CIVIL DISCOVERY PRACTICE POINTS for LAW & MOTION

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CALIFORNIA DISCOVERY LAW
© Richard E. Best 1999-2006 All Rights Reserved

CASE MANAGEMENT CONFERENCE: the first "motion"
Sample court setting memo and checklist

The hype accompanying the adoption of FRCP rules regarding e-discovery focused commentators and lawyers on the duties to meet and confer early on discovery matters and on the case management. In some courts, the days of the "drive-by meet and confer" may be numbered and lawyers may have to devote time, talent and energy to use this process effectively. Those who adopt a passive approach or rely on evasion or ignorance may be at a serious disadvantage. Lawyers must have both an understanding of their case and a clear idea of their discovery goals. They need a strategy with specific objectives and proposals. This may be the the first and most important contact with opposing counsel and the court and may greatly influence the conduct of the litigation and the nature of the relationships of the participants.

From the time civil discovery rules were first enacted for the avowed purposes of reducing the cost of litigation and resolving disputes in an expeditious manner, lawyers, litigants and judges have been complaining about discovery. Often, the solution proposed is to rewrite the rules and sometimes they are rewritten; but, the complaints continue unabated: perhaps because generic rules may not fit all cases; perhaps because the effective implementation and enforcement of rules is critical; perhaps because the rules and concepts are not being used effectively.

Lawyers and judges may not be using all the tools available to formulate a cost efficient and effective discovery program. Too often the routine use of what amounts to boilerplate discovery simply increases costs without providing meaningful discovery that can be used in trial preparation or trial. Making motions is time consuming and expensive, can delay meaningful discovery for months if not years, and may only result in piles of useless paper. However, counsel and courts can modify rules and procedures and use the flexibility of the discovery rules to facilitate the process. In this arena, lawyers can provide an invaluable service for their clients and the courts if they work together for their mutual benefit and if they enlist the services of the court to formulate and enforce procedures tailored to their needs and the specific litigation.

Although the discovery rules generally work when followed in good faith, one size does not always fit all and fine tuning or modification of rules may be desirable for all concerned. Discovery rules and concepts combined with deference to trial court discretion provide flexibility for fine tuning. Much modification and fine tuning occurs in the normal course as lawyers take a practical approach to discovery in the particular case and as courts set parameters through case management orders and by ruling on issues that are not resolved in the meet and confer process. However, ongoing litigation with unique characteristics or complexities may justify a more creative and aggressive approach in pursuit of the common interest of cost efficient and effective trial preparation.

For many years, courts have recognized these needs in adopting special rules for "complex" litigation, by providing for assignment of cases to one judge for all purposes, and by providing financing for experimentation by pilot projects on "complex" civil litigation. The volume of asbestos and other mass tort cases has resulted in special discovery rules and case management in some courts to facilitate that litigation. Federal and various state courts have adopted rules or legislation for case management either universally or on a selective basis and there is much more that could be done in the rule making arena to facilitate discovery. These special rules and any evaluation of their effectiveness can serve as examples of what might be adopted in other litigation. However, such rules are only a starting point and their effectiveness depends upon implementation by knowledgeable and conscientious judges who have the time and interest to devote to the process and who can modify rules to fit the litigation before them.

Although governmental institutions focus special attention and funds on cases involving large sums of money or consuming inordinate amounts of judicial time, the need for special attention may be more acute in smaller cases where individuals cannot afford unlimited litigation budgets and lawyers are restrained by economic realities.

The following sections provide authority in California to modify procedures and control discovery by stipulation or court order. Seldom are these sections used to their full potential to modify discovery procedures to fit the particular litigation, to control wasteful and unproductive discovery, and to achieve cost effective, efficient, and essential discovery.

Code of Civil Procedure Section 2016.030 allows lawyers to write their own rules and provides:

Presumably, the written stipulation would be enforced by the court "unless the court orders otherwise". There seem to be no standards for court rejection of a stipulation; but, it appears to be a fail safe provision that would only be invoked to prevent some injustice or violation of public policy or substantive law. Nothing prohibits the parties from stipulating that the judge or discovery referee modify procedures as part of a case management order, pursuant to motion, or on its own motion. That power could be expressly granted and qualified by the parties and by allowing a veto of any modification by unanimous written agreement of all parties though such control seems implicit..

Code of Civil Procedure Section 2017.730 et seq. allows courts to modify procedures to use technology to achieve cost effective discovery. As courts and lawyers increase their discovery and use of electronic data and documents and begin to embrace the use of technology in the litigation process, lawyers should seek the application of proven technology to achieve cost savings and efficiency. This section provides authority for procedural modifications limited only by the creativity and initiative of bench and bar.

Various sections authorizing protective orders provide authority to limit discovery to protect against undue burden, expense and intrusiveness and courts are generally afforded wide discretion in this area. CCP§2017 applies generally to discovery but each discovery device contains its own provisions for protective orders. They provide examples of the types of orders that can be obtained but are not limited to those examples. Even the examples provide extensive power to the courts to control and tailor discovery to the needs of the particular case. For example, CCP§2025.420 not only provides for the prohibition and regulation of the manner of taking and scope of depositions but provides for simultaneous filing of documents under seal and for protecting confidential information. CCP §§2030.090, 2031.060, 2033.080 contain similar broad authority to regulate written discovery, 2034.250 provides for modifications of expert discovery and 2032 provides for regulation of medical examinations. An example of how to use the expert protective orders is to provide for earlier disclosure of experts in a case that involves numerous experts or where expert testimony is the major component of the case.

A full discussion of the many ways in which the rules could or should be modified to fit particular litigation is not required to appreciate the benefits to be derived. Application of this approach is limited only by the creativity of the participants and practical considerations. In every case, reasonable lawyers who have good professional relationship with opposing counsel should consider and discuss possible alternatives with opposing counsel. Mandatory case management conferences in every case may be wasteful; but, a voluntary one between counsel designed to result in appropriate stipulations and court orders, perhaps followed by a conference with the court, should be considered. Any effort to reach a stipulation with counsel or to seek court intervention should be done at the earliest possible time and before relations between counsel are strained or time constraints prevent flexibility or impose hardships.

Often parties are well served by stipulating and retaining the services of a discovery referee who will be available throughout the case and on an informal basis to resolve discovery issues without the necessity of a motion. In so doing, they could agree on any approach to discovery dispute resolution: e.g. whether or not to have strict compliance with the rules, imposition of sanctions, informal resolutions, required telephonic appearances, lengthy or no hearings, or whatever they desire in the resolution process. Disputes differ. Often, two good lawyers can agree on and summarize the relevant facts and issues in a few minutes. A proper decision can often be rendered on that type of presentation without the necessity of spending tens of thousands of dollars and weeks or even months to obtain the same result through law and motion practice. Sometimes it is more important to obtain a decision and get on with trial preparation than it is to be the prevailing party. However, sometimes it is important to reserve the right to fully brief and argue the issues and to have a complete record and full recourse to the appellate courts. A referee might be retained to sit in on a deposition or be available by phone to resolve disputes. Either is a preferable and more cost effective discovery tool than engaging in disputes at the deposition followed by meet and confer sessions, followed by motions, followed by hearings, followed by disputes as to the form of the order, followed by problems in rescheduling the depositions, followed by more disputes at the deposition, especially when trial is set a month later.

