Judge: Mark H. Epstein, Case: 22SMCV00114, Date: 2023-01-12 Tentative Ruling
Case Number: 22SMCV00114 Hearing Date: January 12, 2023 Dept: R
The motion is MOOT.
Further responses have been served.
The court knows it is likely to see a follow up motion given that the further responses are inadequate on their face. The court strongly urges the parties to engage in a meaningful meet and confer in good faith. To aid the parties, the court appends its guidelines on discovery responses and meet and confer. The court warns plaintiff that if a motion to compel is granted based on the responses seen to date, the likely result will not only be monetary sanctions, but an order that further responses without objection including privilege be provided, most likely within a 24 hour period.
Discovery Responses
The Court provides the following guidance concerning its
general views on some common issues regarding responses to written
objections. The Court has noticed that
many attorneys view objections and the manner of making them in a way different
than does the Court. To avoid these
common pitfalls, the Court offers the following.
First, “General Objections” are not permitted. The Code of Civil Procedure does not provide for them, and therefore they are disregarded by the Court. Any response that “incorporates” the “General Objections” is improper by definition.
Second, the Court often views boilerplate objections as being in bad faith. A bad faith response is no response at all in the Court’s view. Therefore, making boilerplate objections does not preserve those objections nor does it constitute a good faith response to written discovery. A bad faith response is viewed by the Court for what it is: bad faith. The objections will be stricken and deemed waived. In the context of a Request for Admission, such objections may lead to a finding that the request is deemed admitted, although that will depend on the facts of the particular case and the specific discovery at hand.
Objections should be tailored to each specific request. If a request truly is overbroad, then an
objection to that effect is proper. But
such an objection is best accompanied by some reasonable limitation by the
responding party that will narrow the request appropriately and (as narrowed)
provide a substantive response rather than a mere statement that the request is
overbroad. The same is true as to an
objection that a request is unduly burdensome.
The Court also notes that the party asserting that a request is unduly
burdensome has the obligation at some point to provide an evidentiary basis for
the objection, including evidence as to what the burden of compliance would
be. (West Pico Furniture Co. v.
Superior Court (1961) 56 Cal.2d 407.)
Often such an objection will include a statement by the responding party
as to a narrower request that would not be unduly burdensome and provide
substantive responses as so limited.
Objections that a request is “vague and ambiguous” must set forth the
vague and ambiguous term as well as the responding party’s reasonable
interpretation of that term as well as a statement that, so interpreted, the
response will provide the discovery requested.
If there is no reasonable interpretation possible (which is a rare
situation), then the responding party must so state. Objections as to privilege must set forth the
basis explaining why the information sought is in fact privileged. Where a privilege is asserted in the context
of a document request, a privilege log must accompany the answer or be provided
within a short and reasonable time after the answer. Where the objection is made in the context of
an interrogatory, it must be clear from the objection the scope of the
information being withheld. If there is
no log, there should be no privilege objection to a document request (meaning
that a prophylactic privilege objection is the equivalent of no objection; it
preserves nothing). There are some rare
exceptions, such as where the entire point of the discovery is to get allegedly
privileged information or where compliance would require a log that is in
essence an index of counsel’s file. In
that situation, the log is unnecessary, but the assertion should be made that
the request is in that rare context.
Third, if an objection is made to the discovery but a response is being given, it must be clear whether information or documents are in fact being withheld on the basis of the objections. If the objections are clear and done in the manner set forth above, with statements in the objection as to a narrowing that will make the request proper, this is usually a simple task. The objections themselves state the limit and the response will be full and complete as limited. But where the objections are not so clear, the response must clearly state whether any information or document is being withheld on the basis of the objection and, if so, the extent of the withholding. Accordingly, in those situations, phrases like “Notwithstanding and subject to the foregoing objections, responding party states as follows” are improper. Those sorts of phrases make the verification useless, as the verifier can always fall back on the ”objections” as the reason why a document was not produced or information was not disclosed. On the other hand, where the line of demarcation is clear, the verification will still serve its purpose.
Fourth, for document requests, the substantive response must conform to the Code. There are relatively tight rules as to what the response must say, and the response must say it. For example, where a responding party is not producing documents because they are not in the party’s possession, custody, or control, the responding party must verify that a diligent search has been made and must further provide the information set forth in the Code of Civil Procedure in such cases. In the case of interrogatories, the responses must also conform to the Code of Civil Procedure and must be made after diligent inquiry. It is not proper to refuse to respond because the responding party has no personal knowledge. If the knowledge is hearsay, it must still be disclosed, although it can be qualified to make it clear that it is not based on the verifier’s personal knowledge.
