Motion to extend time, for protective order, to compel production, to compel further response, to compel compliance, sanctions.
By Judge Owen Lee Kwong, Robert F. Kane, Donald G. Rez
Excerpted from California Pretrial Practice & Forms
- Agree on a Discovery Plan
- Case Management Order/Discovery Referee
- Motion to Extend Time
- Motion for Protective Order
- Motion to Compel Production
- Motion to Compel Further Response
- Motion to Compel Compliance
- Sanctions Against Losing Party
§21:350 Have a Plan
Many attorneys feel that dealing with discovery disputes is their most significant problem in pretrial preparation. In an adversarial system, some such disputes are inevitable. But “one of the running themes of the Discovery Act is to eliminate gamesmanship and streamline judicial involvement over discovery minutiae.” [Monarch Healthcare v. Superior Court, 78 CA4th 1282, 1289, 93 CR2d 619, 625 (2000).]
Having a coherent game plan for minimizing the areas of possible dispute, and dealing with disputes that do arise, will go a long way toward making the process less disruptive to your handling of the case, less costly, and more likely to result in your obtaining the materials you have demanded in timely fashion. Consider the following five-stage strategy, with each part representing sequential, escalating steps in handling discovery.
- Agree on a plan.
- Write letters concerning disputes.
- If the case is sufficiently complex — seek a discovery referee.
- Make a motion (compel/protective order/extension).
- Move for sanctions.
Each of these steps will be dealt with in more detail below. Note that this order is not written in stone, and should be tailored to the exigencies of each case. In particular, in more traditional cases a discovery referee will be appointed only after discovery disputes have reached the level of extensive motion practice. [See Hood v. Superior Court, 72 CA4th 446, 85 CR2d 114 (1999) (a finding of something out of the ordinary about the discovery dispute is required before a referee’s services can be forced upon a nonconsenting party).]
The easiest way to resolve a discovery dispute is to negotiate a plan of discovery that both parties can live with. In the vast majority of cases, this process will be aided by the fact that each party will need to see the other’s documents; there will therefore be opportunities for bargaining and negotiation.
Furthermore, agreeing to a discovery schedule will enhance credibility with the court, since it will be spared extensive discovery motions. “A central purpose of the Discovery Act was to keep the trial courts out of the business of refereeing day-to-day discovery by requiring parties to conduct discovery and resolve disputes with minimal judicial involvement.” [Fairmont Ins. Co. v. Superior Court, 22 C4th 245, 253-254, 92 CR2d 70, 76 (2000).] If it is possible to reach agreement, use of a stipulation as set forth in CCP §2016.030 can put the power of the court behind the plan.
A case management conference is now required in each civil case. [CRC 3.727.] As part of the “meet and confer” required for preparation of the conference the parties must consider resolving discovery disputes and “setting a discovery schedule.” [CRC 3.727.] The parties are required to file a Case Management Statement (mandatory form CM-110). [CRC 3.727.] Thereafter the court must enter a case management order which may include a discovery schedule (order may include any matter listed). [CRC 3.727.] Especially in complex litigation the case management order should include a detailed “discovery schedule” or provisions for the creation of such a schedule. It is also frequently appropriate for the case management order to provide for the appointment of a discovery referee; under CCP §639. [Lu v. Superior Court, 55 CA4th 1264, 1268-1269, 64 CR2d 561, 563-564 (1997); see §21.361.]
The contents of the agreement and schedule will necessarily be determined by the facts of each case. For document demands, most plans will:
- Deal with the timing and location of productions.
- Resolve objections made to particular demands (i.e., privilege, relevance).
- Negotiate the terms of a protective order, if needed.
In general, be reasonable, and responsive to the legitimate concerns and difficulties of your opponent. This should ultimately redound to your benefit. For example, if you are willing to allow more time to respond to a voluminous demand, the favor will likely be returned to you at some point. Further, since settlement negotiations will often be proceeding alongside discovery negotiations, reasonable conduct in the latter might produce dividends in the former.
§21:352 Announce and Confirm Positions in Writing
Before you can file certain discovery motions, you must contact opposing counsel and attempt to negotiate a resolution. [See, e.g., CCP §§2016.040, 2031.060(a) (protective order), 2031.310(b)(2) (motion to compel further answers).] Thus, in many situations, before parties may seek assistance from the court to resolve disputes or extend discovery, they must meet and confer. [Fairmont Ins. Co. v. Superior Court, 22 C4th 245, 254 fn 3, 92 CR2d 70, 76 fn 3 (2000); see Townsend v. Superior Court, 61 CA4th 1431, 1435-36, 72 CR2d 333, 335 (1998) (“Each of the statutes governing discovery contains a provision that requires that the parties, prior to invoking the assistance of the court, attempt to informally resolve their discovery disputes”).] As part of this process you need to start creating a paper trail. Write a letter to your opponent, outlining the terms of your dispute, and suggesting a resolution. Your tone should be firm yet reasonable; don’t give away the farm, but at the same time sound like you are willing to work things out. If you feel it’s appropriate, reluctantly threaten to make a motion. The general idea here is to portray yourself as willing to negotiate, and your opponent as the one holding things up. This will be part of the evidentiary record to present to the court in connection with any future discovery motion. The letters will be attached as exhibits to the required meet and confer declaration. [CCP §2031.310(b).]