Lawyers have many tools to facilitate discovery but most are not being used to their full potential. Counsel can create their own discovery rules and procedures tailored to the needs of the particular litigation. This is best achieved at an early stage of the litigation and by cooperation with opposing counsel but court intevention may be required.

See also CASE MANAGEMENT CONFERENCE: the first "motion"
Sample court setting memo and checklist

MEET & CONFER AS A DISCOVERY ABUSE
Meet and confer rules should save time and money while expediting and facilitating the discovery process. When the process takes on a life of its own or is used to obstruct the discovery process, it fails to achieve its purpose and may rise to the level of a discovery abuse that could subject a party or counsel to sanctions pursuant to CCP§2023.

The "rule" requires a "REASONABLE AND GOOD FAITH ATTEMPT AT AN INFORMAL RESOLUTION OF ANY ISSUE". It is a clear, simple rule based on common sense and should be easy to follow by those who want the discovery process to work. For anyone else, there are monetary sanctions required by CCP§2023.010(i). The rule does not attempt to prescribe any procedure for compliance and relies on the common sense of lawyers and judges to make the system work.

Making this simple rule work require lawyers to use common sense, to act in good faith, to be reasonable, to be flexible, to be practical, and to be problem solvers. The rule does NOT create a new layer of discovery procedures and processes; it does not require delays in the discovery process; it does not provide a new objection to providing discovery; and it is not designed to frustrate the discovery process or increase the cost of litigation. The rule does not require lawyers to exchange lengthy, detailed, elaborate or self-serving meet and confer letters. It does not require any letter, though a good faith and reasonable letter might be an appropriate means of initiating the informal process. It does not require a meeting or telephone call, though an informal, face to face meeting may be the most effective means to resolve the issues. It does not require a lawyer to compromise on important issues such as a client's privilege. It does require at least some effort by each side even when a lawyer is positive no resolution is possible or that opposing counsel is hopelessly wrong and confused.

Although the rule is simple and straight forward, the appellate courts have been required to address the subject on at least nine occasions. See Meet & Confer Case Outline at http://californiadiscovery.findlaw.com/MEET_AND_CONFER_WEB.htm The Townsend case teaches that argument among and between counsel in the heat of the deposition is not compliance. The Obregon case teaches that the process should be timely initiated and is not satisfied merely by a perfunctory or demanding letter. It also makes clear that the rule is not designed to prevent discovery. The Leko case put substance and practicality ahead of form when it held that contact meant listen to opposing counsel. The Stewart case emphasized the practical approach and made clear the rule should not be used to thwart the discovery process.
Read as a whole, the cases have one equally simple instruction: MAKE THE PROCESS WORK OUTSIDE OF COURT IN A COST EFFECTIVE AND EFFICIENT MANNER.

San Francisco adopted a meet and confer rule during the 1970's and it revolutionized the nature and extent of discovery hearings. Subsequently, it was adopted as a statewide rule and today is found in most sections of the Discovery Act relating to most motions. It is an effective rule in the quest for cost effective discovery. If abused, it might result in discovery sanctions pursuant to CCP§2023.

SPOLIATION SANCTIONS
Spoliation is no longer recognized as an independent tort in California. When eliminated by the Cedars-Sinai case and its progeny, one rationale was that the destruction of evidence could be remedied within the existing action by discovery sanctions or otherwise. It was suggested that the destruction of evidence was an independent abuse of discovery under CCP §2023 that could give rise to appropriate pretrial sanctions within the pending action. It was not made clear whether this was an expansion of the sanction powers of the trial court. Spoliation issues arguably beyond the express terms of the Discovery Act would include the duty to preserve evidence absent a formal request or specific order and the imposition of exemplary or punitive sanctions. In addition, an issue not addressed is whether the imposition of spoliation sanctions would require the proof of elements and findings by the court heretofore required by the independent tort of spoliation. Cedars-Sinai and its progeny plus the R.S. Creative case and the Sherman v. Kinetic Concepts case suggest or support an expansion of the sanctions powers of the trial court. In addition, numerous cases have cited the broad and non-exclusionary language of C.C.P. §2023.010 [former §2023(a)] alone to justify discovery sanctions. The R.S. Creative case suggests that the tort elements need not be proven. Legislation was proposed in 2001 to add the destruction of documents as item 10 in the list of discovery abuses set forth in former CCP §2023(a) but no action was taken that year on the bill.

Based on the cases set forth in the Spoliation section of the Sanctions Case Outline, the spoliation sanction in California may be described as follows:

Meet and confer rules evolved as local rules, state rules and now statutory rules in most discovery disputes. They have revolutionized the discovery motion process and the nature and length of hearings. They are the single most effective device to reduce costs and to focus court proceedings on legitimate and important disputes.

Some motions do not require an attempt to informally obtain discovery prior to making the motion. However, counsel concerned with saving time and money and obtaining prompt compliance will do so anyway. Why make a motion when a phone call, email, or letter will elicit the discovery and is likely to produce the discovery faster than a motion? In addition, an informal resolution is likely to contribute to a good professional working relationship with opposing counsel. If a motion is required to obtain discovery, the fact that you have attempted to obtain it without a motion strengthens your justification for monetary sanctions to compensate for your time. Some courts may be reluctant to award full compensating sanctions on a motion when it is clear that a phone call could have achieved the same result and the motion was unnecessary.

Many motions must be accompanied by declaration showing a good faith attempt at informal resolution of each issue presented by the motion; i.e. the meet and confer process must precede the motion and is a prerequisite for a motion. However, opposing counsel should not use this rule solely as a means of obstructing and delaying legitimate discovery and should assert the failure to comply when there is a reasonable possibility to resolve or reduce the issues. Normally, the meet and confer process will be productive even when the initial analysis is that it would be futile.

The meet and confer process is important and should be approached in the same manner as the motion or as a settlement conference. It is not a perfunctory hurdle for counsel to jump as a prerequisite to a court hearing. See the Townsend and Obregon cases and the Meet & Confer Case Outline. As the Obregon case illustrates, delaying the process tends to frustrate or destroy it. Ultimatums sent by regular mail over the weekend are not likely to be effective. If a motion is required counsel will have to set forth their best arguments and authorities; doing so during the meet and confer process may avoid the motion. Negotiation and compromise may provide the discovery needed without the expense of a motion.

Try to set forth all essential elements of your motion in the Notice of Motion and Motion: who, what, when, where, why, how and based on what legal authority. By doing so, you tell the judge or law clerk exactly what they need to know and what the issues are. You can start the proceeding with a favorable impression that may linger through the entire motion. The rest of the moving papers should then support each of those elements. A well written notice of motion may be 90% of the battle in many cases. Start by making the caption itself a part of your advocacy and set forth as much as possible in the caption.