Fifth, the Court frowns on responses that do not conform to the foregoing rules being served with the view that the responses will moot themselves out in the meet and confer process. That is not how the process works. A good faith response is required before the meet and confer process begins. The meet and confer process will (hopefully) bridge the gaps between the parties’ respective positions. Further, where a response to a request for documents is made and documents are to be produced subject to certain objections (with the documents withheld properly delineated), the documents should be turned over irrespective of the meet and confer. The documents are to be produced with alacrity to the extent that there is no objection to them.
What this means is that the response to a discovery request is not a trivial undertaking. Nabbing the response from the form file is a generally bad idea and can lead to all objections being waived. The point is that the boilerplate often renders the remainder of the response useless. The only exception is where it is clear that the substantive response is not in any way limited by the objections. In that case, the objections do no harm, although they also do no good.
The Code of Civil
Procedure requires that before a motion to compel further responses or a motion
for a protective order is filed, the parties engage in a good faith attempt to
resolve their differences. They are to
“meet and confer” for that purpose. Only
if that effort fails can a motion be brought.
Sadly, many litigants view the meet and confer process as just another procedural hoop through which they must jump in order to bring the motion, similar to the need to include an actual demurrer with the demurrer papers. The Code requires it, so they do it, but no one’s heart is really in it. That is not sufficient.
Given that, the Court believes it appropriate to set forth how the Court views the meet and confer requirement. Failure to abide by the guidelines below may well justify denial of the motion or a continuance of it to allow the process to take place. If one party but not the other refuses to participate as set forth, more likely than not the party refusing to participate will find itself on the losing end of the motion. The following quotation fairly sums up the Court’s own view.
“[W]e feel compelled to observe that resort to the courts easily could have been avoided here had both parties actually taken to heart Justice Stone's admonitions in Townsend that ‘the statute requires that there be a serious effort at negotiation and informal resolution.’ (Townsend, supra, 61 Cal.App.4th at p. 1438.) Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that ‘[a]rgument is not the same as informal negotiation’ (id at p. 1437); that attempting informal resolution means more than the mere attempt by the discovery proponent ‘to persuade the objector of the error of his ways’ (id. at p. 1435); 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.’ (Id. at p. 1439.)” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294, emphasis in original, parallel citations omitted.)
In practical terms, it means as follows. It is entirely appropriate to begin the process with a letter or other correspondence. The letter should not include a demand in the form of an ultimatum, but it can certainly include the relief that is being sought with an invitation to meet and confer. It is also entirely appropriate for the other party to respond with a letter or other correspondence to set forth its position on the issues. Such an initial exchange can often be helpful to narrow the dispute. Whether further exchanges make sense will depend on each case and each dispute.
However, at some point, before impasse is reached the process must include an actual “meet.” The letters might well suffice to “confer,” but an exchange of correspondence is not a meeting. In the COVID-19 era, the “meeting” can be virtual or telephonic, but a meeting there must be. The meeting must be attended by a person from each side with the authority to agree to the other side’s position without getting further permission from anyone, including the client. If only the client can give the needed authority, then the client must be available instantaneously at all times during the meeting. This does not mean that one side or the other must concede, but it does mean that the people meeting have the ability in real and practical terms to strike a deal then and there.
The parties should approach the meet and confer process as a problem-solving exercise. The purpose of the meet and confer is not to convince the other side of the bankruptcy of its position; rather the purpose is to reach an agreement by which the party seeking discovery is able to obtain the information that it reasonably needs and the party providing discovery is not put to an undue burden or forced to provide unnecessary information that might infringe on a privacy interest or disclose a competitive trade secret or the like.
At the conclusion of the meet and confer, the parties should have an agreed statement as to the outcome. If the outcome is a total impasse, then they should agree on that. If they have resolved some or all of their differences, then they should state—in writing—what that agreement is so that there will be no confusion later. Often, an agreement will be without prejudice to a further request by the propounding party for more information after that party receives the responses.
If a motion is still required, the declaration in support should describe with some detail the meet and confer process. While the Court is not interested in the back and forth, the Court is interested in when the meeting took place, who was there, and how long it lasted.
All communications—in writing or oral—must
be civil, polite, and professional.
Name-calling and accusations are devices that undermine the process;
they do not further it. A party engaging
in such activity generally is not acting in a good faith effort to reach an
agreement.