§21:360 Case Management Order
Particularly in “complex litigation” (whether or not officially denominated as such under CRC 3.400(a)), the case management order [CRC 3.728] is a management tool of the trial court. Such an order typically adopts a discovery schedule (or makes provision for the creation thereof), deals with protective orders, and makes provisions for orderly document exchanges and availability (including where appropriate, facilitation of document depositories and/or databases). [See Lu v. Superior Court, 55 CA4th 1264, 1268, 64 CR2d 561, 563-564 (1997).] Consider asking the court to enter selected discovery related provisions in any case when discovery issues will be important and contested. [See Barratt American Inc. v. Transcontinental Ins. Co., 102 CA4th 848, 855, 125 CR2d 852, 857 (2002) (in construction defect case ability to inspect homes and conduct destructive testing is contingent upon entry of case management order);San Diego Unified Port Dist. v. Douglas E. Barnhart, Inc., 95 CA4th 1400, 1403, 116 CR2d 65, 67 (2002) (case management order directed any parties interested in conducting destructive testing to disclose interest in writing to special master and to meet and confer re process).] [See Hernandez v. Superior Court, 112 CA4th 285, 295, 4 CR3d 883, 892 (2003) (trial court has broad discretion to fashion suitable methods of practice in order to manage complex litigation, including orders designed to minimize duplication, so long as such orders do not conflict with any statute or judicial council rule).]
§21:361 Discovery Referee
A case management order frequently employs the device of appointing a discovery referee under CCP §639(e) (permitting the court “to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make recommendations thereon”).] “Such a referee assists the trial judge in resolving discovery disputes. However, even in the unlikely absence of disputes, the referee will work with the attorneys in developing a discovery plan, scheduling discovery in the most efficient, rational and least oppressive manner.” [Lu v. Superior Court, 55 CA4th 1264, 1269, 64 CR2d 561, 564 (1997).] The reference may be made by the court on its own initiative or as a result of the party’s motion. The reference order is the charter for the reference proceeding, determining procedures, scope, and the referee’s powers. It must name the referee, the reasons for the reference, and the terms of payment. [CCP §639; CRC 3.922.] Of course, there must be a finding of something out of the ordinary before the services and costs of a referee are forced upon a nonconsenting party. [Hood v. Superior Court, 72 CA4th 446, 449, 85 CR2d 114, 116 (1999).]
a. General Points
§21:370 Procedural Requirements
Motions to extend time, to enforce inspection requirements, or for protective orders are made in the same manner as other pretrial motions. [See Ch 14, Motion Practice.]
§21:371 “Meet And Confer” Declaration
Motions for protective orders and motions to compel further production must be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. [CCP §§2031.060, 2031.310.]
FORMS ON CD: See Form 21:80 Meet and Confer Letter With Regard to Responses to Requests for Document Production.
§21:380 Motion to Extend Time to Respond
Technically, a motion for a protective order may be brought so that the “time specified to respond be extended.” [CCP §2031.060(b)(2). Motions to extend time are fully discussed in Ch 13, Pleadings.]
§21:381 Motion Often Not Necessary
Parties are likely to agree to reasonable demands for an extension of time, since such a demand would probably be granted by a court anyway. In any event, by timely serving objections (including an objection to the time set for production), there will be a functional extension before any motion to compel can be brought. Moreover, a refusal to grant at least one extension will make it difficult for the propounding party to file a declaration stating facts showing a reasonable and good faith attempt to an informal resolution as is required for a motion to compel further response. [CCP §§2016.040, 2031.310(b).]
§21:390 Basis for Protective Order
After a demand for inspection has been filed, the party to whom the demand has been directed, and any other party or affected person or organization, may promptly move for a protective order. The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. [CCP §2031.060.]
A protective order may be particularly helpful in those cases when the responding party believes that vast portions of the demand are improper and wants to get an early decision setting the scope of the case. For instance, if the demand seeks material related to parts of your business that have nothing to do with the pending case, it might be in your interest to resolve this issue earlier rather than later. Merely objecting lets your opponent determine when the issue gets resolved, while moving for a protective order allows you to take the initiative. This may be particularly important if depositions, in which parallel evidence is likely to be sought, are soon to commence.
