Judge: Christopher K. Lui, Case: 21STCV37775, Date: 2023-09-29 Tentative Ruling

Case Number: 21STCV37775    Hearing Date: September 29, 2023    Dept: 76

The Court has not prepared a tentative ruling on the three discovery motions set for hearing on September 29, 2023. 

However, the Court on September 28, 2023 issued the following order, which is reproduced below for the parties' benefit in preparing for the September 29, 2023 hearing. 

ORDER REGARDING:

(1)        ISSUANCE OF ORDER TO SHOW CAUSE (OSC) WHY THE COURT SHOULD NOT APPOINT A DISCOVERY REFEREE

(2)        MANDATORY PROCEDURE FOR FURTHER DISCOVERY MOTIONS IN THIS CASE

OSC Hearing Date:  November 6, 2023 at 8:30 a.m. in Department 76

As stated in an oft-cited treatise on civil litigation, 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. 355, 376).)

The Court of Appeal has stated, “Civil discovery is intended to operate with a minimum of judicial intervention. ‘[I]t is a “central precept” of the Civil Discovery Act ... that discovery “be essentially self-executing[.]”’” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (internal citations omitted).)  Discovery in this case is proceeding on a path that clearly is not one of self-executing discovery.  A high volume of discovery disputes, as seen in the instant case, suggests either a total lack of cooperation by counsel, or a desire to use the discovery process as a battlefield unto itself rather than for its legitimate purpose of uncovering facts relating to the parties’ claims and defenses. 

The Court has a limited number of available hearing dates for discovery motions, because it is necessary for the Court to manage its resources and prevent the motion calendar from becoming so large that it threatens the ability to conduct trials.  Thus, it is not uncommon for parties to find that the only available hearings are months in the future.  When discovery disputes in a single case—such as this case—require significant court resources and multiple hearings to resolve, the Court’s ability to manage its inventory and provide litigants with opportunities to be heard is threatened.  In essence, cases with the type of discovery warfare seen here are an undue burden on access to justice for everyone. 

The following discovery motions have been filed in this case:

1.     Defendant Southwest Airlines’ motion to compel Plaintiff to provide further responses to requests for production of documents, set one. (ruling issued 2/28/23)

2.     Plaintiff’s motion to compel Defendant Southwest Airlines to provide further responses to Plaintiff’s requests for production of documents, set one. (set for hearing on 9/29/23)

3.     Plaintiff’s motion to quash subpoena to third party Kaiser Permanente. (ruling issued June 5, 2023)

4.     Plaintiff’s motion to compel PMK deposition of Defendant Southwest Airlines regarding interactive process.  (vacated at informal discovery conference (“IDC”), 2/27/23)

5.     Plaintiff’s motion to compel PMK deposition of Defendant Southwest Airlines regarding actual accommodations.  (vacated at IDC, 2/27/23)

6.     Plaintiff’s motion to compel PMK deposition of Defendant Southwest Airlines regarding Plaintiff’s workers' compensation claims.  (vacated at IDC, 2/27/23)

7.     Plaintiff’s motion to compel Defendant Southwest Airlines to provide further responses to Interrogatories, set one.  (set for hearing on 9/29/23)

8.     Plaintiff’s motion to compel Defendant Southwest Airlines to provide further responses to requests for production, set one.  (set for hearing 9/29/23)

9.     Plaintiff’s motion to compel Defendant Sedgwick Claims Management to provide further responses to requests for production, set one.  (set for hearing on 9/29/23)

The Court also held IDCs with the parties on February 27, 2023, April 4, 2023, and June 5, 2023.

The burden on access to justice created by this case is illustrated not just by the volume of motions filed, but also by motions not filed:  Plaintiff’s counsel used the CRS system to reserve two motions to compel further discovery responses:  one for hearing on October 4, 2023 (CRS no. 311486227719) and another for hearing on October 13, 2023 (CRS no. 081566416871).  The motions corresponding to these two motions were never filed.  By reserving these hearings and wasting them, Plaintiff’s counsel precluded other parties from using those hearings.[1] 

The Court notes that the discovery disputes appear to continue beyond the September 29, 2023 hearings:  Plaintiff’s counsel has reserved a hearing on a motion for protective order to be heard on January 24, 2024.  (CRS no. 287714313239).

The Complaint in this case alleges fairly straightforward employment claims.  In the Court’s experience, most employment cases do not involve any discovery motions, but in a few cases, a handful of discovery motions are filed.  Based on the Court’s experience, the volume of discovery motions in this case is unreasonably high and suggests that the parties are unable or unwilling to resolve routine (and based on the Court’s review of motions already filed, minor) discovery issues through good faith efforts to meet and confer.  In short, this is an unremarkable single-plaintiff case that does not raise complicated issues that should reasonably lead to a dozen discovery motions.  The fact that additional motions were reserved after the initial IDC suggests that such conferences will have limited if any value in helping the parties to avoid motion practice.

Management of discovery disputes among parties with entrenched, divergent positions on discovery and repeated disputes requires a degree of management and involvement by the Court that interferes with normal court operations.  Frequent discovery motions with lengthy hearings typically prolong the daily calendar and take away time that the Court would otherwise be able to devote to substantive motions involving matters that are not part of the “self-executing” realm of the Civil Discovery Act. 