In contrast, a motion that merely says it is a "Motion to Compel" or even a "Motion to Compel Discovery" or a "Motion for Protective Order" is of minimal value. If the body of the motion continues with generalities and says it is based on all pleadings and documents filed to date, it is almost of no value. Often, there is a major issue such as self incrimination, attorney client privilege, right to privacy. If you highlight that issue in the motion you focus the court's attention from the beginning.

Identify all papers specifically supporting your motion so the court is on notice what search to make to review the motion especially if there are multiple declarations. In addition, complimentary copies, well organized and tabbed, in binders or folders are the best way to assure everything is before the court for review.

Many lawyers fail to recognize the importance of the Separate Statement required by CRC Rule 335. Normally, it is the single most important document in resolving disputed motions on written discovery because it is the one document the court can use to focus on the issues that must be decided: e.g.. does this specific question have to be answered or was it actually answered. Since it contains the text of the demand and response, it is likely to be the one document the judge is looking at when the decision is made. In comparison, statements of fact and generalities of law in memoranda are of minor persuasive importance. Even highly pertinent briefing in the memorandum of points and authorities is less persuasive than the argument addressed to the specific issue on the specific question and response that must be decided. There, in one cohesive document, is the demand for discovery, all responses, and the moving party's explanation of the importance and necessity for the discovery and the deficiency of the responses and lack of merit of any objection. The moving party has a big advantage in setting forth its version of the dispute in the separate statement but many lawyers fail to take advantage of the opportunity.

The "factual and legal reasons for compelling" the discovery should be carefully drafted and addressed to the specific discovery and the specific issues to be decided. The Separate Statement should be devoid of boilerplate, the assertion of conclusions or generalities, or senseless repetition. Counsel should not view the Separate Statement as just another hoop to jump through on the way to a hearing. Rather, if properly handled, it is a golden opportunity to win the motion.

The Separate Statement format should be used even when not expressly required by Rule 335 if the discovery request and response are at issue. For example, a motion to quash a subpoena for documents may require the court to evaluate the discoverability of the particular categories. If the judge is looking at your statement of the category of documents, your objection and your explanation as to the specific deficiencies, you have a big advantage over your opponent. A motion for evidentiary or issue sanctions for not producing documents or answering questions requires the formulation of a sanction based on the discovery defect. A separate statement with the question, the answer, the explanation of the deficiency, and the proposed issue or fact to be determined as a sanction for that deficiency is an effective manner to show the court that the requested sanction is appropriate. It is also an effective way to present the established fact or issue rather than rely on the court to formulate it.

The specific discovery sanction sections [e.g.2030.090(d)]provide for sanctions against a party "who unsuccessfully...opposes a motion". Thus, the theory goes, if you delay, deny and frustrate discovery you cannot be sanctioned unless you also formally oppose a motion. If you are clearly wrong, why bother since you cannot be held accountable for your actions. New CRC Rule 341, effective July 1, 2001, clarifies that such discovery abuses may be subject to sanctions under the specific discovery sections as well as under CCP §2023.010. Previously this court rejected the nonaccountability theory and issued the following tentative ruling.

Despite the introductory language of CCP§2023.030 ["to the extent authorized."], appellate courts have recognized the authority of trial courts to impose sanctions pursuant to CCP §2023 to control discovery abuses. Cedars-Sinai Medical Center v. Superior Court(1998) [court observes that destruction of evidence would be an abuse of the discovery process and result in sanctions even though not expressly covered by specific discovery statute]. Vallbona v. Springer (1996), 43 Cal.App.4th 1525 [CCP2023 (a)(4) & (b)(3) basis for sanctions; no prior court. order for evid. & issue sanctions]. Do It Urself Moving & Storage Inc. at p. 35 [prior order for discovery not required]. Kuhns v. State of California (1992). Kohan v. Cohan (1991),229 CA3d 967 [ 2023(b)(1) sanctions for improper expert declaration]. Mattco Forge Inc. v. Arthur Young & Co.(1990),[2023 list not exclusive; reconsideration motion was abuse of discovery]. Contra Zellerino v. Brown 235 CA3d 1097, lll4. Collisson & Kaplan v. Hartunian(1994),2l Cal.App.4th 1611(Basis for tr.ct.order but not issue on appeal). Waicis v. Superior Court (1990), 226 Cal.App.3d 283, 287. Sherman v. Kinetic Concepts (1998), [Despite lack of specific discovery sanction provisions, CCP §2023(a) was authority for post trial sanctions; concealment of documents; ct app. reversed tr ct denial of sanctions and required granting new trial and full monetary compensation for prior trial plus consideration of further sanctions short of default judgment].

Although plaintiff provided some responses after forcing defendant to make the motion, Plaintiff advances the argument that a party may refuse to provide discovery, ignore letters and other efforts to obtain discovery informally, force a person to make a motion, continue to ignore the discovery and force a person to travel to court for an appearance to obtain an order, and not be held accountable for their actions simply because they ultimately admit their wrongdoing and fail to file formal opposition. Under plaintiff's approach to discovery, any party can ignore discovery and force opposing parties to make motions and obtain orders before there is any meaningful obligation to respond. Discovery is supposed to be self-executing and motions are not supposed to be a prerequisite to discovery. In this case, defendant sent a meet and confer letter though there was not even a statutory obligation to do so. It appears that plaintiff ignored that overture and forced the motion. Yet despite CCP 2023.010(i), under plaintiff's theory of discovery, opposing parties and the court are powerless to address such abuses if there is no formal opposition to the discovery because none can be raised.

Numerous cases have implored trial courts to control discovery abuses. See Calcor. Recently, in Cedars-Sinai, the Supreme Court has emphasized the use of sanctions not expressly authorized by statute to correct discovery types of abuses. In Sherman v. Kinetic Concepts the appellate court emphasized again the importance of controlling abuses even though the specific abuse may not be within the exact language.

Plaintiff has not suggested any new facts support a different decision from that at the prior hearing and a reconsideration motion is a further abuse of discovery that has again forced defendant to file opposition and come to court when all that was required originally was a response in accord with the Discovery Act and the courtesy to respond to defendant's overture to resolve the matter. Plaintiff's motion is denied and defendant's request for additional sanctions is granted in the reasonable amount requested.
It should also be mentioned that the interpretation prohibiting sanctions is totally inconsistent with the theory of discovery being self executing and sanctions being "automatic" or "mandatory" to compensate parties for being forced to make unnecessary motions to get the discovery they are entitled to receive without a motion.