The movant has the burden of establishing “good cause,” so submit a declaration with factual material establishing good cause. [Calcor Space Facility, Inc. v. Superior Court, 53 CA4th 216, 224, 61 CR2d 567, 572 (1997); Stadish v. Superior Court, 71 CA4th 1130, 1145, 84 CR2d 350, 359 (1999) (good cause for a protective order must be shown by preponderance of the evidence); see American Home Assurance Co. v. Societe Commerciale Toutelectric, 104 CA4th 406, 427, 128 CR2d 430, 447 (2002) (California law generally requires the party seeking a protective order or resisting discovery by way of objection to establish the necessity of the requested relief).] The court will then engage in a balancing test. [Stadish v. Superior Court, 71 CA4th 1130, 1146, 84 CR2d 350, 359 (1999) (balancing test between needs and interests of the parties and any public interest in preserving access to the information).]
§21:391 Terms of Protective Order
The court on a motion for a protective order may make any order that is appropriate for the circumstances including but not limited to one or more of the following directions:
- That all or some of the items or categories of items in the inspection demand need not be produced or made available at all. [CCP §2031.060(b)(1).]
- That the time specified in CCP §2031.260 to respond to the set of inspection demands, or to a particular item or category in the set, be extended. [CCP §2031.060(b)(2).]
- That the place of production be other than that specified in the inspection demand. [CCP §2031.060(b)(3).]
- That the inspection be made only on specified terms and conditions. [CCP §2031.060(b)(4).]
- That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way. [CCP §2031.060(b)(5).]
- That the items produced be sealed and thereafter opened only on order of the court. [CCP §2031.060(b)(6).]
The court must impose a monetary sanction under CCP §§2023.010-2023.040 against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. [CCP §2031.060.]
§21:392 Trial Court Discretion but Disclosure Favored
The issuance and formulation of protective orders are to a large extent discretionary. [Raymond Handling Concepts Corp. v. Superior Court, 39 CA4th 584, 588, 45 CR2d 885, 886-7 (1995); seeStadish v. Superior Court, 71 CA4th 1130, 1145, 84 CR2d 350, 359 (1999) (“The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery.”) The trial court then balances relevance, privacy, and public interest. [Stadish, 71 CA4th at 1145-46.] “Where it is possible to do so, … the courts should impose partial limitations rather than outright denial of discovery.” [Schnabel v. Superior Court, 5 C4th 704, 712, 21 CR2d 200, 204 (1993).] In camera review of contested documents is a tool often useful for resolving doubts; indeed, sometimes in camera review is mandatory. [Fireman’s Fund Ins. Co. v. Superior Court, 233 CA3d 1138, 1141, 286 CR 50, 51 (1991) (court abused its discretion in ordering disclosure of highly sensitive reinsurance documents without first reviewing them in camera).]
In conducting the in camera examination (and determining its need for one), the court should determine facts upon which a claim of privilege depends including the review of appropriately crafted privileges logs, as that is the purpose of such logs. [Hernandez v. Superior Court, 112 CA4th 285, 292, 4 CR3d 883, 888 (2003); Lipton v. Superior Court, 48 CA4th 1599, 1619, 56 CR2d 341, 353-53 (1996).]
CASE EXAMPLES: Commercially sensitive protective orders
- GT, Inc. v. Superior Court, 151 CA3d 748, 751-52, 198 CR 892, 894 (1984) (order precluding competing newspaper publishers from viewing each other’s proprietary financial information – disclosure of such information limited to attorneys and experts).
- Foothill Properties v. Lyon/Copley Corona Associates, 46 CA4th 1542, 1556, 54 CR2d 488, 496 (1996) (An “eyes only” protective order properly entered for profit and loss, budgetary, and business projection information).
- Raymond Handling Concepts Corp. v. Superior Court, 39 CA4th 584, 590, 45 CR2d 885, 888 (1995) (disclosure permitted to counsel in “similar” cases only and only if they stipulate to being bound by protective order and notice is given to defense counsel).
CAVEAT: In camera inspection not normally for attorney – client documents
In camera inspection is proper for commercially sensitive documents [Fireman’s Fund Ins. Co., 233 CA3d at 1141] and to evaluate the applicability of the work product doctrine to specific documents and categorize whether each document should be given qualified or absolute immunity. [State Comp. Ins. Fund v. Superior Court, 91 CA4th 1080, 1091, 111 CR2d 284, 292 (2001).] However, because of the absolute nature of the attorney client privilege and the provisions of Evid C §915 there can be no in camera review of attorney client communications. [Wellpoint Health Networks v. Superior Court, 59 CA4th 110, 121, 68 CR2d 844, 851 (1997); Titmas v. Superior Court, 87 CA4th 738, 744, 104 CR2d 803, 808 (2001) (privilege applies even to disclosures to the court).] But the rule against in-camera review is not absolute. If necessary to determine whether an exception to the privilege applies, an in-camera review may be conducted. [OXY Resources California LLC v. Superior Court, 115 CA4th 874, 896, 9 CR3d 621, 640 (2004).]
