............................................................................................Chapter 4: Discovery

..........................................................................................A. Discovery Philosophy

.......................................................................................Note on Initial Disclosures
p. 329, insert new second paragraph within Note on Initial Discovery: Failure to comply can have dramatic consequences (not applicable to California state discovery). Violating what appears to be a seemingly innocuous part of the initial core discovery requirement can be disastrous. For example, the two lead plaintiffs in a class action suit failed to disclose their damage calculations, as required by FRCP 26(a)(1)(A)(iii). The case went to trial. The jury returned partial verdicts in favor of these lead plaintiffs. Although there was no finding of bad faith, the Ninth Circuit affirmed the trial court's preclusion of their damage evidence as a sanction for breaching the federal disclosure requirement. Hoffman v. Construction Protective Services, Inc., 541 F.3d 1175 (9th Cir.2008).

................................................................................ ...........B. Scope of Discovery
1. Informal Discovery
p. 333, Note 1, add following to paragraph, just after "trial?": Under Cal. Penal Code § 146(b), "Every *** person pretending to be a public officer, who, under the pretense or color of any process or other legal authority, does any of the following, without a regular process or other lawful authority, is guilty of a misdemeanor: (a) Arrests any person or detains that person against his or her will. (b) Seizes or levies upon any property. (c) Dispossesses any one of any lands or tenements." Could this code section be interpreted to apply to the Pullin limitation on legal violations?

2. Relevance and Admissibility
p. 334, insert new penultimate paragraph after "(1996)" and "As": As you work your way through the discovery materials that follow in this chapter, bear in mind that a major purpose of discovery is to learn in advance of trial--or a dispositive motion like summary judgment--what a witness will say or is entitled to claim at a later point in the lawsuit. In a deposition, for example, a plaintiff might testify that he never personally heard his boss state a racial epithet. He cannot later oppose summary judgment--in order to create a triable issue of fact--that his boss did so. As noted by the California Court of Appeal: “The trial court saw that flip-flop for what it was, and properly excluded it, based on well-settled case law that a plaintiff cannot create a triable issue of fact and thereby escape summary judgment by contradicting his own prior testimony ... [because] ‘[a]dmissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment.’ ” Villanueva v. City of Colton, 160 Cal.App.4th 1188, 1196, 73 Cal.Rptr.ad 343, 351 (2008).

3. Protection from Discovery
.....(a) Privacy
p. 346, Note 2(a) (renumber remaining notes): Citing Pioneer Electronics--wherein the plaintiff's interest in obtaining contact information outweighed the modest privacy invasion of the plaintiff's proposed opt-out letter---the California Court of Appeal determined that the trial court abused its discretion by denying the plaintiff driver's motion to compel disclosure of the identity and residential contact information of potential class members---in a putative class action against courier company alleging misclassification of drivers as independent contractors rather than employees. There was insufficient evidence of any serious privacy concern on the part of company's drivers arising from such disclosure. Lee v. Dynamex, Inc., 166 Cal.App.4th 1325, 1338, 83 Cal.Rptr.ad 241, 251--252 (2008).

p. 346, new Note 2(b): Also citing Pioneer Electronics, the Court of Appeal resolved a privacy issue involving eight employee plaintiffs' requested disclosure of fellow employee contact and witness information (from the defendant employer). This was a seemingly routine request. The case sought payment for overtime hours, plus all non-compensated regular hours. These plaintiffs sought the name, address, and phone number of other employees possessing knowledge of the relevant facts---from thousands of fellow employees. The defendant provided name and position responses for somewhere between 2,600 and 3,000 employees. It objected to further discovery, however, regarding their addresses and telephone numbers. You are the judge. What procedure should you employ to balance the plaintiff's right to wtiness information and the fellow employees' right to privacy? See Puerto v. Superior Court, 158 Cal.App.4th 1242, 70 Cal.Rptr.3d 701 (2008).

