Judge: Mark H. Epstein, Case: 24SMCV00593, Date: 2025-05-02 Tentative Ruling
Case Number: 24SMCV00593 Hearing Date: May 2, 2025 Dept: I
These are really four motions to compel further brought as
one motion. That is improper. There are four motions, they need to be filed
separately. If the moving party wants to
file an omnibus memorandum of points and authorities, that would be ok, but the
motions are separate and need to be filed that way. There are reasons for this that the court
need not go into, but the suggestion that it is permitted is just wrong. On the other side of the coin, the opposition
was untimely. It was only one day late,
but it is still untimely. An explanation
and request to file an untimely opposition should have been filed, but before
then, the opposing party should have reached out to the moving party to see if
they could agree on an appropriate procedure to deal with the issue.
Turning to the merits, plaintiff served discovery on the
defense. Defendants asked for an
extension to respond, which was granted.
However, by the new date, responses were not forthcoming. Plaintiff sent a letter to the defense
demanding responses without objection.
On January 14, 2025, defendant sent unverified responses, saying
verifications would follow. The
responses had objections, however, and stated that only non-privileged
information and documents would be provided.
Further, there was a preliminary statement. There were also problems with accessing the
documents produced, although the court gathers those were ultimately
resolved. When plaintiff saw the
documents, though, plaintiff saw that there had been redactions. Plaintiff sent a letter to the defense giving
counsel until January 30, 2025, to provide unredacted documents. Defense counsel stated that the client was
still not in the office. Plaintiff told
the defense that all objections had been waived and that it needed the
responses by February 5, 2025. Defendant
promised to send amended responses, but failed to do so, although additional
material was submitted the next day.
There were still, however, no verifications from Wells Fargo and there
were still objections.
In opposition, defendants raise the technical arguments, and
defendants seem to argue that the motions do not seek an order that defendant
provide documents, but only that defendants amend the responses. In any event, verifications were finally
served for Wells Fargo on February 6, 2025, for the form interrogatories and on
February 11, 2025, for the RFP’s.
Defendants defend the preliminary statement as mere “boilerplate” that does
no one any harm. Finally, as to the
production of unredacted documents, defendants contend that the documents are
privileged and therefore need not be produced.
The parties need to step up their game. Plaintiff’s view that it can by right combine
four motions in one is based on nothing that looks like authority. Rather, it seems to be ipse dixit, a
phrase coined by the Roman orator and philosopher Marcus Tullius Cicero and
meaning “he himself said it,” suggesting that the utterance is enough to
establish the point without the need for pesky facts or other authority. But that is not sufficient in court. Defendants, in addition to filing an untimely
opposition, served untimely and unverified responses and do not seem to
understand the Code’s plain statement that untimely responses waive all
objections—expressly including privilege.
There is nothing resembling legal argument as to why the statute does
not apply to defendants here. The court
is aware of some authority that suggests that a privilege waiver is less
automatic than other sorts of waivers, notwithstanding the statute. But the statute is hardly something that can
be ignored. As to work product, defense
counsel says that the waiver does not extend to work product. It is true that “work product” is not
expressly stated in the statute, but it is still an objection, and all
objections are waived. The court needs
more than the defense has given on that score.
It is “ipse dixit” again.
And the court has, to be honest, never heard of defending a bunch of
objections on the ground that they are “boilerplate.” That is usually something the other side
says, although the argument does score points on the boldness scale. Further, there is no basis in the Code for a
“Preliminary Statement,” at least that contains objections.
The preliminary statement is STRICKEN AS IMPROPER. And given the defense’s lack of any
justification for ignoring the statutory language regarding waiver, the court
is forced to agree with plaintiff that the privilege has been waived. While the court agrees that this should have
been four motions, not one, the court will trade that irregularity for
accepting the untimely opposition. They cancel
each other out.
Defendants will, therefore, provide verified responses
without objection within 5 court days and unredacted documents will be provided
at the same time. However, as to
privilege, the court will allow defendants to do the following: (1) provide a detailed
privilege log within that time frame; and (2) provide a supplemental brief
as to why the waiver language in the statute does not apply to them. To the extent that is done, logged privileged
information need not be produced at this time.
Legal authority in the brief would be a wise move. As to the log, the log must be detailed
enough to establish the privilege or work product protection as a prima
facie matter without more. If
plaintiff seeks to compel production of the privileged material, it may bring a
motion to compel, and it may argue that the privilege was in fact waived. In opposing such a motion, the defense will
not be allowed to supplement the log to make out the prima facie
case.
Sanctions are GRANTED in favor of plaintiff as prayed.
The court admonishes both parties that they need to work a
little bit harder before filing things in this court. The rules are there for a reason and the
court must follow them. Just because
counsel says so does not make it so. And
this whole thing should never have been allowed to get this far in the first
place. This will be a long slog unless
quality improves.
For the parties’ future use, the court appends its guidelines
for discovery.
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” should 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 should 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 should accompany the answer or be
provided within a short and reasonable time after the answer, and the log will
serve as the explanation. 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 generally 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 of Civil Procedure. 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 section 2031.230 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, but the court
recognizes that there is often a lag between the date responses are served and
the date that the documents are produced.
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 of Civil Procedure 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 or at least articulate plainly the boundaries. Whether further exchanges make sense will
depend on each case and each dispute.
However, at some
point before impasse is reached the process must generally 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 should 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.
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 further 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 (and indeed describing it can be counter-productive),
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.
Informal Discovery Conferences
The court generally prefers an Informal Discovery Conference
(IDC) before any party files a motion to compel further responses, and the
failure to use this avenue of resolution can greatly affect the amount of
sanctions that might be awarded because sanctions are limited to fees that are
reasonable and necessary. The goal of
the IDC is to “get to yes.” To achieve
that goal, the court adopts the following.