Discovery
Requesting party required to bear the costs of responding party's production of information from computer tapes.
In
Toshiba America Electronic Components, Inc. vs. Superior Court (2004) 124 Cal.App.4th 762, 21 Cal.Rptr.3d 532, Toshiba was sued for misappropriation of trade secrets and unfair competition. Plaintiff demanded from Toshiba the production of documents which would include documents which could be recovered from back up computer tapes maintained by Toshiba in the regular course of business. The trial court ordered that Toshiba bear the cost of producing documents from those tapes. The Court of Appeal reversed, noting that while the general rule is that the responding party bears the expense typically involved in responding to discovery requests, California Code of Civil Procedure Section 2031(g)(1) places the burden on the demanding party where it is necessary to translate any data compilations into a useable form. This places the burden on the responding party to seek a protective order if it believes the cost demanded by the responding party is unreasonable.
A responding party to an interrogatory has no duty to supplement its responses if new information comes into that party's possession.
In
Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 22 Cal.Rptr.3d 282, plaintiff opposed a motion for summary judgment utilizing in part a declaration from a witness that plaintiff had not identified in its responses to interrogatories. In responding to the interrogatories plaintiff expressly reserved the right to amend or supplement the response based upon the outcome of additional investigation. Defendant asked that the witness’ declaration be precluded as a sanction for the failure of plaintiff to supplement its original answer once the identity of the witness was discovered. The Court of Appeal held that the declaration could only be precluded if the trial court had determined that plaintiff had given a willfully false answer to the interrogatory at the time it was originally served. There was no evidence here that the answer was willfully false nor was there an obligation on behalf of the responding party to later supplement its response once new information was discovered.
An objection which timely asserts the attorney-client and work product privileges is not waived in answering interrogatories for failure to produce a “privilege log”.
In
Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 15 Cal.Rptr.3d 154, plaintiff responded to interrogatories with boilerplate objections of attorney client privilege and work product privilege. Following a motion to compel further responses the trial court held that plaintiff’s failure to produce a privilege log supporting its objections constituted a waiver of the privileges. Plaintiff promptly filed a petition to the Court of Appeal, which was granted.
The purpose of a “privilege log” is to provide a specific, factual description of documents to permit a judicial evaluation of the claim of privilege. In responding to an interrogatory seeking the identity of a document, an adequate response must include a description of a document. Here, moving party should have moved to compel further responses to contest the boilerplate attorney-client and attorney work product objections. While the failure to support the objections by identifying the documents in answering the interrogatories (or by preparing a privilege log) does not waive the objections, the objecting party can expect monetary sanctions if it fails to voluntarily provide supplemental responses (or a privilege log) upon request of the adverse party.
Writings prepared for use in mediation are absolutely privileged from discovery.
In
Rojas vs. Superior Court (2004) 33 Cal.4th 407, 15 Cal.Rptr.3d 643, the plaintiff tenants in an apartment complex sued the apartment building owner and builders for the building’s defects and mold contamination. In a prior lawsuit between the building owner and the contractors, the case had been ordered to mediation following which the owner had retained various experts to inspect the building, record their findings, and eventually provide reports with opinions and conclusions. That case was eventually settled through the mediation process.
The tenants in this case sought to compel the defendant owner to produce the photographs, reports, findings and other writings created by the experts in the previous case. The California Supreme Court held that all writings prepared for use in a mediation, including derivative materials such as witness statements, raw test data, photographs and videotapes, were absolutely privileged from discovery under Evidence Code Section 119. On the other hand, a writing which is not prepared for mediation will not be protected from discovery simply by using it in a mediation or including it as part of a writing prepared for the mediation.
Confidentiality
of tax returns will be preserved except under very narrow circumstances.
In
Weingarten
v. Superior Court (2002) 102 Cal.App.4th 268, 125 Cal.Rptr. 371, the
Fourth District Court of Appeal upheld a trial court order requiring a
defendant to produce her income tax returns subsequent to the defendant
having been found liable for punitive damages. Though there is no recognized
federal or state constitutional right to maintain the privacy of tax returns,
California courts have interpreted state taxation statutes as creating
a statutory privilege against disclosing tax returns. (Schnabel v. Superior
Court (1993) 5 Cal.4th 704, 718-721 21 Cal.Rptr.2d 200). Here, it was
determined that the privilege is not absolute. The defendant was ordered
to produce her returns after she had refused to produce through punitive
damage discovery relevant, non-privileged financial records and had engaged
in a pattern of improperly obstructing efforts to obtain financial records
through means which would not violate the privilege.
The
return sought to be produced was a joint return. The court concluded that
since the wife had asserted the husband's right to privacy it would be
necessary for her husband to be given notice of the order and an opportunity
to be heard.
Sanctions
are appropriate against an attorney who advised his client not to answer
deposition questions that could lead to admissible evidence.
In
Stewart
v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 105 Cal.Rptr.
115, plaintiff's attorney took the deposition of an employee and managing
agent of defendant corporation. During the proceedings, the witness refused
to answer a number of questions on the advice of counsel on the basis that
they were not calculated to lead to the discovery of admissible evidence.
Thereafter, defense counsel made no meaningful contribution to efforts
to meet and confer to resolve the discovery dispute.