.....(b) Privilege
p. 350, new Note 2(a): Courts are empowered to hold in camera hearings to determine whether a communication is privileged. Under Cal. Evid. Code § 915(a), the presiding officer is generally prohibited from requiring disclosure of information claimed to be privileged, in order to rule on a claim of privilege. Under section 915(b), however, when a court is ruling on such a claim--and is unable to do so without requiring disclosure of the information claimed to be privileged--"the court may require the person from whom disclosure is sought *** to disclose the information in chambers without of the presence and hearing of all persons except the person authorized to claim the privilege *** ." If the judge (or referee) determines that the information is in fact privileged, neither the judge nor any other person may ever disclose, what was disclosed in the course of the proceedings in chambers--without the consent of a person authorized to permit disclosure. So "the rule prohibiting courts from ordering the disclosure of the content of an attorney-client communication sought to be deemed privileged in order to rule on its admissibility, is “ ‘not absolute,’ in the sense that a litigant may have to reveal some information in camera to permit the court to evaluate the basis for the claim." Costco Wholesale Corp. v. Superior Court, 161 Cal.App.4th 488, 74 Cal.Rptr.ad 345, 355, review granted and opinion superseded, 79 Cal.Rptr.ad 15, 186 P.ad 392 (2008).

p. 350, new Note 2(b): Trade secret litigation poses a special problem. The Uniform Trade Secrets Act in Cal. Civ. Code §3246, et seq., provides a statutory cause of action for the misapporiation of a trade secret. When adopting the 1984 Uniform Trade Secrets Act, the California Legislature also enacted a separate statutory provision in section 2019.210. It requires that: “[i]n any action alleging the misappropriation of a trade secret under [the Uniform Trade Secrets Act], * * * before commencing discovery relating to the trade secret, the party alleging the misappropriation shall identify the trade secret with reasonable particularity.” The legislative concern was that a plaintiff could be suing to obtain information about the defendant's confidential business operations. The party claiming the privilege thus has the initial burden of proving its existence. Assuming so, the California Court of Appeal offered the following resolution in Citizens of Humanity v. Costco Wholesale Corp., 171 Cal.App.4th 1, 13, 89 Cal.Rptr.3d 455, 465 (2009) (citing ealrier decisions):

the party seeking discovery must make a prima facie, particularized showing that the information sought is relevant and necessary to the proof of, or defense against, a material element of one or more causes of action presented in the case, and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit. It is then up to the holder of the privilege to demonstrate any claimed disadvantages of a protective order. Either party may propose or oppose less intrusive alternatives to disclosure of the trade secret, but the burden is upon the trade secret claimant to demonstrate that an alternative to disclosure will not be unduly burdensome to the opposing side and that it will maintain the same fair balance in the litigation that would have been achieved by disclosure.

.....(c) Work Product
p. 357, Note 1 Edible Widgets Hypothetical, add following just after "Why?": Assume Lee dictates another memo that incorporates his mental impressions of the case with the statements of a witness who overheard a (loud and public) conversation between Pam and Paul regarding this litigation, which would not be privileged. Is that document discoverable? In whole, or in part? See Costco Wholesale Corp. v. Superior Court, 161 Cal.App.4th 488, 74 Cal.Rptr.ad 345, 353, review granted and opinion superseded, 79 Cal.Rptr.ad, 1 186 P.ad 392 (2008).

4. Waiver
p. 365 & 418 n.4 Jasmine update: Review dismissed, and cause remanded, 76 Cal.Rptr.ad 172, 182 P.ad 513 (2008). In light of the decision in Rico v. Mitsubishi, 42 Cal.4th 807, 68 Cal.Rptr.ad 758, 171 P.ad 1092 (2007), review was dismissed, and all pending motions were deemed moot. Regarding Mitsubishi, see casebook p. 364 n.2.

p. 365: The California Supreme Court removed Jasmine from its active case list. It did so on the basis of its Rico decision: click here.