§21:393 Enforcing Protective Orders
Breach of a protective order gives rise to claims for sanction in the litigation in which the protective order was entered; [Maggi v. Superior Court, 119 CA4th 1218, 1226, 15 CR3d 161, 167 (2004) (“court may consider appropriate discovery sanctions for violation of the Protective Order” including monetary sanctions and limits on depositions)]; but does not give rise to independent tort or breach of contract claims. [Westinghouse Electric Corp. v. Newman & Holtzinger, 39 CA4th 1194, 46 CR2d 151 (1995).]
d. Motion to Compel Production
If a person to whom an inspection demand is made fails to serve a timely response, the party seeking disclosure may move for an order compelling response to the inspection demand. [CCP §2031.300.] There is no meet and confer requirement prior to making such a motion, but you should make at least one telephonic and written demand prior to filing the motion.
FORMS ON CD:See the CD for the following forms:
- Form 21:90 Notice of Motion to Compel Document Production.
- Form 21:100 Points and Authorities in Support of Motion to Compel Document Production.
Sanctions are available for the prevailing party and for failure to obey an order for response. [CCP §2031.300; see §21:440 ff.]
§21:410 Bases for Motion to Compel
Upon receipt of responses, a party may move for an order compelling further response if it deems:
- A statement of compliance with the demand is incomplete;
- A representation of inability to comply is inadequate, incomplete, or evasive; or
- An objection in the response is without merit or too general.
The motion must identify the demands by set and number. [CRC 3.1010(d).]
§21:411 “Good Cause” Must Be Shown
A party who seeks to compel further production must show “good cause” for the demand. [CCP §2031.310(b)(1).] However, when there is no privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. [Glenfed Development Corp. v. Superior Court, 53 CA4th 1113, 1117, 62 CR2d 195 (1997).] Still, this showing is not a mere formality. “[A] showing of good cause is statutorily required to compel production in civil cases even with respect to nonconfidential matter.” [Mead Reinsurance Co. v. Superior Court., 188 CA3d 313, 320, 232 CR 752, 756 (1986); seeNelson v. Superior Court, 184 CA3d 444, 452-53, 229 CR 94, 100 (1986) (no showing other accidents were similar made other accident reports not relevant); James 3 Corp. v. Truck Ins. Exchange, 91 CA4th 1093, 1110, 111 CR2d 181, 193 (2001) (no showing that attorney billings were relevant to declaratory relief claim that reservation of right to seek reimbursement creates conflict for defense counsel).]
The showing of good cause must be made by declarations and be fact specific. This means there must be a showing of specific facts relating to each category of materials sought to be produced. The justifications cannot be mere generalities. There must be focused, fact specific justifications for each demand. [Calcor Space Facility, Inc. v. Superior Court, 53 CA4th 216, 224, 61 CR2d 567, 572 (1997).] Of course, all doubts about discoverability are resolved in favor of disclosure. [Glenfed Development Corp. v. Superior Court, 53 CA4th 1113, 1119, 62 CR2d 195, 199 (1977).] If commercially sensitive documents are sought the court may be required to review them in camera to assure that relevance trumps contravening concerns. [Fireman’s Fund Ins. Co. v. Superior Court, 233 CA3d 1138, 1141, 286 CR 50, 51 (1991); see Lipton v. Superior Court, 48 CA4th 1599, 1619, 56 CR2d 341, 352 (1996) (in conducting in camera review of reserve and reinsurance material, court must make specific findings as to application of privilege, and if qualified privilege why discovery is denied. If irrelevance is asserted court must make specific findings as to why documents are not relevant or likely to lead to discovery of relevant information). [Hartbrodt v. Burke, 42 CA4th 168, 172, 49 CR2d 562, 565 (1996) (in camera review of tape transcript established relevance and confirmed discovery order).]
FORMS ON CD:See the CD for the following forms:
- Form 21:110 Notice of Motion and Motion to Compel Further Responses to Requests for Production of Documents #1.
- Form 21:120 Points and Authorities in Support of Motion to Compel Further Responses to Requests for Production of Documents.
- Form 21:130 Declaration in Support of Motion to Compel Further Response #1.
- Form 21:140 Notice of Motion and Motion to Compel Further Response to Request for Production of Documents #2.
- Form 21:150 Declaration in Support of Motion to Compel Document Production #2.
§21:412 Separate Statement
A motion to compel further response must be accompanied by a separate statement. [CRC 3.1020(a).] A separate statement is a separate document filed and served with the discovery motion that sets forth all the information necessary to understand each discovery demand and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full demand and the full response. Material must not be incorporated into the separate statement by reference. [CRC 3.1020(c).]
The separate statement must include, for each inspection demand to which a further response is demanded, the following:
- The text of the inspection demand;
- The text of each response;
- A statement of the factual and legal reasons for compelling further responses as to each matter in dispute;
- If necessary, the text of all definitions, instructions, and other matters required to understand each discovery demand and the responses to it;
- If the response to a particular discovery demand is dependent on the response given to another discovery demand, or if the reasons a further response to a particular discovery demand is deemed necessary are based on the response to some other discovery demand, the other demand and the response to it must be set forth; and
- If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.
