Is It Time to Appoint a Discovery Referee?

Referee Time Out.jpgLast November I received the following e-mail:

Since courts are so overwhelmed and setting dates for hearing is now running 6 months or longer, how does one do motions to compel further responses to interrogatories in a meaningful way? I booked the first available date with the court, but it is not until next June and I need the responses in order to know what documents to request. Any ideas? 

It is unfortunate that the California budget crisis has so imploded civil litigation in our courts. Despite the fact that discovery is the heart and soul or your case and you are entitled to compliance with your discovery requests; law and motion departments typically give discovery motions the lowest priority on their calendar. So, what do you do?

One answer is to have a Discovery Referee appointed. Parties can either stipulate to a Discovery Referee pursuant to C.C.P. §638 (pdf) or make a motion pursuant to C.C.P. §639 (pdf). The reference to a Discovery Referee can also be limited in scope to individual issues (i.e., the motion pending, sitting in all depositions, etc.) or for all discovery purposes in the action. The Judicial Council form for the Appointment of a Discovery Referee and the Order appointing the Discovery Referee are easy to use and cost effective.

Below are the legal authorities and the limitations of a court appointed discovery Referee pursuant to C.C.P. §639 (pdf):

I. AUTHORITY

The court has the power to appoint a Discovery Referee pursuant to C.C.P. §639(a)(5) (pdf) which reads as follows:

(a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a Referee in the following cases pursuant to the provisions of subdivision (b) of Section 640 (pdf):

(5) When the court in any pending action determines that it is necessary for 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 a recommendation thereon.

II. QUALIFICATIONS AND REQUIREMENTS OF REFEREE

A. Residency in the county is no longer required. [C.C.P. § 640 (pdf), CRC 3.923 (pdf)]

B. The Referee's certification that he or she is aware of and will comply with applicable provisions of Canon 6 of the Code of Judicial Ethics and with the California Rules of Court. The certification must be filed with the court. [CRC 3.921 (pdf), CRC 3.924(a)(1),(2) (pdf)]

C. In addition to any other disclosure required by law, no later than five days prior to the deadline for parties to file a motion for disqualification of the Referee under C.C.P. §170.6 (pdf) or, if the Referee is not aware of his or her appointment or of a matter subject to disclosure at that time, as soon as practicable thereafter, a Referee must disclose to the parties:  

(1) Any matter subject to disclosure under subdivisions (D)(2)(f) and (D)(2)(g) of Canon 6 of the Code of Judicial Ethics; and

(2) Any significant personal or professional relationship the Referee has or has had with a party, attorney, or law firm in the instant case, including the number and nature of any other proceedings in the past 24 months in which the Referee has been privately compensated by a party, attorney, law firm, or insurance company in the instant case for any services, including, but not limited to, service as an attorney, expert witness, or consultant or as a judge, Referee, arbitrator, mediator, settlement facilitator, or other alternative dispute resolution neutral. CRC 3.924 (pdf)

III. DESIGNATION OF REFEREE

Code of Civil Procedure §640 (pdf) lists the procedure that the court is to use in selecting a Discovery Referee if the parties do not stipulate:

A. The court shall appoint as Referee or Referees the person or persons, not exceeding three, agreed upon by the parties.

B. If the parties do not agree on the selection of the Referee or Referees, each party shall submit to the court up to three nominees for appointment as Referee and the court shall appoint one or more Referees, not exceeding three, from among the nominees against whom there is no legal objection. If no nominations are received from any of the parties, the court shall appoint one or more Referees, not exceeding three, against whom there is no legal objection, or the court may appoint a court commissioner of the county where the cause is pending as a Referee.

