California Trust, Estate & Probate Litigation

The following is an informative guest post from our own Byron Husted about the pitfalls of meeting and confering with opposing counsel prior to bringing a motion to compel on discovery.  Hope you enjoy!

For those of you who recognize the title of this blog you will understand that in the discovery process there is no “chance card” that lets you skip directly to filing a motion to compel discovery, and seek sanctions.  Despite a party's threat that they will seek sanctions, no court is going to award sanctions if you don't “meet and confer in good faith” and in fact will sanction you if you don't. See C.C.P. §2033.290.

First, what is the purpose of discovery?  Discovery has many purposes, but one of the main purposes is for the parties to narrow the issues.  Through proper discovery, both sides narrow down what facts and evidence are truly at issue, and what facts and evidence are not.  By doing this, both sides reach the merits of the case.

The catch is that many attorneys think they have to make discovery as difficult as possible; they object to many, if not all, of the discovery requests served on their client.  When a party is left to deal with a litany of objections, or even a complete lack of response, from an opposing party, the courts will not give you a “chance card” to advance directly to a motion to compel.  Instead, you must first try to work it out with the opposing attorney—called the “meet and confer” process. 

I always imagine a marriage counselor in this situation telling the parties that they have to actually discuss and communicate the issues if they want proper resolution. 

Code of Civil Procedure section 2030 requires a good faith attempt to resolve discovery disputes informally.

Code of Civil Procedure section 2030, subdivision (l), provides that "If the propounding party, on receipt of a response to interrogatories, deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under paragraph (2) of subdivision (f) is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general, that party may move for an order compelling a further response. This motion shall 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."

So how does one “meet and confer in good faith”?

The leading case on “meet and confer” requirements is Obregon v. Superior Court (1998). The Court enumerated what should be evaluated in determining whether a party has met and conferred in good faith.  Under Obregon, the relevant factors are:

     1. The history of the case and the past conduct of counsel as it reflects upon the

         bona fides of their efforts;

     2. The nature and extent of the actual efforts expended

     3.  The size and complexity of the case

     4.  The effect of expense upon litigation and the case

     5.  The nature of the discovery requested and its importance to the case

     6. Whether or not the discovery propounded would be so expensive for the other side that its intent was            to force settlement other than to reach the merits of the case. Obregon at 431.

Discovery is supposed to be self executing. Many discovery motions should not be in court and they result from a failure in the process that can be avoided by counsel. The meet and confer process is the single most important element in reducing the nature and extent of discovery disputes and in controlling the expenses of discovery. It will take time and effort to do properly, but will avoid a substantial amount of time and expense in the long run.  It requires good faith negotiation and often involves compromises by both sides. It should not be done in a perfunctory manner. Counsel should present their positions in the same manner they would in court---citing cases and showing how the information is relevant.

The process should be initiated by a letter.  This letter should not just be a letter demanding more responses.  The letter should lay out the party’s position with legal and factual arguments. It should be commenced in a timely fashion and provide for adequate time to respond, to reply and to discuss in person or by telephone.

Obregon is a helpful case for the court’s, but what about the litigants?  According to Townsend v. Superior Court (1998), “a reasonable and good faith attempt at informal resolution entails something more than bickering with counsel . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." 

In closing, I’d like to point out a recent lesson that I was taught—probably one of the most important lessons regarding the meet and confer process.  When drafting your “meet and confer” letters, realize that in many cases you are not going to actually convince opposing counsel that you are right.  Rather, draft the letter as if you are writing directly to the judge.  Lay out your arguments.  State the facts that show why your requests are relevant to the case.  Clarify your questions and narrow the scope.  And remember, if the “meet and confer” process fails, you will be attaching all your letters to your motion to compel for the judge’s review.  

By executing the “meet and confer” process properly, you will hopefully land on “Park Place” you’re your motion to compel and not a “Baltic Avenue”.

I’m still amazed when defense attorneys direct their clients not to answer my questions during a deposition where no privilege exists. In other words, the defense attorney simply assumes the role of judge and decides what questions their client will and will not answer. Of course, the defense attorney instructs their client not to answer any damaging questions, even where no privilege (i.e. attorney-client, etc.) applies.

When this happens in my depositions, I request the court reporter to mark the record in anticipation of bringing a motion to compel the deponent to answer my valid questions at a future deposition. For my motion to compel I rely primarily on Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006.  

In Stewart, the defense attorney repeatedly directed his client not to answer questions at deposition on the ground that they were not calculated to lead to the discovery of admissible evidence. The plaintiff’s attorney, in response, filed a motion to compel further answers with the court. At the hearing, the judge remarked to the defense attorney, as follows:

So you’re the Mr. Wolfe that sat in the deposition and instructed the witness not to answer questions because you didn’t think they were relevant. Well that’s not your role. You are ordered not to instruct the witness not to answer a question during any deposition in this case unless the matter is privileged. The proper procedure is to adjourn the deposition and move for protective order. You don’t assume the role of judge and instruct the witness not to answer a question in a deposition. That is a huge no-no. (Stewart at p. 1101.)

The Court then ordered the defense attorney to pay sanctions to the plaintiff’s attorney in the amount of $2,400.

The defense attorney didn’t leave well enough alone. He appealed the trial court’s $2,400 sanction. The court of appeal quickly dispatched the defense attorney’s appeal holding that deponents are not to be prevented by their attorneys form answering a question unless it pertains to privileged matters or the deposing attorney’s conduct has reached a stage where suspension of the deposition is warranted. (Stewart at 1015.) The court of appeal affirmed the trial court’s ruling.

The next time any attorney orders their client not to answer a question at deposition where no privilege exists, point out the holding in Stewart on the record as a meet and confer, and then you’ll have a slam dunk motion to compel if the attorney continues to direct their client to not answer.