FORMS ON CD:See Form 21:160 Statement of Items in Dispute in Support of Motion to Compel Further Response.
A motion to compel must be served (not just filed) within 45 days of the service of the response (or any supplemental response), unless a later date has been agreed to in writing. Failure to serve within that time frame constitutes a waiver of any right to compel further response. [CCP §2031.310.] Indeed, the 45-day limitation is jurisdictional in the sense that it renders the court without authority to rule on motions to compel other than to deny them. [Sexton v. Superior Court, 58 CA4th 1403, 1410, 68 CR2d 708 (1997).]
CAUTION: Give notice timely, don’t just file
The language in the statute is quite clear that notice (and not mere filing) must be given by the due date (either 45 days after service or such later date as agreed upon in writing). Thus, simply filing a motion to compel and serving it later is inadequate. The motion must be served within the due date period or the court will lack jurisdiction to compel and the propounding party will have waived its right to move to compel. [See Sperber v. Robinson, 26 CA4th 736, 746, 31 CR2d 659, 664 (1994) (motion to compel was timely filed but notice thereof was withdrawn; new notice was thereafter given but after the 45 days had run; there was a waiver of rights to compel further discovery response).]
The failure to timely file a motion to compel precludes the demanding party from demanding to inspect the same documents with a later demand. [Sexton v. Superior Court, 58 CA4th 1403, 1409, 68 CR2d 708 (1997).] Of course, a different discovery device may still be employed (such as a deposition notice with document demand under CCP §§2025.010-2025.620.) [See Carter v. Superior Court, 218 CA3d 994, 267 CR 290 (1990).]
§21:414 Response to Untimely Motion
If the motion to compel has been served in an untimely fashion, move to strike it, since the court has no jurisdiction to grant the motion.
[See Ch 15, Attacking the Pleadings.]
§21:415 Responding Party’s Opposition
Once the relevancy/good cause burden is met by the propounding party, the responding party then has the burden to establish or justify any objections made to the document disclosure. [Kirkland v. Superior Court, 95 CA4th 92, 98, 115 CR2d 279, 284 (2002).] This includes establishing the factual predicate for claims of privilege. [See Green & Shinee v. Superior Court, 88 CA4th 532, 537, 105 CR2d 886, 889 (2001) (attorney client privilege); Bridgestone/ Firestone v. Superior Court, 7 CA4th 1384, 1393, 9 CR2d 709, 713 (1992).] Again a fact specific showing, based on declarations, should be made as to the burden, inconvenience, or expense that will be incurred. Demonstrate how the demand demands a search for a “needle in a haystack.” Demonstrate how the discovery impacts on a person’s right to privacy, so that protections come into play. Such protections extend to both a person’s financial and personal matters. The court must balance competing rights — the right of a litigant to discover relevant facts and the right of an individual to “maintain reasonable privacy.” [See Shaffer v. Superior Court, 33 CA4th 993, 999, 39 CR2d 506, 511 (1995).]
Privacy concerns subject to protection include such things as financial affairs, political affiliations, medical history, sexual relationships, and confidential personnel information. [Hooser v. Superior Court, 84 CA4th 997, 1003-04, 101 CR2d 341, 346 (2000).] Obviously, the less sensitive the nature of the personal information that is sought to be discovered and the more substantial the showing of the need for the discovery, the greater the likelihood there will be disclosure. [Shaffer, 33 CA4th at 999.] Indeed, this same kind of balancing should be performed by the court as to burdensome and oppressive demands. [Stadish v. Superior Court, 71 CA4th 1130, 1146, 84 CR2d 350, 359 (1999).] Thus, the court should properly weigh the probative value of the discovery sought against the time, expense, disruption to business and inconvenience that would result from an order compelling production and whether alternative less intrusive means of procuring information is available before ordering production. [See, e.g., Calcor Space Facility, Inc. v. Superior Court, 53 CA4th 216, 223, 61 CR2d 567, 571 (1997); Perez v County of Santa Clara, 111 CA4th 671, 678, 3 CR3d 867, 874 (2003) (instead of ordering production of nonparty nurses’ personnel records, requiring general information by race, but not by name, in interrogatory responses due to privacy concerns).]
Sanctions are available for the prevailing party and for failure to obey an order compelling further response. [CCP §2031.310; see §21:440 ff.]
§21:417 Monetary Sanctions Timing: 45-Day Rule Does Not Apply
While a motion to compel must be filed within 45 days of the service of a response [§21:413], a separate motion for discovery monetary sanctions may be brought later; for example, after prevailing on the motion to compel. However, promptness and timeliness are always a virtue (and subject to a court’s discretion and deeming the motion untimely), so it is advisable that a party place its request for monetary sanctions in its motion to compel further response, but there is no legal requirement to do so. [London v. Dri-Honing Corp., 117 CA4th 999, 1008, 12 CR3d 240, 247 (2004).]
