mockery of discovery by making (putrid) garbage objections to 99% of discovery sent him. He uses every boilerplate objection and has even objected saying some discovery was “unintelligible” when my friend didn’t define a name that was the name of the defendants product…  Opposing counsel is clearly abusing the intent of discovery dragging my friend into “Meet and Confer Hell” while knowing that as a pro per, my friend can not get anything more at this point than her costs of filing a Motion to Compel (which she has won) and photocopy costs. On the other hand, and I speak with authority, opposing counsel has created enough work for himself to literally turn a reasonably moderately sized case into a major matter and I would estimate he has made more than $250,000 in fees from his client (no insurance company involved) in 2011.

My point being: There is clearly a wrong here (major discovery abuse and a lack of any good faith) and no remedy.Am I being naive in thinking something should be done or a remedy created? Continue Reading Am I Naïve to Think Something Should Be Done?

Boxing Women.jpgYou 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.

Continue Reading GAME ON-The Opposition

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Motions to compel further responses to interrogatories, requests for productions of documents and requests for admissions require that the motion be filed within 45 days. CCP §§ 2030.300(c), 2031.310(c) and 2032.290(c)  Delaying the filing of the motion waives a party’s right to compel further responses. The case of Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681 (pdf) at 685 (Pre-1986 Discovery Act) takes the position that the court lacks jurisdiction to order further responses after time has expired. The Second District Court of Appeal upheld this rationale in Sexton v. Superior Court (1987) 58 Cal. App. 4th 1403 (pdf), 1410.

Continue Reading You’ve Blown the Dreaded Draconian 45-Day Rule-Now What Do You Do?