APPEAR FOR DEPOSITIONS unless you obtain a protective order prior thereto

A subpoena or notice obligates a person to attend a deposition. To avoid the obligation to appear, a protective order, preceded by a meet and confer, should be obtained. A non-appearance by a party deponent is only permitted in limited situations involving deficient notices and should not occur except in clear cases. Merely objecting to a deposition is insufficient to avoid the obligation to attend except for consumer records objections per CCP 1985.3 and, arguably, when the notice for a party's deposition is deficient and a "valid objection under §2025.410 is served". [i.e.where the notice fails to comply with Article 2 and timely objection is made per §2025.410, though the party should seek a protective order as authorized by §2025.410. See C.C.P.§ 2025.450).] Written discovery allows a party to serve specific objections to specific discovery requests and to force the other side to seek court orders but depositions normally do not. Instead the deposition provisions, CCP §2025.410(c) and C.C.P. §2025.420(a) allow a person objecting to discovery to obtain a protective order to prevent the deposition from going forward. Both protective order sections require a prior good faith effort to resolve matters. They differ in that CCP §2025.410(c) deals only with a failure to comply with the notice requirements of Article 2 while C.C.P. §2025.420(a) deals with any objections. If a protective order is sought pursuant to §2025.410(c), the deposition is automatically stayed but that is not the case with a motion pursuant to C.C.P. §2025.420(a) i.e. stopping the deposition process is only authorized by the CCP in a limited situation.

The protection afforded by C.C.P.§2025.420(c)) is unclear and limited, at most, and does not authorize a party deponent to serve objections, other than those expressly authorized, and ignore the duty to attend. . Party deponents may be involved in one of several alternative situations, only one of which appears to be covered:

Deposition procedures differ from other discovery, though a deposition no-show is similar to a failure to respond to written discovery. As illustrated by the recent case of Lego v. Connerstone Building Inspection Service (2001),86 Cal.App.4th 1109 a complete failure to appear does not require the party noticing a deposition to meet and confer over every issue that might arise in the deposition; but, only to contact the opposing side to resolve the scheduling problem. On a deposition "no show", the available procedures do not suggest a meet and confer over each potential issue, a discussion of each category or each document, or a discussion of each potential question. A separate statement would not be possible since there is no formal response to the deposition notice and no specific question and objection to rule upon.

Recent cases also suggests that discovery is not supposed to be a hypertechnical game in which one attempts to thwart legitimate discovery. The serving of boilerplate objections followed by a refusal to appear serves little purpose except to force parties to incur unnecessary expenses and is an abuse of the discovery process. The provisions for objecting to notice appear to force people to make technical objections promptly in advance of the deposition or waive them e.g. time or distance. If seriously and legitimately concerned, the party should meet and confer to resolve the problem and then seek a protective order.

Simply filing an objection pursuant to subsec .420(c) does not stay the deposition and it may not relieve a person of their obligation to comply with a subpoena or notice to appear. If the objection is ultimately found to be valid and within Article 2 and if a party does not appear, §2025.420(c) provides a remedy: the deposition cannot be used against that party. However, that benefit from the objection does not negate the obligation of a deponent to appear pursuant to notice or subpoena. C.C.P.§2025.440(b). To avoid the obligation to appear, a protective order preceded by a meet and confer is required.

DEPOSITIONS --- NOTICE & SUPPORTING AFFIDAVIT
The clear wording of the statutes and the legislative history supports the position that an affidavit is required by CCP 1987.5 for a valid deposition subpoena involving both oral testimony and records production per CCP 2020.510. Normally, a party wouldn't raise the issue. But, when it is important, a careful review of the statutes, the clear wording of the relevant code sections and the legislative history may reveal an invalid subpoena since it was not supported by an affidavit. If it is too late to re-serve a proper subpoena, the discovery is lost.

For non-party depositions an affidavit showing "good cause" is not required by CCP 2020.410 or 2020.510; but CCP1987.5 still requires an affidavit on other matters for a valid subpoena pursuant to CCP2020.510 for a deposition of a non-party requiring both document production and oral testimony. In a recent case involving subpoena of coucments for a hearing the Fourth District Court of Appeal, Division 3, noted at page 17 of the slip opinion that the party's "...privacy concerns are protected by Code of Civil Procedure section 1985's requirement of a supporting affidavit demonstrating good cause for the production of the information described and specificity in the "exact matters or things desired to be produced'...." City of Los Angeles v. Superior Court (2003) [8/27/03, 4th Dist. Div.3]

CCP§1985 requires that a copy of an affidavit be served with a subpoena

CCP§ 1987.5 states that the service of the subpoena is invalid unless the affidavit is served and any evidence obtained in violation of the provision may be excluded. The affidavit provisions of both 1985 and 1987.5 expressly apply to depositions. Prior to 1993 those provisions applied to CCP §2020 depositions of nonparties with the express exception that the subpoena "need not be accompanied by an affidavit or declaration showing good cause for the production…." In 1993, the legislature specifically addressed this issue and exempted a business records only deposition pursuant to §2020.410 [former CCP §2020(d)] from all of the affidavit requirements of 1987.5; however, it did not exempt a records & testimony deposition pursuant to CCP §2020.510. Thus, the most recent legislative act reaffirms the clear wording of the statute that the affidavit is required for the validity of the subpoena when the non-party must appear pursuant to CCP 2020.510.

In 1986 when the new Discovery Act was enacted, former CCP §2020(d) & (e) did not eliminate the affidavit requirement of CCP§§1985 and 1987.5. CCP §1985(b) specifies four items to be included in the affidavit. The legislature of course was aware of these statutory provisions in 1986 when it enacted the subsequent legislation regarding depositions and it addressed that specific requirement. It could have expressly provided that no affidavit was required in either or both sections governing nonparty depositions but did not do so. However, it clearly addressed the issue. It excluded only one of the four items required by CCP §1985 to be covered by the affidavit: the good cause requirement, in both §2020.410 and §2020.510. In 1990 when it considered and amended 1985 it did not change the affidavit requirements for nonparty depositions. From the enactment of the current Discovery Act to 1993 an affidavit, except for the good cause requirement, was expressly required for all non-party depositions requiring document production. Again, in 1993, the legislature addressed the specific issue of the affidavit requirements of 1987.5 in connection with non-party depositions. It excluded the affidavit requirement entirely when an appearance was not required and only business records were sought pursuant to CCP 2020.410. It did not change the requirement with regard to 2020510 when an appearance is required and other records sought. It may have thought that the affidavit is not necessary when only business records are sought from relatively sophisticated deponents. It may have thought the more onerous burden of an appearance justifies a more onerous burden of the affidavit. It may have thought that a 3rd party would move to quash if there was insufficient showing or appear without contesting it if the showing was sufficient. It may not have thought about this issue at all. However, it clearly addressed the issue and treated former section 2020(d) differently from 2020(e).