§21:430 Motion to Compel Compliance With Response
If responding party fails to permit the inspection in accordance with its statement of compliance [CCP §2031.220], the demanding party’s remedy is to file a motion compelling compliance pursuant to CCP §2031.320. There is no specific time frame within which this motion must be brought, nor is there an explicit “meet and confer” requirement. However, it is inconceivable that a motion can be brought without dialogue as to when the promised compliance will occur. Indeed, a motion to compel without a showing of meeting and conferring is doomed and likely to result in monetary sanctions against the moving party.
Sanctions are available for the prevailing party and for failure to obey an order compelling compliance. [CCP §2031.320; see §21:440; see also, §20:325 et seq.]
For motions for a protective order, to compel a response, to compel further responses, and to compel compliance, the court must impose a monetary sanction under CCP §§2023.010-2023.040 against any party, person, or attorney who unsuccessfully makes or opposes a motion. The sanctions must be awarded unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. [CCP §§2031.060(d), 2031.300(c), 2031.310(d), (e), 2031.320(b), (c); London v. Dri-Honing Corporation, 117 CA4th 999, 1006, 12 CR3d 240, 245 (2004) (there is an emphasis on imposing discovery monetary sanctions against abusive parties … The policy is that monetary sanctions shall be imposed unless shown to be unjustified).]
§21:441 Other Sanctions for Failure to Allow Inspection
The provisions for motions to compel response, to compel further response, and to compel compliance all provide for sanctions under CCP §§2023.010-2023.040 for failure to comply with a court order issued thereunder. [CCP §§2031.300(c), 2031.310(d), (e), 2031.320(b), (c).] The court can award:
- Issue sanctions;
- Evidence sanctions;
- Terminating sanctions; or
- Monetary sanctions.
[CCP §§2023.010-2023.040, 2031.300-2031.320.]
§21:442 Issue Sanctions
The court may impose an issue sanction ordering that designated facts be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. [CCP §2023.030(b); see Vallbona v. Springer, 43 CA4th 1525, 1548, 51 CR2d 311, 326 (1996) (“the court could properly impose the issue sanction without a prior order compelling defendants to comply with discovery since, as discussed, requiring plaintiffs to seek such order would have been futile in light of Dr. Springer’s claim the requested documents had been stolen;” sanction implemented by “instructing the jury” as to facts deemed admitted); Sauer v. Superior Court, 195 CA3d 213, 230, 240 CR 489, 499 (1987) (issue preclusion when failure to supply information relevant to a particular claim—order puts demanding party in same position had documents been entirely favorable to it); In re Marriage of Chakko, 115 CA4th 104, 109, 8 CR3d 699, 702-03 (2004) (issue sanctions directly addressed the discovery violation because it provided the district attorney with the very information that father refused to provide voluntarily: evidence of his income or access to funds tantamount thereto); Karlsson v. Ford Motor Co., 140 CA4th 1202, 1219, 45 CR3d 265, 278-79 (2006) (persistent refusal to comply with discovery requests (even if not in violation of a court order) is equated with an admission that the disobedient party has no meritorious claim in regard to that issue, the appropriate sanction for such conduct is preclusion of that evidence from trial, even if that proves determinative in terminating the offending party’s case).]
§21:443 Evidence Sanctions
The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. [CCP §2023.030(c); see BAJI 2.03 Willful Acts to Preclude Use of Evidence; CACI 204.]
- Karlsson v. Ford Motor Co., 140 CA4th 1202, 1220, 45 CR3d 265, 279 (2006) (in products liability action against car manufacturer, because manufacturer prevented discovery about its warnings concerning use of its lap seat belt, sanctions in the form of instructions essentially stating that no warnings were given were proper even though the owner’s manual contained some warnings).
- Vallbona v. Springer, 43 CA4th 1525, 1544-45, 51 CR2d 311, 324 (1996) (evidence sanction when responding party claimed documents had been stolen, then tried to introduce the materials at trial).
- Juarez v. Boy Scouts of America, 81 CA4th 377, 390, 97 CR2d 12, 21 (2000) (absent some unusual extenuating circumstances not present here, the appropriate sanction when a party repeatedly and willfully fails to provide certain evidence to the opposing party as required by the discovery rules is preclusion of that evidence from the trial — even if such a sanction proves determinative in terminating plaintiff’s case).
- Pate v. Channel Lumber Co., 51 CA4th 1447, 1455, 59 CR2d 919, 924 (1997) (exclusion of unproduced documents revealed only after plaintiff had completed case in chief at trial despite reported assurances during discovery that all documents had been produced).