IV.  ORDER APPOINTING REFEREE

The order appointing a discovery Referee must be in writing [C.C.P. §639(d) (pdf)] and shall include the following:

A. The order must specify that the Referee be appointed pursuant to C.C.P. §639(a)(5). [CRC 3.922(c) (pdf)]

B. The name, business address, and telephone number of the Referee [C.C.P. §639(d)(4) (pdf), CRC 3.922(b) (pdf)]

C. If the Referee is a member of the State Bar, the order must include the Referee's State Bar number. [CRC 3.922(b) (pdf)]

D. A statement as to the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case. [C.C.P. §639(d)(2) (pdf)CRC 3.922(c)(2) (pdf)]

E. The subject matter or matters included in the reference. [C.C.P. §639(d)(3) (pdf), CRC 3.922(d)(1) (pdf)]

F. Whether the Referee is being appointed for all discovery purposes or only for limited purposes. [CRC 3.922(d)(2) (pdf)]

G. The Referee is authorized to hear and determine discovery motions and disputes relevant to discovery and is further authorized to set the date, time and place for all hearings determined by the Referee to be necessary; direct the issuance of subpoenas; preside over hearings, take evidence; and rule on objections, motions, and other requests made during the course of the hearing. [CRC 3.922(e)(1) (pdf)]

H. The maximum hourly rate the Referee may charge and, at the request of any party, the maximum number of hours for which the Referee may charge. [CRC 3.922(f)(1) (pdf)]

I. Include a finding that 

(1) No party has established an economic inability to pay a pro rate share of the referee's fees; or

(2) One or more parties has established an economic inability to pay a pro rata share of the referee's and another party has agreed voluntarily to pay that additional share of the referee's fees; and 

(3) When the issue of economic hardship is raised before the referee begins performing services the court must determine a fair and reasonable apportionment of reference costs.  The court may modify its apportionment order and may consider a recommendation by the referee as a factor in determining any modification.  

V. POWERS OF THE REFEREE

The powers of a discovery Referee are limited to those granted by statutory authority and cannot be extended by a court order.

A. Discovery Matters California Rule of Court Rule 3.922(e) (pdf) grants the discovery Referee authority to set the date, time, and place for all hearings determined by the Referee to be necessary, to direct the issuance of subpoenas, to preside over hearings, to take evidence and to rule on objections, motions, and other requests made during the course of the hearing.

B. Case Management Conferences In Lu v. Superior Court (1997) 55 CA4th 1264, 1269 (pdf) the court of appeal stated that the Referee doesn’t just assist the trial judge in resolving discovery disputes but the Referee can “work with the attorneys in developing a discovery plan, scheduling discovery in the most efficient, rational and least oppressive manner.”

C. Law and Motion Matters other then Discovery The superior court has no power to assign matters to a Referee for decision without explicit statutory authorization.” Aetna Life Insurance Co. v. Superior Court (1986) 182 CA3d 431, 435-436 (pdf). “Hearing, considering and deciding dispositive motions is not one of the special references authorized by C.C.P. Section 639 which the court may make without consent.” Jovine v. FHP, Inc. (1998) 64 CA4th 1506,1523 (pdf). An assignment of a Referee for a purpose other than one listed in Section 639 is an excess of the court’s jurisdiction and, therefore, voidable. Jovine, supra at 1531-1532.

D. Mediation CRC 3.920 (pdf) states, “A court must not use the reference procedure under Code of Civil Procedure Section 639 to appoint a person to conduct a mediation.” The Fourth District Court of Appeals in Jeld-Wen v. Superior Court (2007) 146 Cal. App. 4th 536 (pdf) ruled that the trial court lacked authority to order parties in a complex civil action to attend and pay for private mediation because such an order conflicted with the statutory scheme pertaining to mediation as set forth in the Civil Action Mediation Program, C.C.P. Section 1775 (pdf) et seq., which emphasized the voluntary nature of mediation.

E. Mandatory Settlement Conferences According to the comment section in CRC 3.920 (pdf) a court can appoint a settlement Referee pursuant to conduct a mandatory settlement conference in a complex case, but the MSC must be held at the courthouse, supervised by the court and at the expense of the county. See Raygoza v. Betteravia Farms (1987) 193 Cal. App. 3d 1592,1595 (pdf)  Also, there is no statutory provision allowing the court to order payment of fees for a settlement Referee. C.C.P. §645.1.pdf titled "Payment of Referees’ Fees" limits the court’s authority to order payment to those Referees appointed pursuant to C.C.P. §639 (pdf).

