There 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 .
I am happy to report that there were no substantive changes to the Discovery Act. The only change to any of the discovery codes is C.C.P. Section 2025.510 which involves deposition transcripts. As you can see by the 2014 Amendment those changes were more edits than changes:
I have always been a strong advocate that you should be awarded sanctions if you had to bring a motion to get the relief you were entitled to even if the other side complied prior to the hearing on the motion. However in the case of Evilsizor v. Sweeney (2014) 230 CA4th 1304, the First District Court of Appeal had an interesting take on the issue.
W. George Wailes, a Business Trial Attorney and Director at Carr McClellan, in Burlingame, CA brings us this warning from the California Court of Appeal about what could happen to a third party that refuses to comply with a subpoena for electronically stored information.
The California Court of Appeal recently provided rare guidance regarding a third party’s obligations to produce electronically stored information (ESI) in response to a subpoena. In Vasquez v. California School of Culinary Arts, Inc. (Sallie Mae) (2014) 230 CA4th 35, the court defined subpoenaed parties’ obligations to extract existing data from computer systems and upheld an award of attorneys’ fees against the recalcitrant third party. The court concluded that it is unreasonable for a third party to withhold ESI that exists in its computer systems on the basis that outputting the ESI entails creating a “new” spreadsheet.
Recently I was contacted to help on a party’s Motion to Compel Further Responses to Form Interrogatories, Requests for Production of Documents, and Requests for Admissions. In viewing opposing counsel’s responses to the discovery, I gazed upon the General Response and Objections preamble in absolute astonishment. It read as follows:
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
Over lunch last week, a local attorney was complaining to me about his case that is going to trial in July. On the last day to serve written discovery, Plaintiff counsel had served each of his five clients, on behalf of each of her three plaintiffs, a separate set of 50 specially prepared interrogatories, 35 requests for documents, 70 requests for admissions and 17.1 of the Form Interrogatories for a total 750 specially prepared interrogatories and 525 requests for documents, 1050 requests for admissions and 4200 responses to Form Interrogatory 17.1 equaling 6525 discovery requests to be responded to 30 days before trial. Continue Reading YOU NEED TO FILE A MOTION FOR A PROTECTIVE ORDER!!
Last 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?
Today I read a great article by Minnesota attorney Randall Ryder titled “New Attorney? Don’t Get Intimidated by Opposing Counsel.” The article struck a cord with me as it is a proponent of the same philosophy that I am advocating in my own blog—don’t be intimidated by a bully, do not react with words in kind and use the “Rules” to win. Though the article is directed towards new attorneys, this is good advice for every attorney. Continue Reading Don’t Get Intimidated and Play by the Rules