p. 370, Note 5, add the following, just after "(2004)": (corporate target of government investigation waived attorney-client and work product privileges as to shared documents). But cf. Regents of University of California v. Superior Court, 165 Cal.App.4th 672, 683, 81 Cal.Rptr.ad 186, 194 (2008) (cooperation with federal agencies was "coerced" within meaning of Evidence Code § 912(a), so that providing privileged documents did not waive asserted privileges). ..
.................
.................................................................................... ......C. Discovery Devices
2. Depositions
p. 379, insert as new first paragraph, just under "----------": California deposition practice is succinctly summarized in Serrano v. Stefan Merli Plastering Co., 162 Cal.App.4th 1014, 1033, 76 Cal.Rptr.ad 559, 572 (2008) (court reporter service must charge a “reasonable” fee for expedited deposition transcripts).

3. Physical and Mental Examinations
.....(b) Mental Examinations

p. 391, errata: footnote 5 should be footnote 9.

4. Production of Documents and Things
p. 400, at end of paragraph 2, after "California.": This code section is being replaced by the Interstate and International Depositions and Discovery Act. Certain forms became effective on January 1, 2009 to implement it. The remainder of the Act becomes effective on January 1, 2010.

5. Requests for Admission
p. 401, first paragraph, insert on line 7, after "trial." and before "See": Good reason includes a reasonable---but mistaken---belief that a plaintiff could recover under respondeat superior. Miller v. American Greetings Corporation, 161 Cal.App.4th 1055, 1066, 74 Cal.Rptr.ad 776, 785 (2008).

p. 405, new Note 5: The trial court's discretion, when ruling on a motion to withdraw or amend an admission, is extensive but not unlimited. As stated by the California Court of Appeal, in New Albertsons, Inc. v. Superior Court, 168 Cal.App.4th 1403, 1421, 86 Cal.Rptr.3d 457, 470 (2008):

Because the law strongly favors trial and disposition on the merits, any doubts in applying [CCP] section 2033.300 must be resolved in favor of the party seeking relief. Accordingly, the court's discretion to deny a motion under the statute is limited to circumstances where it is clear that the mistake, inadvertence, or neglect was inexcusable, or where it is clear that the withdrawal or amendment would substantially prejudice the party who obtained the admission in maintaining that party's action or defense on the merits.

7. Electronic Discovery
p. 412, add new para. between "FRCP 45(d)(1)(D)." and For commentary": An attorney's ethical obligations may preclude her from tendering a host of "inadvertent" half-truths. Doing so resulted in an $8,500,000 sanction and the reference of a half dozen lawyers to the State Bar of California. One may not: (1) agree to produce certain categories of documents, and then not produce all of the documents within that category; (2) choose not to look in the correct location for discoverable documents, then represent to an adversary or a judge that his internal document search is sufficient; (3) disclose the equivalent of 1,200,000 pages of marginally relevant documents, while hiding 46,000 critically important ones; (4) bring such inadvertent failures to produce documents to the attention of a senior attorney, then silently acquiesce in the lawyer's non-disclosure; and (5) make unsubstantiated assurances that all electronic discovery has been provided by his client, or by another lawyer in his law firm. Qualcomm, Inc. v. Broadcom Corp., [2008 WL 66932], partially vacated regarding order denying the self-defense exception as to attorney-client privilege [2008 WL 638108] (S.D. Cal.2008).