VI. DISCOVERY REFEREE’S REPORT

A. Recommendations Due C.C.P. 643(a) and (c) (pdf) require the Referee’s to file with the court and serve on the parties a written report within 20 days after completion of the hearing. The report shall include a recommendation on the following:

1. The merits of the any disputed issue;

2. A statement of the total hours spent and the total fees charged by the Referee; and

3. Allocation of payment of the Referee fees. 

Remember, the referee's report is advisory and not determinative.  [C.C.P. Section 644 (pdf)

B. Objections Anyparty may file an objection to the Referee’s report, or within another time as the court may direct. The objection shall be served on the Referee and all other parties. Responses to the objections shall be filed with the court and served on the Referee within 10 days after the objection is served. [C.C.P. §643(c) (pdf)]

C. Review by Court C.C.P. §643(c) (pdf) states that 

 [t]he court shall review any objections to the report and any responses submitted to those objections and shall thereafter enter appropriate orders. Nothing in this section is intended to deprive the court of its power to change the terms of the Referee’s recommendations, and this overriding power may be exercised at any time, either on the motion of any party for good cause shown or on the court’s own motion.”  

"The trial court must independently consider the Referee’s findings before action upon the recommendations."  Rockwell International Corp. v. Superior Court (1994) 26 CA4th 1255, 1269-1270 (pdf)  A hearing is not required as a matter of law. The review may be donein whatever manner the trial court deems appropriate."  Marathon National Bank v. Superior Court (1993) 19 CA4th 1256, 1258.pdf. "Even though the trial court must independently consider the Referee’s findings before acting, the Referee’s recommendations are entitled to great weight."  Estate of Beard (1999) 71 Cal. App. 4th 753, 777 (pdf).

I don’t make the recommendation to have a Discovery Referee appointed lightly. Having a Discovery Referee can cost the parties thousands if not tens of thousands of dollars. However, if you do not get the discovery you are entitled that would enable you to evaluate and prepare your case for mediation, a motion for summary judgment or for trial, you are doing your client a disservice. Also, resolving discovery disputes tends to resolve the animosity in the case. With the animosity gone, the parties can have effective settlement negotiations. Finally, Discovery Referee fees can be recovered in your Memorandum of Costs if you are the prevailing party.

 

 

 

Obtaining Review of Discovery Rulings

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Have you ever had a judge give you a ruling in discovery that was so absolutely wrong that you knew you had to fight it? Yet, everyone you talk to tells you that it is almost impossible to get a writ in discovery so you just live with the ruling. Appellate Lawyer Jerry Clausen from San Francisco wrote a great article in Plaintiff Magazine titled "Obtaining Review of Discovery Rulings."   Here it is for your enjoyment.

 

Obtaining appellate review of a discovery ruling can be a daunting task with an unlikely prospect for success.  Rarely are discovery orders themselves directly appealable.  Furthermore by their nature they are particularly poor candidates for effective review on an appeal from an adverse judgment entered months or even years later.  As a result, commonly the only chance for correcting an erroneous discovery order is by writ of mandamus or prohibition.  Yet the judiciary, sensitive to the pretrial process that can result from injudicious use of prerogative writs to review discovery disputes, has long held to a policy of restricting the use of these writs to review discovery rulings.

Nevertheless, adverse discovery rulings do of course occur, and sometimes they are important enough--either to the litigation itself or to the personal, privacy, or commercial interests of the client--to justify an effort to obtain appellate review.  In that event the litigant needs to know what options may be available and how to maximize his or her chances of success.  

