Judge: Mark H. Epstein, Case: 22STCV05022, Date: 2023-09-26 Tentative Ruling
Case Number: 22STCV05022 Hearing Date: September 26, 2023 Dept: I
The motion to compel further is GRANTED IN PART AND DENIED
IN PART. The untimely reply is STRICKEN.
This is somewhat troubling. Plaintiff served interrogatories. Defendant responded but plaintiff felt that in some instances the responses were insufficient. Plaintiff requested a meet and confer. Defense counsel refused to participate, instead agreeing only to have a paralegal conduct that process. The paralegal either had no authority to agree to anything or did. In the former case, the meet and confer was improper. There is no proper meet and confer where one side has no ability to reach an agreement. That is bad faith. In the latter case, the meet and confer was improper. It is concerning that a paralegal would have the ability to make binding legal decisions. Making binding legal decisions is something that the Code envisions only a licensed attorney can do. (Code Civ. Proc. § 2023.010 subd. (i) [“Misuses of the discovery process include, but are not limited to, the following: . . . [¶] Failing to confer in person, by telephone, or by letter with an opposing party or attorney . . . .”] (emphasis added).) Nothing precludes a paralegal from being present, aiding, or advising an attorney, of course. But decisions reside with the lawyer, not the paralegal. If there is a bad call, it is the lawyer who is responsible, not the paralegal. The court will go no further on this point at this time, but in the future, defendant must have a lawyer attend, and a lawyer with the ability to reach an agreement. For the parties’ guidance, the court appends to this order its discovery guidelines.
Turning to the merits, plaintiff claims a host of problems, but most are either not problems at all or are relatively minor. One of the major problems is that defendant had a tendency to respond that defendant had no “first hand knowledge” sufficient to respond. Plaintiff, understandably, was not satisfied with that. But defendant, also understandably, adverted to the Code, which specifically allows such a response. The problem is a bit more than semantics. First, a non-human entity never has “personal knowledge” of anything in a sense. Only humans have “personal knowledge” of things. But an entity is charged with the knowledge of all of its agents and employees as well as the documents in its possession, custody, and control. Given the fact that the Code’s drafters knew as much, the court presumes that in this context, “personal knowledge” means that counsel has made inquiry of all of the entity’s employees and agents who might have information and obtained that information and searched for informative documents as well. No more need be said, and the responding party need not elaborate on the people of whom inquiry was made. But the code says a bit more. The code also requires that the responding party “make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations.” While it is true that the code does not require that such be included in the actual response overtly, this court’s reading is that such a representation does need to be made where no substantive information is given. The reasoning is simple. The point of the verified response is to be able to impeach the other side at trial if the response is false, and also to give additional heft to motions to exclude evidence that was not disclosed in discovery. Requiring the person verifying the response to state that not only is there no “personal knowledge” but also that a reasonable inquiry was made to obtain the information and there still is none serves that goal. If the information later pops up, someone can have an uncomfortable moment on the stand. Further, someone swore that they did the inquiry and will therefore have to explain why the information suddenly popped up. True, it might be implicit without the statement, but that is a harder argument to make. The court will give defendant the benefit of the doubt in that defendant’s reading of the code is an honest one. But that said, other than being obstreperous, the court completely fails to understand why defendant would not confirm that the inquiry was made and do so in a legally binding way.
Another dispute is whether the term “INCIDENT” is vague because it covers a 10 day stay at a hospital. The court disagrees with the defense here. The incident is the treatment at the hospital. The use of the term, which is defined in the form interrogatories, is not so difficult to understand so as to absolve defendant from the need to respond. That objection is OVERRULED. Moreover, while the objection was made, defendant did not attempt to justify it in the opposing papers, as defendant is required to do. As such, that objection, and all other unjustified objections, are STRICKEN (such as the notion that some interrogatories are redundant). But in any case, any sort of good faith meet and confer would have resolved this issue. It is minor and parties acting in good faith can sort it out.
The request for sanctions as to the form interrogatories is GRANTED. Many of the original responses were not in good faith, and the meet and confer was in bad faith. Sanctions of $4680 are payable within 30 days by defendant.
As to the special interrogatories, one major objection is that many allegedly seek the same information. To some degree, that could be true. But the objection is undue burden. To make an undue burden objection, the defendant needs to set the burden forth. In this era of computer word processing, if the requests are truly redundant then the burden is fairly minimal. The objections are overruled and the motion is GRANTED as to SI 1-2, 5, 8, 14, 19, 21, 28, 31, 33, 34, 37, 38, 40, 91, 92, 95, 96, 99, 100, 103, 104, 107, 108, 111, 112, 115, 116, 119, 120.
Defendant also contends that it need not identify documents beyond what it did. However, the interrogatories specify and define what “IDENTIFY” means, and the definition is not unreasonable. To the extent that defendant contends that it need not identify the document because it produced the document, defendant is wrong. If defendant wanted to rely on that part of the code, it needed to identify the document by production number. That would have been sufficient, but that is not what defendant did. The motion is therefore GRANTED as to SI 23, 25, 27, and 39. The remaining interrogatories deal with the “personal knowledge” issue discussed above. But part of the problem is also that the court finds the response not credible. For example, SI 132 asks whether plaintiff’s “colostomy bag [was] changed on February 18, 2021.” Defendant responds that it lacks “personal knowledge” sufficient to respond because plaintiff was discharged on February 18, 2021. That is an evasive answer. Surely defendant has personal knowledge as to whether it was changed in the hospital—the staff would know or there would be a medical record to so show (and a medical record would give defendant “personal knowledge”). If what defendant means is the bag was not changed while plaintiff was in the hospital but defendant does not know what happened after plaintiff left, then the non-evasive answer would be “the colostomy bag was not changed prior to the time of plaintiff’s discharge, and after a reasonable and good faith inquiry, defendant lacks personal knowledge as to whether the colostomy bag was changed thereafter.” Or defendant could have responded by saying “Objection to the extent that the interrogatory is seeking information about what happened after plaintiff was discharged, as defendant would have no way of knowing and such information would not be calculated to lead to the discovery of admissible evidence. However, before plaintiff’s discharge, the colostomy bag was not changed.” Of course, if defendant did change the bag, then the answer would simply be “Yes.” The answer that was given was not code compliant nor in good faith. Moreover, defendant made no attempt to justify this or similar objections in its opposing papers. Accordingly, the motion is GRANTED as to SI 41-56, 65-72, 131-133, 135-145, 155-158, and 161-166.
Sanctions as to this motion are GRANTED in the amount of $5670, payable by defendant within 30 days. All responses are due within 30 days.
Defendant contends that the sanctions awards are redundant. They are not. Plaintiff divided the time spent. The court notes that plaintiff did not seek time for the reply.
At a different level of generality, the court’s larger issue here is that this should have been resolved by a good faith meet and confer. There was no such meet and confer, and the court lays the blame squarely with the defense. In the future, that kind of tactic will not serve defendant well. The court stands ready to resolve good faith discovery disputes where the parties have really tried to work things out. But the court does not believe that the code was meant to require the court’s intervention in issues like this. Hopefully, now that the parties have the court’s guidelines, things will go forward more smoothly.
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.