The legislature did not define "good cause" and "materiality" in this statute. By contrast, in CCP §2036 of the prior discovery law the legislature defined good cause and distinguished it from materiality. Nevertheless, the deletion of a requirement of a good cause showing does not mean necessarily that one need not show materiality. The express deletion of the good cause showing in CCP 2020 may have been intended to exclude the other elements of good cause while still requiring a showing of materiality which is still required by 1985 and 1987.5. Furthermore, there is a third subject that must be addressed in the affidavits: the specified matters to be produced. Perhaps the legislature envisioned a detailed declaration going item by item explaining the materiality of each item sought. The approach of the court in the Calcor case would support that expectation and justification for a declaration in cases where a potentially controversial production, as opposed to routine records only depo, would occur.
Should the legislature revisit this issue, it might determine if the affidavit should be required at all and whether it should differ depending on whether the subpoena is for trial or pretrial deposition or deposition to be used in lieu of trial testimony.

CORPORATE DEPOSITIONS CCP §2025.230
A person taking a deposition of a deponent who is not a natural person need only identify the subject matter with reasonable particularity. The deponent "shall designate and produce" the person most qualified to testify on its behalf. The statute does not provide for objection or refusal to produce on the basis that it cannot find a knowledgeable person or even that it cannot find a person. The deponent has a "duty to make this designation." If it can act at all, it can find someone to testify on its behalf. The selection is up to the deponent but it must designate and produce someone to testify on its behalf to the extent of any information known or reasonably available to the deponent.

The statute contemplates the production of multiple persons to testify since it uses the language "those of its officers [etc] ...to testify ...." It is important for counsel to cooperate to make the corporate deposition work and not to find ways to frustrate the process. A restrictive reading of the statute is not conducive to discovery and insisting that the deposition occur in California may not be the most effective way to conduct the deposition. Counsel should also consider using telephones, possibly combined with video cameras, and videoconferencing.

Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 The opinion suggested the witnesses, who was ordered to return to the deposition, should make a greater effort to be familiar with facts and documents prior to testifying. The appellate court made clear that a "reasonable search" for documents had to be conducted and documents had to be reproduced at deposition: "…the witness or someone in authority is expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held."

OBJECTIONS TO DOCUMENT PRODUCTION AT DEPOSITION

Code of Civil Procedure Section 2025.410 does not require pre-deposition objections to document production based on privilege and other substantive objections but only requires objections as to form and adequacy of notice which includes the "reasonable particularity" of the document request . All of the objections in Article 2 [prior subsections (b)-(f)] deal with notice objections, e.g. time date, place. Section 2025.410 relates to objections to those notice requirements and refers to waivers of "errors and irregularities" in the notice, not to waivers of objections based on privileges. The CCP §2025 procedure is strikingly different from the provisions for written discovery which expressly require separate responses within a much longer time period to each request for discovery and expressly provide that failure to timely object to a particular request based on a particular objection or privilege results in waivers of objections including those based on privileges. Those express requirements and consequences are lacking in the CCP 2025 procedures.

Written discovery, including Requests for Production of Documents, requires written responses within a limited period of time including timely objection based on privilege. It expressly provides for waiver of any objections not timely made including the waiver of any privilege or work product objection. See e.g. CCP §2031.300(a). It provides for prompt motions to resolve any issues raised by objections.

Production of documents at deposition follows a different procedure that does not require a written response or objection and does not provide expressly for any waiver of privilege and work product from a failure to object prior to a deposition. CCP§2025.210 et seq. sets forth the notice requirements for a deposition including production of documents: time, place, distance, service, intent to videotape, notice content, etc. In the case of "errors and irregularities" in the notice from failure to comply with the notice requirements of Article 2, C.C.P. §2025.410(a) requires written objection specifying the error or irregularity. Failure to do so waives objections to such errors or irregularities in the notice. The subsection does not suggest waivers of privilege or other substantive objections from a failure to object to the notice. The subsection is not clear as to the types of objections that are waived if not made but it appears, consistent with the statutory scheme, that they would be limited to matters involving the adequacy of notice or hyper-technical objections: e.g. so vague that a party would not know what is being requested or minor errors such as a typo on the date of a document. It might include burden or overbroad objections such as the subpoena in Calcor Space Facility v. Superior Court(1997) 53 Cal.App.4th 216 at p.222 [facially detailed subpoena in essence asked for all documents on subject and required extensive search and effort to fit into categories]. Although C.C.P.§2025.220(a)(4) provides for noticing production of "materials" to be produced and §2025.280(b) requires production, it does not require formal responses or provide for waiver of privileges or other substantive objections.

If a party objects to the production of documents, CCP §2025.410(b)(11) expressly provides for a protective order motion before, during or after a deposition. Filipoff v. Superior Court (1961) 56 Cal.2d 443 [suspend deposition when production is sought and seek protective order] Cases have recognized the right to refuse to produce documents at the deposition and require the party seeking production to move and obtain court order. Monarch Healthcare v. Superior Court (2000), 78 Cal.App.4th 1282 [3d party can object at time of depo need not make motion to quash; 1987.5 is permissive]. Johnson v. Superior Court (1968) 258 Cal.App.3d 829. (CCP 1987.). Roberts v. Superior Court (1973) 9 Cal.3d 330,342.("There is nothing to require an assertion of the privileged nature of subpoenaed documents prior to a refusal to disclose the documents made in response to the subpoena." Subpoena to plaintiff's psychiatrist.) CCP §2025.480 provides for a motion to compel if a deponent fails to produce a document noticed for production but it requires a showing of good cause. California courts have recognized the alternative procedures available to raise objections to production of documents at depositions. Monarch Healthcare v. Superior Court (2000), 78 Cal.App.4th 1282 [Motion to quash or appearing at depo and objecting to production are alternatives; Motion to quash not required or a prerequisite to raising objections on a motion to compel production]. Slagle v. Superior Court (1989), 211 Cal.App.3d 1309 [Claim re irrelevancy of medical records of defendant overruled; motion may be brought after production date ]

RESOLVING PRIVILEGE & PRIVACY DISPUTES
IN NON-PARTY RECORDS DEPOSITIONS

When documents are sought from a party, the party is aware of the exact nature and contents of the documents at issue and can make and support objections and claims of privacy and privilege. When a third party is deposed in connection with a document production, both sides can elicit facts regarding the subject documents to enable them to make and resolve objections. However, when discovery is sought at a records only deposition from third parties who have no interest in the documents or the objections, it may be difficult for either party or the court to determine whether an objection is proper due to an absence of information. There is also the danger that unexpected or unknown documents, to which an objection might be proper, might be produced inadvertently. [As to inadvertent production of privileged documents see Attorney Client Privilege / Inadvertent Disclosure http://californiadiscovery.findlaw.com/attorney-client.htm#Inadvertant. As to the ethical duty of the lawyer receiving such documents to return notify opposing counsel, desist from use or return them see Discovery Ethics / re inadvertent disclosure of e-data and metadata. http://californiadiscovery.findlaw.com/discovery%20ethics%20&%20e-discovery.html ] See

Under those circumstance the parties may wish to address the problem by stipulation and/or court issued protective order that modifies the normal procedures. Counsel may wish to agree [See C.C.P. §2016.030 (former§2021)]

Such a procedure works to the benefit of all parties and the court and should be considered as a matter of routine whenever the circumstances suggest unknown private or privileged or objectionable information might be inadvertently disclosed. For counsel representing the party whose information is being produced, it provides better representation and protection. For counsel seeking production, it protects against charges of ethical violations and motions to disqualify. For the court, it provides for a meaningful and enlightened meet and confer, for resolution by counsel, and for an informed court consideration and decision in case the issues are not resolved.