- Deeter v. Angus, 179 CA3d 241, 254-55, 224 CR 801, 808 (1986) (exclusion of unproduced tape recording to prevent unfair surprise at trial).
- West v. Johnson & Johnson Products, Inc., 174 CA3d 831, 873-74, 220 CR 437, 463 (1985) (instruction given when one wholly owned subsidiary failed to produce relevant documents of another wholly owned subsidiary and expert retained by subsidiary had access to the documents).
The court may also do the reverse and order a recalcitrant party to produce otherwise privileged documents when the party has refused to produce relevant nonprivileged documents. [Weingarten v. Superior Court, 102 CA4th 268, 275-76, 125 CR2d 371, 376-77 (2002) (in punitive damages phase requiring tax returns to be produced when defendant refused to produce non-privileged financial information).]
§21:444 Terminating Sanctions
The court may impose a terminating sanction by one of the following orders:
- An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. [CCP §2023.030(d)(1); see Collisson & Kaplan v. Hartunian, 21 CA4th 1611, 26 CR2d 786 (1994) (order striking answer of defendants); American Home Assurance Co. v. Societe Commerciale Toutelectric, 104 CA 4th 406, 128 CR2d 430 (2002) (striking answer of French corporation); Rail Services of America v. State Comp. Ins. Fund, 110 CA4th 323, 1 CR3d 700 (2003) (appropriate to dismiss single cause of action rather than entire action as a discovery sanction when refusal related to evidence concerning dismissed claim only).]
- An order staying further proceedings by that party until an order for discovery is obeyed. [CCP §2023.030(d)(2).]
- An order dismissing the action, or any part of the action, of that party. [CCP §2023.030(d)(3); see R. S. Creative, Inc. v. Creative Cotton, Ltd., 75 CA4th 486, 496, 89 CR2d 353, 360 (1999) (the record amply supports the trial court’s exercise of its discretion in dismissing the complaint as a sanction for the repeated efforts of the plaintiffs to thwart discovery, including the violation of two discovery orders); Jerry’s Shell v. Equilon Enterprises, LLC, 134 CA4th 1058, 1069, 36 CR 3d 637, 645 (2005) (“Repeated failure to respond to discovery and to comply with court orders compelling discovery provides ample grounds for imposition of the ultimate sanction”—dismissal); Mileikowsky v. Tenet Healthsystem, 128 CA4th 262, 279, 26 CR 3d 831, 844 (2005) (“where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction”).]
- An order rendering a judgment by default against that party. [CCP §2023.030(d)(4); see Lang v. Hochman, 77 CA4th 1225, 92 CR2d 322 (2000) ($22 million default judgment against defendants after they failed to comply with three discovery orders); Electronic Funds Solutions v. Murphy, 134 CA4th 1161, 36 CR 3d 663 (2005) (defendants’ answer stricken and default judgment entered after defendants repeatedly failed to comply with discovery requests and orders and even went so far as to attempt to wipe memory of computer before turning it over).]
The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court. [CCP §2023.030(e).]
§21:445 Monetary Sanctions
The court may impose a monetary sanction order that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both, pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized, the court must impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances made the imposition of the sanction unjust. [CCP §2023.030(a); see, e.g., Sherman v. Kinetic Concepts, Inc., 67 CA4th 1152, 79 CR2d 641 (1998) (sanctions for failure to produce documents (even without a motion to compel) in an amount to compensate for entire attorney fees incurred in first trial when demanded evidence had not been produced).]
The general rule is that monetary sanctions are awarded first; only thereafter are more dramatic sanctions appropriate. [Kravitz v. Superior Court, 91 CA4th 1015, 1021, 111 CR2d 385, 389 (2001) (“When one party attempts to use the discovery process as a financial bludgeon or an obfuscation tool, the most readily identifiable cost to the other party is the attorney’s fees incurred in response to the abuser’s acts or omissions. Where no fees are incurred, the abuser gets one free bite – because issue, evidence, and terminating sanctions must all be preceded by the abuser’s disobedience of an order compelling him to do that which he should have done in the first instance.”).] Of course non-monetary sanctions (issue preclusion, evidence sanctions) will be appropriate even without violation of a previous discovery order when the offending party has engaged in discovery abuse causing the unavailability of evidence. [Karlsson v. Ford Motor Co., 140 CA4th 1202, 1219, 45 CR3d 265, 278-79 (2006).]
While Kravitz holds that a party in pro per may not recover fees (even if that party is an attorney), the fact that an attorney is acting pro bono does not suggest no fees should be awarded. The attorney’s time, which otherwise was wasted due to the other side’s failure to comply with discovery obligations, should be compensated. [Do v. Superior Court, 109 CA4th 1210, 1218, 135 CR2d 855, 861 (2003).]