Inadequacy of Review of Discovery Rulings on Appeal from Final Judgment

In California, the right to appeal is wholly statutory.  (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 2, pp. 61-62.)  In a few situations, a discovery ruling may meet the requirements of a statute providing a right to direct appeal.  Typically these involve the imposition of sanctions for discovery abuse.  For example, where an action is dismissed in its entirety (see Code Civ. Proc., § 2023.030, subd. (d)(3)) or a default judgment is entered (see id., subd.(d)(4)), it will of course likely be appealable as a final judgment.  (Id., § 904.1 (pdf), subd. (a)(1).)  Also, an order imposing monentary sanctions over $5000 against either a party or the attorney for a party is directly appealable.  (Id., subd. (a)(12);  Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390, 401 (pdf))

Most discovery orders, however, are not directly appealable because no statute makes them so. Like other interlocutory rulings they may be reviewed as a matter of right upon appeal from the final judgment. But for a number of reasons delaying review of a discovery ruling until an appeal from the final judgment is especially ineffective. (See Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185, fn. 4 (pdf); Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169-170 (pdf).) For one thing, in many discovery situations delayed review provides a wholly inadequate remedy. For example, if discovery is erroneously granted, it may be pointless to ask an appellate court to undo a disclosure that was compelled months or even years earlier. If, on the other hand, discovery is erroneously denied, it may be impossible to show that undisclosed information, had it been it been produced and admitted at trial, would have made a judgment in favor of the aggrieved party more likely—and hence impossible to show that the error was prejudicial.

For another thing, delayed review can result in irreparable injury. Where, for instance, an improper order grants discovery over a privilege objection, it will probably be impossible to restore the aggrieved party to the status quo ante once that information has been divulged.

The rationale for delaying review of discovery rulings until appeal from the final judgment rather than permitting direct appeal of them is twofold. First, it prevents the disruption and delay that would be caused by piecemeal review of trial court rulings. Second, it reduces the burden on the appellate courts, since many (if not most) discovery rulings will be mooted because the case settles, because the aggrieved party prevails on the merits, or because the discovery ruling is later “corrected” in the trial court (such as where matter erroneously ordered disgorged during discovery is subsequently excluded from evidence at trial).

Special Criteria for Writ Review of Discovery Orders

The inadequacy of review of discovery orders on direct appeal from a final judgment may make such orders seem like apt candidates for review by extraordinary writ. Irreparable injury and an inadequate remedy at law are, after all, two of the primary requisites for writ review. (Code Civ. Proc., §§ 1086 (pdf), 1105 (pdf); Roberts v. Superior Court (1973) 9 Cal.3d 330, 335-336 (pdf).) Yet despite the acknowledged inadequacies of review of upon appeal from a final judgment, the California Supreme Court has made it clear that the prerogative writs should be used sparingly as a means of reviewing such orders. (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185, fn. 4 (pdf); see also Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169-170 (pdf).)

In fact, the Supreme Court has specified three requirements for granting writ review of discovery orders: “[T]he prerogative writs should only be used in discovery matters to review questions of first impression that are of general importance to the trial courts and to the profession, and where general guidelines can be laid down for future cases.” (Oceanside, supra, 58 Cal.2d at pp. 185-186, fn. 4.)

To comprehend the significance of the restrictions imposed by Oceanside on writ review in discovery cases, consider the factors generally to be considered in determining the propriety of a writ relief in ordinary, nondiscovery cases:

• the issue tendered in the writ petition is of widespread interest or presents a significant and novel constitutional issue;

• the trial court’s order deprived petitioner of an opportunity to present a substantial portion of his cause of action;

• conflicting trial court interpretations of the law require a resolution of the conflict;

• the trial court’s order is both clearly erroneous as a matter of law and substantially prejudices petitioner’s case;

• the party seeking the writ lacks an adequate means, such as direct appeal, by which to attain relief; and

• the petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal.”

(Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273-1274 (pdf), cits. omitted.)