DISCOVERY OF ANONYMOUS POSTERS TO INTERNET SITES
See also Privacy, Depositions and Discovery of Electronic Data case outlines and AOL subpoena policy.

Anonymous comments are posted by the author in state A, using an ISP in state B, to post to a website server in C, maintained by a company in D, concerning a subject in E, which is published everywhere. The subject of the comments does not like them and wants to stop them. It files a lawsuit in California and immediately seeks the name of the author. At least one appellate court in California has recognized a first amendment right to speak anonymously based upon free speech and privacy rights. Rancho Publication v. Superior Court (1999), 68 Cal.App.4th 1538 [newspaper standing to assert rights of anonymous publishers of political ads. See Privacy outline re possible duty to do so]. A federal district court in Washington has taken the same position. Doe v. 2THEMART.COM (W.D.WASH.2001), 140 F.Supp2d 1088

Although anonymous posters to internet sites may have rights to free speech or anonymity [anti-slaap suits, 1st amendment, Constitutional Right to Privacy] and may have some objections to jurisdiction or venue, once a law suit is filed and discovery commenced any rights may not be asserted due to lack of notice. The only known notice requirement is that provided pursuant to CCP §§2020, 2025 as interpreted in California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16. CCP §2025.210 (b) places a hold on depositions until 20 days after service of a summons or appearance of a defendant. The Shellfish case held that notice of the records deposition must be given to at least one defendant. The court noted at page 23 that notice to some "adverse" party was the "minimum protection" required to guard against abuses. The code allows for "earlier" service pursuant to court order but does not dispense with notice. However, whoever may be named as a defendant may not have a duty or interest in protecting the identity or rights of an anonymous poster unless such duty is imposed by the courts. California Shellfish suggests notice to an adverse party i.e. one likely to resist and assert rights. Rancho Publication confirms standing to assert privacy rights of absent third parties. Privacy cases suggest a duty to assert such rights on behalf of absent third parties. Valley Bank of Nevada v. Superior Court (1975), 15 Cal.3d 652 at p.658 ["...we conclude that before confidential customer information may be disclosed in the course of civil discovery proceedings, the bank must take reasonable steps to notify its customer of the pendency and nature of the proceedings and to afford the customer a fair opportunity to assert his interests by objecting to disclosure, by seeking an appropriate protective order, or by instituting other legal proceedings to limit the scope or nature of the matters sought to be discovered."] Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516,525. Binder v. Superior Court (1987) 196 Cal.App.3d 893 at p.899. Olympic Club v. Superior Court (1991) 229 Cal.App.3d 358, 361. Of course, failure to perform that duty may give rise to liability. Cutter v. Brownbridge (1986) 183 Cal.App.3d 836. California privacy law would suggest an ISP has a duty to notify its customers of the potential intrusion into their privacy. In Doe v. 2THEMART.COM the ISP gave notice by email and the anonymous poster to a message board made an anonymous motion to quash which was granted on first amendment grounds

Despite extensive coverage, the consumer notice provisions of CCP §1985.3 do not appear to apply to records of ISP's, portals, bulletin boards or web sites. Thus, the consumer of such services does not get notice that private records and information may be discovered and an opportunity to object to production of all or some of the information sought. In addition, giving actual notice to anonymous persons is problematic though not impossible. The AOL policy provides some minimal protection comparable to the 1985.3 notice by delaying production for 2 weeks while it provides members with notice and an opportunity to object. The AOL policy also requires production by the party seeking identity of members of some documentation to justify the production. However, it cannot provide the protection of staying production pending court resolution of any objections.

Unlike prior law and trial subpoena, the current discovery act does not require an affidavit showing the relevancy of the information sought or good cause for its production. CCP §§ 2020.410(c), 1987.5, 1985. The ISP or other witness merely receives a legal document requiring production of numerous documents that may not be discoverable when scrutinized by an adverse party or the persons whose privacy may be invaded. Much greater protection is provided on a motion to perpetuate testimony.

DEPOSITIONS ----VIDEOTAPING
Do It Yourself videotaped depositions

VIDEO TAPING OF DEPOSITIONS NORMALLY DOES NOT REQUIRE AN INDEPENDENT OPERATOR. SEE CCP §2025.340
If you are video recording an expert or a treating or consulting physician and you want to reserve the right to use the video at trial, even though the deponent is available, then you have to use an operator who meets certain qualifications: authorized to administer an oath, not financially interested, not a relative or employee of the attorney. See C.C.P. §§2025.220(a)(6), 2025.340(c), 2025.620(d), 2025.340(m)
Otherwise, for other deponents and when those provisions don't apply, the operator may be an employee of the attorney and need only "be competent to set up, operate and monitor the equipment" in accord with the statute. See C.C.P.§2025.340(b). Don't forget to notice the videotaping pursuant to C.C.P.§2025.220(a)(5).
Nothing prohibits the attorney from operating the video. Nothing prohibits the use and admissibility of such videos so long as the normal requirements are met.
Video taping is sometimes an effective means of controlling abusive conduct and obstruction of the deposition process even if it is never used as evidence. If it doesn't work to control abuses, it can be used to justify the appointment of a referee at your opponent's expense. The savings of one motion should pay for the equipment. It can allow mock juries and persons not present at the deposition to evaluate the witness. A picture is worth.... Digital video cameras have improved in quality and been reduced in cost. OF COURSE, TO ASSURE HIGH QUALITY AND PROPER EDITING YOU MAY WANT A PROFESSIONAL. See Green v. G.T.E.California Inc.(1994), 29 Cal.App.4th 407 for tips on how not to do it.

Legislation to permit video recording by a person who is not authorized to adminsister oaths was passed by large majorities in the Assembly and Senate but vetoed by Governor Davis.

WHAT IS YOUR OPINION OR EXPERIENCE OR ADVICE ? Email it to us and we can add it to the practice tips.

GENERAL OBJECTIONS: a legal and ethical problem
One of the most common and flagrant abuses of discovery is the making of boilerplate, general objections to written discovery. Frequently, such objections are made without any thought to their applicability to any of the requested discovery and without any knowledge of the material or information being sought. Such a tactic is contrary to law and to the purpose and intent of the discovery process. Discovery is supposed to be self-executing. Parties requesting relevant non-privielged information are supposed to receive it in 30 days. A common tactic is to disregard the legal obligation to respond properly in accord with the law, serve boilerplate objections and force the propounder of discovery to negotiate for partial answers. If partial answers are provided, they are often equivocal and qualified so as to be of little value or meaning. The end result is increased delay, expense and meaningless responses.