At
the hearing on plaintiff's motion to compel, the trial court chastised
defense counsel for assuming the role of the court in deciding which questions
should be answered and which should not. The court advised defense counsel
that the appropriate remedy is to adjourn the proceedings and seek a protective
order. The judge awarded monetary sanctions against defense counsel in
the amount of $2,400.00. Defense counsel sought appellate review.
In
upholding the sanctions order, the Second District Court of Appeals thoroughly
discussed the subject of deposition objections as set forth in Code
of Civil Procedure Section 2025(m) and 2025(n). When deposition questions
seek to elicit privileged information, counsel representing the aggrieved
party is obligated to make a timely objection, and an instruction not to
answer is appropriate. If the deposition question is objectionable in form
(lacking foundation, etc.), such an objection must be timely made to avoid
waiver. However, an instruction not to answer is not warranted under those
circumstances. Suspending the proceedings and seeking a protective order
is warranted if the interrogating attorney refuses to cure the defect in
the question(s), and persistents in that vein. All other objections to
deposition questions are reserved for trial, not waived, making them superfluous
at the deposition.
A
party's contribution to proscribed discovery abuses may preclude mandatory
relief from default under California Code of Civil Procedure §
473(b).
In
Lang
v. Hochman (2000) 77 Cal.App.4th 1225, 92 Cal.Rptr.2d 322, the trial
court entered default against the defendant based upon egregious discovery
abuses. A motion was then filed on behalf of defendant to set aside the
default based upon defense counsel's declaration of fault. Code of Civil
Procedure § 473(b) provides mandatory relief from default on the
basis of an attorney's affidavit of fault "unless the court finds that
the default [or dismissal] was not in fact caused by the attorney's mistake,
inadvertence, or excusable neglect." The Second District Court of Appeals
held that, where the defendant himself contributed to the discovery abuses,
and fault lies not solely with counsel, mandatory relief from the default
was not appropriate.
A
non-party deponent from whom privileged information is sought through a
"records only" or a "records and testimony"' deposition subpoena may simply
object and need not file a motion to quash.
In
a case of first impression in California, the Fourth District in Monarch
Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 93 Cal.Rptr.2d
619, ruled that a non-party who receives a deposition subpoena for "records
only" or for "records and testimony" pursuant to Code of Civil Procedure
§ 2020 may file a motion to quash in order to challenge the request,
but is not obligated to do so. The deponent may simply object to the deposition
subpoena, putting the onus upon the proponent to move to compel.
The
expert for a slip-and-fall plaintiff may perform unilateral testing without
resort to formal discovery.
In
Pullin
v. Superior Court (2000) 81 Cal.App.4th 1161, 97 Cal.Rptr.2d 447, the
defendant in a supermarket slip-and-fall case successfully moved to exclude
the testimony of plaintiff's expert who had performed his investigation
without resort to the discovery procedures of the Code. The Second District
reversed, noting that nothing in the Civil Discovery Act precludes
a party from unilateral investigation without resort to any discovery device,
provided only that the investigation is otherwise lawful.
Nothing
in the opinion specifically precludes the owner of the premises from revoking
the expert's permission to be on the premises, treating him as a trespasser,
and requesting that he leave.
California
Code of Civil Procedure § 2033(m) permits the withdrawal of an
admission secured by a party's failure to serve timely responses.
In
Wilcox
v. Birtwhistle (1999) 21 Cal.4th 973, 90 Cal.Rptr.2d 260, defendant
served plaintiff with a request that plaintiff admit that defendant was
not negligent. Plaintiff failed to serve a timely response. Defendant filed
a motion to deem the matter admitted. Plaintiff did not file opposition,
but served a tardy, unverified response denying the truth of the matter.
The trial court deemed the matter admitted pursuant to Code of Civil
Procedure §2033(k). Plaintiff then served a verified response,
again denying the truth of the matter. Plaintiff subsequently filed a motion
for reconsideration of the order deeming the matter admitted, arguing that
Section
2033(m) permits the withdrawal of an admission obtained through mistake,
inadvertence or excusable neglect.
Plaintiff's
motion was denied. Defendant then successfully moved for summary judgment.
The Court of Appeal sided with Plaintiff and reversed the summary judgment.
The Supreme Court affirmed the decision of the Appellate Court, acknowledging
that all types of admissions (including those secured through a failure
to respond to discovery) may be withdrawn if timely action is taken under
Code
of Civil Procedure § 2033(m).
This
decision specifically disapproved of the rulings rendered in a long line
of cases, including St Paul Fire & Marine lnsurance Co. v. Superior
Court (1992) 2 Cal.App.4th 843, 3 Cal.Rptr.2d 412, and Courtesy
Claims Service Inc. v. Superior Court (1990) 219 Cal.App.3d 52, 268
Cal.Rptr. 30. It has clearly eviscerated the time-honored tradition of
securing summary judgments based upon a failure to respond to requests
for admissions.
A
plaintiff who has submitted to a physical examination upon demand made
pursuant to Code of Civil Procedure § 2032 has the right to
receive a report of that examination upon demand and may depose the defense
medical examiner about the exam even if he has been withdrawn as an expert
said the court in Kennedy v. Superior Court of Marin Countv .(1998)
64 Cal.App.4th 674, 75 Cal.Rptr.2d 373.
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