One difference between these two formulations is that, while not all of the factors listed in Omaha Indemnity need be present for a writ to issue (id., 209 Cal.App.3d at p. 1274 [“extent to which these criteria apply depends on facts and circumstances of case”]), the same is not true under Oceanside: for a writ to issue under Oceanside, the case must raise a question that is (a) one of first impression and (b) one of general importance to the bench and bar and (c) one as to which general guidelines can be laid down for future cases.

But perhaps the most notable difference between the two standards is the impact of a clearly erroneous trial court ruling: while, in the ordinary case, an erroneous ruling is a factor militating in favor of writ review under Omaha Indemnity, it does not necessarily support writ review of discovery rulings under Oceanside. The Supreme Court expressly acknowledged as much when it cautioned that the fact that “prerogative writs have been frequently used to review interim orders in discovery cases . . . does not mean that these discretionary writs will or should issue as of course in all cases where this court may be of the opinion that the interim order of the trial court was erroneous.” (Oceanside, supra, 58 Cal.2d at p. 185, fn. 4.)

In fact, a clearly erroneous discovery order may actually work against a litigant seeking review by writ because it is squarely at odds with Oceanside’s requirement that the challenged ruling present a question of first impression. (See id., at pp. 185-186, fn. 4.)

Consider alternatives to a writ petition.

About nine out of every ten writ petitions are summarily denied, and although separate statistics are not available, the rate of summary denial of discovery writs is undoubtedly even higher. It therefore behooves a litigant to take every available measure to decrease the odds of a summary denial.

One sure way to avoid summary denial of a writ petition is not to file one in the first place. Because a discovery writ’s chances are so slight to begin with, counsel should first consider whether a more favorable alternative exists for overcoming or at least mitigating an adverse discovery ruling.

In rare cases, one alternative to a writ petition may be a direct appeal. As previously noted, most discovery rulings are not directly appealable, and delayed review after an appeal from a final judgment is often inadequate. But it may be possible to accelerate review by disobeying the discovery order and appealing from an adverse outcome imposed as a sanction for disobedience, such as a dismissal, an adverse judgment, or a monetary fine. (See above.) Such a tactic is obviously extreme and will be justified only in rare circumstances. Still, it may warranted where, for example, the ultimate effect of the discovery will be to effectively gut the party’s case entirely or where it may be the lesser of two evils for a client who has been ordered to disclose valuable or sensitive information that is more important to him or her than outcome of the lawsuit. It does have the undeniable advantage of guaranteeing immediate and meaningful appellate review.

In the more common situation, where direct appeal is not an option, most trial lawyers will do the obvious—try to skin the cat in a different way. For example, in some cases a litigant denied discovery from his or her opponent may be able to obtain the information by some other means—such as by consulting experts or other lawyers who have been involved in similar cases, by seeking the it, either formally or informally, from the another defendant or a third party, by making a request under either the California Public Records Act (Gov. Code, §§ 6250 et seq.) (see Fairley v. Superior Court (1998) 66 Cal.App.4th 1414, 1422 (pdf); Wilder v. Superior Court (1998) 66 Cal.App.4th 77, 82) or the federal Freedom of Information Act (5 U.S.C. § 552), or by searching the Internet.

Conversely, a litigant compelled to disclose sensitive information may be able to mitigate the negative collateral effects of the disclosure by obtaining a protective order. (Code Civ. Proc., §§ 2017.020, subd. (c), C.C.P. Section 2019.030, subd. (b)(2) (pdf); see Pacific Tel. & Tel. Co. v. Superior Court, supra, 2 Cal.3d 161, 170-171, fn. 11.)

Maximizing the Chances of Writ Review

Choosing your battles. Cases decided subsequent to Oceanside suggest that certain categories of discovery rulings may be more likely to meet the requirements for writ review, while others may be less likely. A discovery writ is more likely to be granted in the following types of cases:

• Where the order involves a denial of discovery. (See Pacific Tel. & Tel. Co. v. Superior Court, supra, 2 Cal.3d at pp. 170-171, fn. 11.)