There are some occassions when a party may have an objection that goes to the entire set of discovery and is properly made, such as when the time for propounding discovery has passed the cutoff. The better remedy in that case is a prompt motion for a protective order and compensatory sanctions after a good faith meet and confer. Generally, boilerplate general objections are sanctionable in California per Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 and may result in a waivers of privileges in the 9th Circuit per Burlington Northern & Santa Fe Ry Co. v. U.S. Dist. Court 408 F.3d 1142,, 2005 WL 1175922 (9th Cir.2005) [trial court affirmed in holding boilerplate objection without identification of documents is not the proper assertion of a privilege.] See also Bob Barker Company, Inc.. v. Ferguson Safety Products, Inc, 2006 WL 648674 (N.D.Ca.2006). [The trial court noted the failure to respond to a document request in accord with the discovery rules which necessitated granting the motion for further responses: "responses are too ambiguous to ... determine the extent to which [responding party] may be withholding responsive documents based on its other objections rather than asserting that no responsive documents exist. While ... responses were not "boilerplate" in the sense of containing only generalized objections of a sort that might be found in any case, Ferguson did repeat the same long paragraph of objections and explanations in all of its responses, regardless of the applicability of that recitation to the particular request."]

General objections and other equivocal response to discovery are not authorized. The current statute does not condone such general objections and provides for sanctions on motions unless the objector shows "substantial justification". The C.C.P. requires that a party respond to each request and if there are objections that they be made to the particular request, with regard to particular information and by identifying particular matter to which the objection applies. For example, a response to document requests requires a party to "respond separately to each item or category" in one of three manners including "an objection to the particular demand". "Each... objection in the response shall bear the same number... as the corresponding item... in the demand." C.C.P. §2031.210. If there is objection to producing "an item", the response must "identify with particularity any document...to which an objection is being made" and "set forth clearly the extent of, and the specific ground for, the objection". C.C.P. §2031.240(b). C.C.P. §2031.250(c). The current statute does not permit incorporation of any objections by reference. Similarly, C.C.P.§2030.210(a) requires a response "separately to each interrogatory". C.C.P.§2030.220(a) provides "each answer shall be as complete and straightforward as the information reasonably available ...permits." A party can object to part and answer part but not qualify everything so that the other party cannot rely on the response. C.C.P.§ 2030.300(a)(3) recognizes that objections that are "too general" are improper. By analogy, C.C.P.§2030.060(d) prohibits prefaces or instructions suggesting that similar material should not be permitted in responses. C.C.P. §2033 follows a similar pattern as to admissions.

General objections, usually pure boilerplate, have been condemned by appellate courts as "nuisance objections" and, even when involving important privileges, have necessitated monetary sanctions to compensate for the time wasted in eliminating them. See Standon v. Superior Court(1990), 225 Cal.App.3d 898 [nuissance objections]. Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 [sanctions for general objections even thought attorney-client privilege preserved]. See also United Farm Workers of America v. Superior Court (1975) 47 Cal.App.3d 334, 347 (Abuse of discretion to strike entire set of interrogatories even though "many. . . appear to have no relevancy and appear intended only to harass."); Wooldridge v. Mounts (1962) 199 Cal.App.2d 620.[Set stricken on eve of trial.]; Cembrook v. Superior Court (1961) 56 Cal.2d 423, 430. [Objections to entire set of requests for admissions indicates a lack of good faith.]

When challenged in court, general objections to an entire set should be stricken and sanctions awarded. Of course the proponent of any objections has the burden of proof to establish each and every one. The failure to do so in each instance should result in the objection being overrruled and sanctions awarded unless substantial justification for such objection is shown. Absent a showing of substantial justification for such objections, a party forced to come to court to eliminate them is entitled to compensation by way of monetary sanctions. Recent cases have lent support to courts imposing punitive sanctions in appropriate cases to control intentional abuses of discovery.

The abuse of general obections goes to the heart of the discovery process raising ethical questions of lawyers who employ such tactics that are contrary to law and cause such harm. Lawyers must be encouraged to comply with the law and courts must issue fully compensatory sanctions to those who are victims of such abuses. Otherwise, the abuses will continue. The fault is not with the rules but with those who violate and fail to enforce them.

The most common error in document production
CCP Section 2031.210 details how a party is to respond to a request for documents but many lawyers either don't read it or don't follow it as to all particulars set forth. The result? Monetary sanctions and an order to respond in accord with the CCP + delay + wasted time and money for all concerned. Such was the case in
Bob Barker Company, Inc.. v. Ferguson Safety Products, Inc, 2006 WL 648674 (N.D.Ca.2006). The trial court noted the failure to respond to a document request in accord with the discovery rules necessitated granting the motion for further responses: "responses are too ambiguous to ... determine the extent to which [responding party] may be withholding responsive documents based on its other objections rather than asserting that no responsive documents exist. While ... responses were not "boilerplate" in the sense of containing only generalized objections of a sort that might be found in any case, Ferguson did repeat the same long paragraph of objections and explanations in all of its responses, regardless of the applicability of that recitation to the particular request."

Note also ! There is no provision for "general objections" in 2031 or anywhere else in the Discovery Act. C.C.P. Section 2031 expressly requires the party to "respond separately to each item or category...." The result? Striking general objections and another award of monetary sanctions. Remember, if you object you have the burden of proof on each and every objection. So, when you insert your boilerplate, nuissance objections, be prepared to supply the facts to sustain each objection or to pay sanctions for abuse of the discovery process by frivolous objection.

COST SHIFTING
In approaching cost shifting and other electronic discovery issues it is critical that lawyers educate themselves on the technology and provide meaningful factual and expert declarations to educate the court. When necessary, courts should insist that they do so. Generalities and argument are not sufficient by themselves. Generic, conclusionary or superficial expert declarations will not be persuasive. The facts, the technology, the costs of particular aspects of discovery in the context of the case at bar must be considered in evaluating all relevant factors, including those articulated in recent cases of Rowe and Zubulake, infra., in order to properly resolve the discovery issue before the court.

Cost shifting has long been recognized as one of the tools available to courts for regulating and facilitating discovery. It has become more important in the context of electronic discovery where the cost of production of e-mail between a few key persons may run into hundreds of thousands of dollars. Like other jurisdictions, California authorizes cost shifting as one of the tools available to a trial court to regulate and facilitate the discovery process. In San Diego Unified Port Dist. v. Douglas E. Barnhart, Inc. (2002) 95 Cal.App.4th 1400, 1404 the California Court of Appeal confirmed the power of trial courts to reallocate or shift the costs of discovery though it rejected the allocation in that case:

In addition to the statutory authorities cited, protective order sections provide express authority for cost shifting:
California Code of Civil Procedure Section 2019(b):

California Code of Civil Procedures Section 2031.281(b) provides for cost shifting in the context of computer or electronic data discovery:

The California Supreme Court recognized in Pacific Tel. & Tel. Co. v. Superior Court (1970), 2 Cal.3d 161, fn.15 a slightly different approach to reach the same result as applying a cost/benfit or cost shifting analysis by recognizing that the concept of discovery relevancy expands and contracts depending upon the nature of the case and the expenses of discovery:

Courts have many alternative remedies available depending on the issues and facts presented. It must be emphasized that as a practical matter the quality of the ultimate decision will depend on the quality of the advocacy: garbage in, garbage out. Some judges may be more proactive and insist on additional facts or briefing but the norm is likely to be a decision based on what is presented by counsel. If the parties simply present an "all or nothing alternative" to the court, they are likely to receive an "all or nothing" decision. If there are no declarations providing meaningful facts or expert analysis, what is left? If the alternatives consist of general rules applied by courts in the past, the court may pick from general rules which may or may not be appropriate to the case or issues before the court.