p. 419, new Note 8: The California Electronic Discovery Act (which essentially mirrors the 2006 changes to the FRCP) became effective on June 29, 2009. It establishes procedures to obtain discovery of electronically stored information (ESI). This legislation refers to information stored in any electronic medium. In addition to the usual inspection of documents, tangible things, or land, ESI may be obtained via copying, testing, or sampling. CCP § 2016.020(d); § 2031.010.
.....If a party objects to a request for ESI---on the grounds that the source is not reasonably accessible because of undue burden or expense, and the responding party does not intend to search the source in the absence of an agreement or court order---the responding party shall simultaneously identify the categories of sources of ESI that are supposedly not reasonably accessible. The responding party thereby preserves any objections it may have relating to its ESI (e.g., no privilege waiver). CCP § 2031.285.
.....If the responding party objects to a specified form for the production of its ESI---or if no form is specified in the demand---the responding party must state the form in which it intends to produce each type of ESI. If a demand for production does not specify a form or forms for producing a type of ESI, the responding party must produce the information in the form or forms in which it is ordinarily maintained-or in a form that is reasonably usable. The responding party need not produce the same ESI in more than one form. CCP § 2031.280.
.....A party seeking a protective order, or a party objecting to or opposing a demand for the production or inspection of ESI-because the information is from a source that is supposedly not reasonably accessible-has the burden of so demonstrating. If the ESI resides in a source that is not reasonably accessible, the court may nonetheless order discovery if the demanding party shows good cause. The court may then allocate the expense of discovery. It may also limit the frequency or extent of discovery of ESI, even from a source that is reasonably accessible. CCP § 2031.060(c); (f).
.....New safe-harbor provisions prohibit the court from imposing sanctions on a party or attorney for failure to provide ESI that has been lost, damaged, altered, or overwritten as the result of the routine, good-faith operation of an electronic information system.

........................................................................................................ D. Experts
2. Conflict of Interest
p. 425, Note 2, add following at end of Note: Citing Schreiber, the Court of Appeal cogently articulated the difference between a treating physician who is a "percipient expert" at trial, and a "retained expert" in Easterby v. Clark, 171 Cal.App.4th 772, 782, 90 Cal.Rptr.3d 81, 90 (2009):

Like any other expert, a treating physician may provide both fact and opinion testimony, including testimony on the cause of a patient's injuries. The difference between a treating physician who testifies as an expert and a retained expert “is not the content of the testimony, but the context in which he became familiar with the plaintiff's injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion.” Specifically, a retained expert is “one ‘retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action’ ” and a “treating physician is not consulted for litigation purposes, but rather learns of the plaintiff's injuries and medical history because of the underlying physician-patient relationship.”

p. 426, insert after first introductory sentence: They usually arise in one of two contexts: (1) in cases of successive representation, where an attorney represents a client with interests potentially adverse to a former client; or (2) simultaneous representation, where the attorney represents multiple parties, with potentially adverse interests. As affirmed by the California Supreme Court: “A trial court's authority to disqualify an attorney derives from the power inherent in every court ‘[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.’ ” In re Charlisse C., 45 Cal.4th 145, 159, 84 Cal.Rptr.ad 597, 606, 194 P.ad 330 (2008).

* p. 426, new Note 7: As to sanctions, CCP § 2034 does not provide for monetary sanctions. Evidence exceeding the scope of pre-trial exchange information will, instead, be excluded. The extensive legislative attention to the expert witness exchange can be seemingly frustrated when an expert testifies differently at trial than in her deposition. In this instance, "[l]ike any other witness, the fact that an expert's testimony at trial differs from his deposition testimony goes to the expert's credibility; it does not, without some further evidence of prejudice to the opposing party, serve as ground for exclusion." Easterby v. Clark, 171 Cal.App.4th 772, 781, 90 Cal.Rptr.3d 81, 89 (2009) (citing Bonds).

* p. 426, new Note 8: In your first procedure course, you learned that FRCP 26(e)(2) requires the parties to automatically update witness information in a timely fashion. As you learned in Biles (p.406), there is no similar continuing duty to update responses in California courts. After a timely CCP § 2034 expert witness exchange, assume that one of the experts prepares a new report. Must all such reports be created by the date specified in the exchange? In the absence of a statutory prohibition against creating new reports, is a court powerless to control a perceived abuse? See Boston v. Penny Lane Centers, Inc., 170 Cal.App.4th 936, 951--952, 88 Cal.Rptr.3d 707, 720 (2009).