§21:446 General Standards for Sanctions
The general principle is that, initially, sanctions are to make things fair and to make the discovery process work. Thus, the demanding party (at least for initial discovery failures) should not be put in a better position than if the evidence had been produced. “Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” [Vallbona v. Springer, 43 CA4th 1525, 1545, 51 CR2d 311, 324 (1996); Sauer v. Superior Court, 195 CA3d 213, 229, 240 CR 489, 499 (1987) (“court was attempting to tailor the sanction to the harm caused by the withheld discovery.”).]
§21:447 Trial Court’s Discretion
While a trial court has broad discretion to impose discovery sanctions, generally there are two prerequisites to the imposition of non-monetary sanctions (evidence or issue preclusion or terminating sanctions): (i) absent unusual circumstances there must be failure to comply with a court order (or a binding stipulation entered in lieu of a court order [Mileikowsky v. Tenet Healthsystem, 128 CA4th 262, 278, 26 CR 3d 831, 843 (2005)]), and (ii) the failure must be willful. [Biles v. Exxon Mobil Corp., 124 CA4th 1315, 1327, 22 CR 3d 282, 290 (2004).] Where non-monetary sanctions are appropriate they should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. Such sanctions are to effectuate the purposes of discovery rather than impose punishment. [Biles v. Exxon Mobil Corp., 124 CA4th 1315, 1327, 22 CR 3d 282, 290 (2004); Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns, 7 CA4th 27, 35, 9 CR 2d 396 (1992).] But where a violation of a court order or stipulation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with these discovery rules, the trial court is justified in imposing the ultimate sanction. [Mileikowsky v. Tenet Healthsystem, 128 CA4th 262, 279, 26 CR 3d 831, 844 (2005);Jerry’s Shell v. Equilon Enterprises, LLC, 134 CA4th 1058, 1069, 36 CR 3d 637, 645 (2005) (repeated failure to respond to discovery and to comply with court orders compelling discovery provides ample grounds for imposition of the ultimate sanction. “A party who is unwilling to, or whose counsel is incapable of, performing the obligations of litigation with diligence should not be surprised when the right to proceed is lost.”).] Still, sanctions may be entered even when there has been no prior order compelling discovery or even a prior motion to compel. Thus, sanctions may be sought even after trial. [Sherman v. Kinetic Concepts, Inc., 67 CA4th 1152, 1164, 79 CR2d 641, 648 (1998) (party could not have moved to compel production of documents they did not know existed, nor could they have sought sanctions before they determined defendant’s responses were inadequate or evasive).] The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. [Vallbona v. Springer, 43 CA4th 1525, 1545, 51 CR2d 311, 324 (1996); Mileikowsky v. Tenet Healthsystem, 128 CA4th 262, 279, 26 CR 3d 831, 844 (2005) (“only the threat of terminating sanctions caused responses to be submitted. The court was not required to allow this pattern of abuse to continue ad infinitum. It did not abuse its discretion in ordering terminating sanctions.”).]
§21:448 Contents of Request: No Ex Parte Order
A request for a sanction must, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought and specify the type of sanction sought. The notice must be supported by a memorandum of points and authorities. It must be accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought. [CCP §2023.040.] “Discovery sanctions may not be ordered ex parte, and an order purporting to do so is void.” [Sole Energy Co. v. Hodges, 128 CA4th 199, 208, 26 CR 3d 823, 829 (2005).]
Judge Owen Lee Kwong is presently assigned to the Alternate Dispute Resolution Department of the Los Angeles Superior Court. Previously, he was assigned to a direct calendar fast-track civil trial court. He has presided over civil, criminal, delinquency, dependency, and probate proceedings and has sat on assignment (pro tem) on the Court of Appeal. Judge Kwong was appointed in April 1989 to the Los Angeles Municipal Court by Governor Deukmejian and elevated in January 1993 to the Los Angeles Superior Court by Governor Wilson. He was the Supervising Judge for the central arraignment courts, Los Angeles Municipal Court and Supervising Judge for the East District Juvenile Court, Los Angeles Superior Court.
Robert F. Kane practices civil and criminal trial and appellate litigation with his firm, Rockwell & Kane, located in San Francisco, California. Mr. Kane is also an Adjunct Professor of Law at the University of California, Hastings College of Law where he was named a teacher of the year in 2003. In addition, Mr. Kane serves as Judge Pro Tem for the San Francisco Superior Court and is a member of various Superior Court Arbitration and Mediation Panels. Mr. Kane is a member of various professional and community organizations, speaks frequently at seminars, has published numerous articles, is active in pro bono work, and has received many awards in connection with these activities.
Donald G. Rez has handled all types of commercial lawsuits including: trade regulation and antitrust matters (he was a student of Professor Phil Areeda at Harvard Law School); breach of contract; franchisor/franchisee matters; lender liability cases; malpractice; intellectual property and RICO cases. He has been involved in complex and sophisticated multi-district litigation and his antitrust experience has involved claims of virtually every kind.
They are the authors offrom which this article is excerpted.