A survey of discovery orders issued by courts around the San Francisco Bay Area reveal some basic truths: Judges are busy, short on staff, and handling issues far more important than your discovery squabble, and lawyers of all vintages fall into basic discovery traps. If you are new to the litigation game and have never been to trial — it is hard to grasp just how little evidence is ultimately presented to the jury. It only makes sense. No juror is going to parse through the set of 100 interrogatories you took an entire weekend to craft. So how do you go about securing the evidence you need in an intelligent and thoughtful manner? Four words summarize the goal of discovery: Get to the point. Often, however, overzealous lawyers obscure this goal by serving an endless flood of discovery. This is nothing but a disservice to your client, your case and to the overwhelmed court staff who will end up reading about your discovery dispute.
Here are some lessons learned from our survey of local discovery orders.
Resist the temptation. Many younger attorneys, whether they need to bill time or feel the need to prove themselves, draft discovery that does not get to the point. A targeted set of 12 to 20 special interrogatories can do the job of a mindless set of 100 contention special interrogatories. Instead of checking every box on the form, pay attention and check only the ones that apply to your case. Also, be careful when preparing form interrogatories to define the "incident" at the beginning of the set under §4 if necessary. The form interrogatory set was created to streamline discovery in personal injury and breach of contract cases. If your case is not a straightforward personal injury or breach of contract case, consider defining the "incident" so that each of the following questions are related to something specific.
Becoming one with the code. There is no way around it: You have to read and understand key statutes within the discovery code. When responding to written discovery, paying attention to the exact requirements of the governing code section will avoid an adverse order. In a number of discovery orders reviewed in writing this article, the court granted motions to compel because the responses did not say what was required under the relevant code section. For example, in compelling further responses to RFAs, one court ruled: "The motion is also granted as to request for admission No. 14. Plaintiff is required to answer to the extent of her ability, and if there are facts readily ascertainable to her through ordinary inquiry, she must make such an inquiry and then answer insofar as she is able. (Code Civ. Proc., §2033.220(a)) If after such an inquiry is made, plaintiff truly lacks the knowledge to admit or deny this request, she must respond in compliance with §2033.220(c). Plaintiff may not simply respond that responsive facts may be adduced at deposition."
See the "Discovery Cheat Sheet"; accompanying this article for a guide to some of the discovery statutes you should become very familiar with if you are a civil litigator.
Creating a record. It is critical to remember that every letter written, every email sent and every voice mail left is part of the written record that a judge may see. It is with this in mind that you should draft discovery and engage in the meet and confer process. Think about the tone and professionalism of your correspondence; sarcasm (as enticing as it may be) does not play well before a judge. Do not leave any part of the record that is on point, no matter how inconsequential you think it is, out of a motion. A recent order on a defense motion to compel answers at deposition sanctioned counsel for doing just that: "The court is seriously disturbed by [defense counsel's] failure to submit centrally important correspondence to the court in connection with his motion, especially the Nov. 9 letter regarding the indefinite continuance of the desired deposition. The court regards this failure as an abuse of the discovery process and as a sign that the motion lacked substantial justification. Monetary sanctions are therefore awarded against defendants’ counsel in favor of plaintiff in the amount of $2,750.00, to be paid within 20 days of the date of this order." Creating a solid record and presenting a complete record are equally important.
Act like you mean it. Trying to resolve a discovery dispute with opposing counsel may feel more like tug of war than meeting and conferring. Nonetheless, almost all key motions to compel require some kind of genuine meet and confer effort before filing a motion. "’[A]rgument is not the same as informal negotiation;’… attempting informal resolution means more than the mere attempt … ‘to persuade the [opposing party] of the error of his ways;’ and that ‘[a] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel … Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.’" Clement v. Alegre, 177 Cal.App.41 1277 (2009).
Nor can you wait until days before your deadline to compel, issue a lengthy meet and confer letter and then threaten to compel absent appropriate responses. "The time available to meet and confer before the motion filing deadline, and the extent to which the responding party was complicit in the lapse of available time, can also be relevant." Obregon v. Superior Court, 67 Cal.App.4th 424 (1998).
You will be sanctioned [absent substantial justification]. A survey of actual discovery orders showed that sanctions for discovery abuse were awarded in all but one instance. The court must impose monetary sanctions against a party or attorney who does not confer as required. CCP §2023.010(i) (failure to meet and confer is misuse of discovery process), §2023.020 (monetary sanctions for failure to confer). The sanctioned party or attorney must pay the reasonable expenses, including attorney fees, incurred by anyone as a result of the conduct. Before imposing sanctions, the court has to decide if the failure to meet and confer was egregious or merely inadequate. If the party made no effort to resolve the discovery dispute informally, it is considered an egregious violation of the meet and confer requirement and the court can impose sanctions without any further attempts to secure an informal resolution by the parties.
The more likely inquiry for a court is whether there was an adequate meet and confer effort. In making that decision, the court reviews many factors such as the past conduct of counsel, the nature and extent of the actual efforts made, the nature of the discovery requested and its importance to the case, the size and complexity of the case and the margin by which the moving party deviated from a reasonable and good faith attempt at an informal resolution. If you have made an effective and professional record, you will give the court no reason to find your conduct anything other than proper on a motion to compel.
One particularly colorful discovery order upholding sanctions — while quoting Shakespeare no less — summarized the court’s exasperation with onerous discovery:
Twenty-three years ago, the Legislature enacted the Civil Discovery Act of 1986, a comprehensive revision of pretrial discovery statutes, the central precept of which is that civil discovery be essentially self-executing. More than 10 years ago, Townsend v. Superior Court lamented the all-too-often interjection of "ego and emotions of counsel and clients" into discovery disputes, warning that "[l]ike Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement."
This case illustrates once again the truth of Townsend‘s observations, as well as highlighting the lengths to which some counsel and clients will go to avoid providing discovery (in this case by responding to straightforward interrogatories with nitpicking and meritless objections), resulting in delaying proceedings, impeding the self-executing operation of discovery, and wasting the time of the court, the discovery referee, the opposing party and his counsel.
If you follow some of the simple rules outlined here, you will avoid being the receiving end of an order like this and be able to effectively marshal all the evidence you need to make your case at trial.
Vedica Puri is a partner at Pillsbury & Levinson in San Francisco, a firm that focuses exclusively on protecting insurance policyholders. She can be reached at email@example.com or 415-433-8000.