.....................................................................E. Systemic Oversight
1. Meet and Confer
p. 437, new Note 3: Section 2024.020(a) specifies that “[e]xcept as provided in this chapter, any party shall be entitled as a matter of right *** to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” If a party properly notices a discovery motion to be heard on or before the discovery motion cutoff date, that party has a right to have the motion heard. As stated by the California Court of Appeal: "But the fact that a party does not have a right to have a discovery motion heard after the discovery motion cutoff date does not mean the court has no power to hear it, or that the court errs in hearing it." Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc., 165 Cal.App.4th 1568, 1586, 82 Cal.Rptr.ad 64, 77 (2008).

2. Discovery Sanctions
p. 440, before or after Slesinger case: The California Court of Appeal recently decided the "obnoxious car odor" case, reversing the trial judge for failing to impose terminating sanctions. For Doppes, click here.

p. 440, after first case citation, ending in "(2009).": The CCP is not the only code containing sanctions provisions. Cal. Family Code § 3027.1(a) authorizes a party---falsely accused of child abuse or neglect---to seek sanctions in a child custody proceeding.

p. 452, Note 2, add the following, just after "victory?": Would it matter if the sanctioned party (Slesinger) had engaged in prior discovery abuse? Should a repeat offender's past abuse be taken into consideration when deciding the appropriate sanction? See Liberty Mutual Fire Insurance Co. v. LcL Admistrators, Inc., 163 Cal.App.4th 1093, 1110, 78 Cal.Rptr.3d 200, 209--210 (2008) (relevance of repeated abuse). Note that sanctions for a frivolous suit against a governmental entity can be comparatively costly. Under CCP § 1038(a), regarding proceedings under the California Claims Act: "the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party." Under subsection (b), “'Defense costs,' as used in this section, shall include reasonable attorneys' fees, expert witness fees, the expense of services of experts, advisers, and consultants in defense of the proceeding, and where reasonably and necessarily incurred in defending the proceeding."

p. 452, Note 4, add the following, just after "6(A)).": Should a trial judge also have the inherent authority to sanction an attorney who violates an in limine order, where the violation results in a mistrial? See Clark v. Optical Coating Laboratory, Inc., 165 Cal.App.4th 150, 167, 829 80 Cal.Rptr.3d 812, (2008), citing Slesinger and Bauguess (casebook, p.19) in reversal of sanction of more than $1,000,000.

* p. 453, at end of Note 6: Spoilation of evidence may also be sanctioned as an abuse of the discovery process under CCP section 2023.010---which provides only a partial listing of potential misuses. As noted by the Court of Appeal: "While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions." Williams v. Russ, 167 Cal.App.4th 1215, 1223, 84 Cal.Rptr.3d 813, 820 (2008).

4. Discovery Completion
p. 462, regarding Fairmont: The first paragraph refers to the completion of discovery "15" days before the date initially set for trial. That period was later augmented to "30" (with motions being heard no later than 15 days prior to trial).

p. 468, add new Note 3: What happens if a party fails to comply with its discovery obligations, but a new trial is set for unrelated reasons? Citing Fairmont, the California Court of Appeal reversed a trial judge who had precluded a party from using an expert witness in the second trial---based on that party's failure to comply with its expert witness exchange requirements in the first trial. CCP § 2034(j) [now 2034.300] commands as follows: "the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to * * * (a) List that witness as an expert under Section 2034.260." Per the Court of Appeal: "But only the party who makes a demand for exchange of expert witness information and the party upon whom the demand is made are required to comply with the statutory procedures for exchanging expert witness information. From this, it reasonably follows that, where no demand is made by any party, no party is required to comply with the statutory exchange requirements." Hirano v. Hirano, 158 Cal.App.4th 1, 6, 69 Cal.Rptr.3d 646, 649 (2007).

5. Punitive Damages
p.473, add new Note 4: Citing Jabro, the California Court of Appeal has provided a thoughtful summary of the section 3295(c) process for pretrial discovery of punitive damages. Guardado v. Superior Court, 163 Cal.App.4th 91, 95, 77 Cal.Rptr.ad 149, 153 (2008) (finding of substantial probability plaintiff would prevail on the merits did not bar defendant's peremptory challenge to judge).