Judge: Mark H. Epstein, Case: 22SMCV00521, Date: 2023-11-14 Tentative Ruling
Case Number: 22SMCV00521 Hearing Date: January 5, 2024 Dept: I
Requests for Production,
Set One (“RFP”). Defendant opposes.
Preliminarily, the court
must stress the necessity of a proper meet and confer effort prior to filing
any motions. The conversation here
seemed perfunctory, without any attempt at engaging with the other side and reaching
a reasoned compromise. The parties sent
letters stating their positions and held to them. There seems to have been
substantial room for compromise here, especially given the alternatives offered
in both the opposition and reply.
Defendant offered to provide a redacted settlement agreement (but never
produced it) and plaintiffs offered to have documents produced pursuant to a
protective order. The court questions
why these alternatives are offered in briefing and not in meet and confer
efforts. However, while these were
offered in briefing, that is no substitute for a meet and confer. The court views both parties as having stood
on their last stated positions before the motion was filed. For this reason, the motion is GRANTED but
the settlement will be produced pursuant to a standard Los Angeles Superior
Court protective order and may be marked “CONFIDENTIAL.” It should not be redacted.
To guide the parties in
their future debates, the court has a couple observations. First, defendant’s
objection-only responses are not well taken where there was no attempt to
provide a substantive response to the best of defendant’s ability. There is no
privilege log, despite the asserted privileges, and that is also a
problem. In fact, the court has been
known to strike all such objections (other than privilege) as being made in bad
faith. And such objections will not
necessarily protect against sanctions.
The Legislature surely intended for there to be a robust meet and
confer. But it did not contemplate
lawyers signing bad-faith objection only responses in an effort to buy time and
avoid legitimate discovery obligations.
Rather, it intended that the initial responses be in good faith and
include as much information as was unobjectionable based on well thought out
and good faith objections. If a dispute
remained after that, then the robust meet and confer was to hammer out an
agreement to be followed by court intervention only after that process. That is not, apparently, how defendant sees
the Discovery Act, but it is how the court views it.
Defendants contend that
the settlement agreement sought is confidential and therefore need not be
produced. Hinshaw, cited by
defendant, is good law on the point defendant cited it for: there is a
recognized privacy right in confidential settlement agreements. “The privacy of a settlement is generally
understood and accepted in our legal system, which favors settlement and
therefore supports attendant needs for confidentiality. (See, e.g., Cho v. Superior Court (1995)
39 Cal.App.4th 113, 124; see also Philippine Export & Foreign Loan
Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1076–1077 [public
policy favoring settlement].) [¶] We
find a private settlement agreement is entitled to at least as much privacy
protection as a bank account or tax information, and analyze the situation on
that basis.” (Hinshaw, Winkler, Draa,
Marsh & Still (1996) 51 Cal.App.4th 233, 241, parallel citations
omitted, disapproved of on another basis by Williams v. Superior Court
(2017) 3 Cal.5th 531.) The court disagrees
with plaintiffs that Williams overruled Hinshaw. Williams only overruled Hinshaw
and other cases on the basis the party compelling disclosure had to demonstrate
a compelling need for the information; it was the strength of the showing that
the Supreme Court overturned, not the case entire. Notably, Hinshaw has been cited with
approval by our Supreme Court in a later case on this point. “Our conclusion also recognizes the role that
confidentiality plays in facilitating settlement agreements. ‘The privacy of a settlement is generally
understood and accepted in our legal system, which favors settlement and
therefore supports attendant needs for confidentiality.’ (Hinshaw, Winkler, Draa, Marsh & Still
v. Superior Court (1996) 51 Cal.App.4th 233, 241.) Routine public disclosure of private
settlement terms would ‘chill the parties’ ability in many cases to settle the
action before trial. Such a result runs
contrary to the strong public policy of this state favoring settlement of
actions.’ (Board of Trustees of
California State University v. Superior Court (2005) 132 Cal.App.4th 889,
899.) There is little doubt here that
‘[c]onfidentiality was an important term of that settlement’ (Jalali v. Root (2003) 109 Cal.App.4th
1768, 1784), and the agreement goes to great lengths to ensure that virtually
nothing would be publicly said about the case other than that it had been
resolved.” (Monster Energy Co. v.
Schechter (2019) 7 Cal.5th 781, 793–794.)
However, this privacy
right does not go as far as defendant thinks it does, especially given that the
RFP are relevant to plaintiffs’ claims.
Our Supreme Court was concerned about “routine public disclosure” of
settlement terms, not disclosure of settlement terms (which could be the
subject of a protective order) in litigation where those terms are relevant or
could lead to the discovery of admissible evidence, which is the case here. If necessary, the parties can discuss a
protective order to ensure that the terms of the agreement are not published in
the newspaper.
The request for sanctions is GRANTED in the amount of
$4406.65, payable by the opposing party within 30 days. The objection-only responses were not well
taken and were in bad faith. Plaintiff
was forced to bring this motion before defendant made any effort to
meaningfully engage. That is sufficient
to warrant the sanctions sought.
For the parties’ future guidance, the court sets forth its guidelines on discovery and meet and confer.
DISCOVERY RELATED GUIDELINES FOR DEPARTMENT I
The guidelines below are not “rules” and they are not
universally applicable in all cases.
Rather, they are guidelines as to the court’s general views. Each case, of course, will be decided on its
own facts and circumstances, and some of the guidelines below may not apply to
particular circumstances. That said, the
court does take these views seriously.
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 in addition to the provisions
of the Litigation Guidelines appended to the Los Angeles County Superior Court
Local Rules.
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.