Based on the foregoing, it appears to the Court that there are exceptional circumstances in this case that make the appointment of a discovery referee necessary.  As noted above, there are multiple issues to be resolved; multiple motions to be heard simultaneously; a numerosity of motion reservations which shows that there is a continuum of many disputes; and a voluminous record in connection with the motion[s], making the determination of motions an inordinately time-consuming endeavor.  (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105.)

Pursuant to Code of Civil Procedure section 639(a)(5), the Court sets an Order to Show Cause why a discovery referee should not be appointed.  The Order to Show Cause will be heard on November 6, 2023 at 8:30 a.m. in Department 76.  No later than 10 days before the hearing, the parties shall file responses to the Order to Show Cause, addressing (1) any information the Court should consider in determining whether appointment of a discovery referee is necessary; (2) any information that the Court should consider with regard to payment of the referee’s fees, including the parties’ ability to pay and any factors that the Court should consider in apportioning fees; and (3) the names, contact information, and hourly rates of any referee candidates whom the parties propose in the event that the Court orders a Code of Civil Procedure section 639 reference.

The Court further orders the parties to file a joint statement regarding the status of discovery no later than October 31, 2023.  The joint status report must address the status of the following subjects, and the parties are ordered to meet and confer either in person or via telephone/videoconference to discuss each of the following subjects before preparing the report:

1.               A list of all written discovery that has been propounded by each party, the dates upon which responses were served, or are anticipated to be served, and whether unresolved disputes remain with regard to any of the written discovery devices.

2.               A list of depositions that have been completed, and the dates of the depositions.

3.               The number (and if known, the identities) of additional deponents (including parties and party-affiliated witnesses, as well as third parties) whose depositions are anticipated, and the date by which each deposition is expected to be completed.

4.               The identity of any witness(es) for whom any of the parties intends to seek a second deposition, or for whom a deposition of longer than seven hours will be sought.

5.               The identities of each third party upon whom document subpoenas have been served or are anticipated to be served, and the date on which production was completed or is expected to be complete.

6.               Any discovery disputes that are likely to require motion practice, beyond the motions already filed.

7.               Any other issues that may delay the completion of discovery.

To ensure that the parties in this case do not create additional resource issues, and do not unfairly step in front of other litigants whose cases are assigned to Department 76, the Court finds that additional case management will be necessary to ensure the timely completion of discovery.

The Court has broad authority “[t]o provide for the orderly conduct of proceedings before it” (Code Civ. Proc. § 128(a)(3)) and “[t]o amend and control its process and orders so as to make them conform to law and justice.”  (Code Civ. Proc. § 128(a)(8).)  This latter provision “is consistent with and codifies the courts' traditional and inherent judicial power to do whatever is necessary and appropriate, in the absence of controlling legislation, to ensure the prompt, fair, and orderly administration of justice.” (Kinney v. Clark (2017) 12 Cal.App.5th 724, 740, quoting Neary v. Regents of University of California (1992) 3 Cal.4th 273; see also Hernandez v. FCA US LLC (2020) 50 Cal.App.5th 329, 338 [finding “no abuse of discretion by the trial court in using its inherent supervisory powers to manage proceedings before it and to set deadlines to ensure the timely handling of cases assigned to it”]). Judges have not only the ability, but the obligation to:

eliminate delay in the progress and ultimate resolution of litigation, to assume and maintain control over the pace of litigation, to actively manage the processing of litigation from commencement to disposition, and to compel attorneys and litigants to prepare and resolve all litigation without delay, from the filing of the first document invoking court jurisdiction to final disposition of the action.

(Govt. Code § 68607).  In the discovery context, “Judges also have broad discretion in controlling the course of discovery and in making the various decisions necessitated by discovery proceedings.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

In order to prevent the discovery issues in this case from creating an undue burden on the Court’s motion calendar, and to facilitate the resolution of disputes among the parties in this case, the Court orders the following:

1.     Any future discovery motion hearing reservations for which moving papers have not been filed are hereby cancelled and ordered off calendar.  The Court will consider whether to reschedule the hearing on any pending motion that has not yet been heard.

2.     The parties in this case are prohibited from using the CRS system to reserve any motions regarding discovery.

3.     If any discovery dispute arises for which a motion appears to be necessary, a party who wishes to file a discovery motion shall prepare their moving papers in accordance with the provisions of the Code of Civil Procedure and Rules of Court governing discovery motions.  The moving party must then file and serve a notice of request for hearing on that discovery motion that includes the moving papers as attachments.  The moving party must deliver a courtesy copy of that notice to Department 76.

4.     For purposes of deadlines in the Discovery Act regarding the filing of motions to compel further responses, the Court will deem a motion to have been filed on the date that the moving party files its notice of request for hearing as described herein.

5.     Upon receipt of a notice of request for hearing, the Court will either set a briefing schedule and hearing date for the motion, or in its discretion order the parties to appear for a further case management conference before the Court sets a hearing on the motion.

Failure to follow this order may result in consequences that include:  (1) any motions filed after this date being ordered off calendar, (2) the imposition of monetary sanctions pursuant to Code of Civil Procedure section 177.5, and/or (3) the imposition of discovery sanctions as authorized by Code of Civil Procedure sections 2023.010 and 2023.030.