General rules include: (1) the producing party bears the expense of production based on the rationale that it chose the form and manner of storage; (2) the producing party bears the cost of review for privilege, relevancy, and response to the request by category; (3) the requesting party bears the cost of copying, handling and review. In addition, there are general rules of discovery that allow for court discretion not the least of which is that courts are always called upon to balance the need for discovery against the burden in a cost / benefit analysis. Normally the parties and the court will not have one analysis to make on a given motion; but many, with results varying depending on the facts and analysis of each request: some granted, some denied, granted on condition, granted as modified, denied without prejudice to rephrasing with grater specificity, etc. In essence, the courts have broad discretion and they exercise it on a daily basis. It need not be an all or nothing rule as to who pays for discovery. Sometimes, considering all relevant factors it is fair for one side or the other to pay for some items or the cost may be allocated or apportioned. Sometimes, the courts may proceed more cautiously to gather evidence as to the value and cost of the discovery by employing limited discovery or sampling. See McPeek v. Ashcroft 202 F.R.D. 31 (D.D.C. 2001) [the more likely to yield dirrectly relevant information the more the producer should pay; marginal value of search] See also the follow up decision in McPeek 2002WL 75780 where counsel reached opposite conclusion on the value of the sample but the court denied further discovery. Cf. Zublake III (S.D.N.Y., 7/24/03) where, based on sampling results from 5 tapes, the court ordered production from all backup tapes but allocated restoration costs 75% producer and 25% requester with producer paying all other costs e.g. review for relevance and privilege.

The emergence of electronic discovery as a norm and the potential costs involved have added importance to court control and analysis of the discovery process including the issues regarding cost shifting. General rules work fine when there are a hundred paper documents in a file. But when there are several hundred thousand documents or millions of documents in electronic form, allocated to clusters of bits and bytes all over a hard drive, speadsheets, meta data that may be critical or of interest, data that is constantly changing, proprietary software that is required to read the documents, privileged and non-responsive documents intermingled, etc alternative approaches may be required.

Several recent cases have gone beyond the issue of whether costs can be shifted or apportioned and have wrestled with the issues of when, based on what factors, and to what extent production costs should be shifted from the producing party to the requesting party. See Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [party seeking discovery paid for "neutral" court expert to conduct forensic computer examination]. Most are federal district court cases and though not controlling provide ideas and guidance for trial courts confronted with similar issues. Murphy Oil USA v. Fluor Daniel Inc. (2/19/02, E.D. La.) 2002 WL 246439. Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct established protocol: mirror image by neutral expert at requesting party's expense; producing party to print and review all documents and submit privilege log ]. Rowe Entertainment v. The William Morris Agency (S.D.N.Y. 2002), 205 F.R.D. Zubulake v. UBS Warburg (S.D.N.Y. May 2003). Rowe and Zubulake followed by McPeek are the must read cases and no analysis of them is offered here.

Cost shifting is not an issue on every discovery request and the issue must be raised by the responding party by objection, by protective order or possibly by opposition to a motion to compel production. Presumably, the responding party raising the issue would have the initial burden of proof to show that cost shifting should be considered and implemented. Zublake recognizes the presumption that the producer normally pays for the costs of production. Rowe and Zubulake attempt to articulate the factors that should be considerd once the issue of cost shifting is raised. Many lawyers have reacted to Zubulake as if it were a rejection of Rowe and of cost shifting rather than a refinement. However, it is important to place Zubulake and the other cases in the proper prospective. What is the holding as to what specific facts? On what court is the decision binding? Assuming the case is binding or persuasive, is it possible to distinguish the facts, technology, costs, and the application of the seven factors of Zubulake or the eight factors of Rowe from the relevant factors in your case?

It is also important in considering the dictum and analysis of the Zubulake I and III opinions to look at the similarities with Rowe and other cases and the more important teachings of Zubulake. Counsel should not extract a sentence from the detailed opinions in order to find a rigid principle to apply without regard to the broader principles or the specific holding of the case. Zubulake and Rowe both follow the general rule set forth in Rowe that is a fundamental discovery tenet common to most jurisdictions:

Worth noting is that the estimated costs in Rowe were substantially higher than those in Zubulake but the high cost was not the only or even a determining factor. Cf. Medtronic Sofamor Danek, Inc. v. Michelson, (W.D.Tenn., 5/13/03). In Zubulake it appeared that there was preliminary discovery and evidence presented to support the merits of the case and substantial damages, to show less than diligent search and production to date, to establish a strong likelihood that evidence would be discovered on the backup tapes and that alternatives had not been productive. A smoking gun was presented and plaintiff found more e-mails than defendant. But this is getting ahead of the decision. Based on what the parties presented to the court, discovery was ordered as to some matters where cost was not significant and the court employed a sampling approach to 5 backup tapes as a preliminary step on the costly aspects of discovery. See also the McPeek cases re sampling. Based on that sampling the court ordered the requesting party to pay 25% of restoration costs of the remaining backup tapes and the producing party to pay all other production costs.

What is important for counsel to note from the decisions is the need for counsel to understand and educate the court on the facts of the case and especially the technology, costs, alternatives, and all other relevant factors. Normally, this will require meaningful declarations from experts. No rigid black letter rules will be applicable to make life easy for lawyers or judges. It should be emphasized that all factors are not equal and that this is not a mathematical exercise but a qualitative analysis. It is not critical whether a court calls the analysis a seven factor, an eight factor, or a two factor cost/benefit analysis so long as all relevant factors are considered. This issue is not a choice between bankrupting a defendant with an onerous discovery request or depriving a plaintiff of due process and discovery to present her case. It is a search for a practical solution and for justice for all parties.

Counsel should be wary of one common trap: conceding discoverability of everything and leaping to the cost shifting issue. Before litigating such issues, more attention and efforts to resolve disputes should be focused on preliminary issues such as the following:

Sep	OCT	Jun
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2009	2010	2012

Deposition	Interrogatory	Document	Admission	Experts	Med.Exam	Sanctions	Meet & Confer	Disc.Cutoff	Referee
Basic Disc	E-discovery	Atty.- Client	Work Product	Privacy	Phys-Patient	Med.Qual.Rev	Reporter Priv	Official Info	Tax Return

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