• Where an order grants discovery over an objection based on a privilege. (See Pacific Tel. & Tel. Co., supra, 2 Cal.3d at pp. 170-171, fn. 11.) Indeed, the Supreme Court has stated that the need for the availability of the prerogative writs in such cases is “obvious” because the “person seeking to exercise the privilege must either succumb to the court’s order and disclose the privileged information, or subject himself to a charge of contempt….” (Roberts v. Superior Court (1983) 9 Cal.3d 330, 336.)

• Where the issue concerns the right to conduct discovery. For example, a writ issued to determine whether a party has a right to conduct discovery following remand after reversal on appeal (see Code Civ. Proc., §2024, subd. (a) (pdf)). (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 249 (pdf); see Beverly Hospital v. Superior Court (1994) 19 Cal.App.4th 1289 (pdf), [right to conduct expert discovery on remand].)

• Where the effect of the ruling is to preclude all or a substantial part of a litigant’s case. This can occur when a court orders that matter has been deemed admitted pursuant to a request for admission. (See, e.g., Courtesy Claims Service, Inc. v. Superior Court (1990) 219 Cal.App.3d 52, 54 (pdf), disapproved on another point in Wilcox v. Birtwhistle (1999) 21 C4th 973, 983, fn.12; Hansen v. Superior Court (1983) 149 Cal.App.3d 823,8278.) (pdf).) In fact, in Hansen the court went so far as to suggest that this situation should not be subject to the restrictions normally governing discovery writs: “Because requests for admissions are more closely akin to summary adjudication procedures than to orthodox discovery, being designed not so much to ‘discover’ the facts and to expedite trial preparation as to render it unnecessary to try an otherwise triable issue of fact or law, we do not apply the rule that a reviewing court should rarely interfere with pretrial discovery orders, particularly where such orders operate to grant discovery. Instead, we follow general principles….” (Ibid., cits. omitted.)

In contrast to the foregoing cases, a discovery writ will probably not be granted in the following situations:

• Where the objection to an order granting discovery is based solely on irrelevancy. (Pacific Tel. & Tel. Co. v. Superior Court, supra 2 Cal.3d 170-171, fn. 11 [such order “generally will not support the issuance of an extraordinary writ”].)

• Where an order merely concerns a challenge to the timing of disclosure of a defendant’s financial records in a punitive damages case (and not the disclosure of the records themselves). (City of Alhambra v. Superior Court (1980) 110 Cal.App.3d 513, 520-521 (pdf).)

• Where an order compels discovery of matter even though it may be available from public records or another source equally accessible to both parties. (City of Alhambra, supra [prior suits against a defendant based on similar incidents over an objection that the information was a matter of public record and thus equally accessible to both parties].)

• Where an order compels a plaintiff in a personal injury action to submit to a medical examination without the presence of her personal physician. (Long v. Hauser (1975) 52 Cal.App. 3d 490, 492 (pdf).)

Tailoring the issues. Once the decision is made to seek a writ, the emphasis should be on framing the issues in the petition in a manner calculated to bring them within the Oceanside requirements. The issues should be stated broadly, so as to demonstrate their general importance to the bench and bar. And they should be framed so as to emphasize their novelty or otherwise demonstrate a question of first impression.

Law review articles, decisions, from other states, or even general information obtained from the Internet or elsewhere may be relevant to help establish that the issue presented is one of “general importance to the trial courts and to the profession” for which “general guidelines can be laid down for future cases.” (Oceanside, supra, 58 Cal.2d at p. 185, fn. 4.)

In fact, in an appropriate case it may even be possible to submit with the writ petition additional evidence bearing on the Oceanside factors. Because writ review is an original proceeding, an appellate court has discretion to consider additional evidence not presented in the court below. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2012) ¶ 15:179.1 (rev. #1, 2011); Bruce v. Gregory (1967) 65 Cal.2d 666, 667-671 (pdf); McCarthy v. Superior Court (1987) 191 Cal.App.3d 1023, 1030, fn.3 (pdf).) Although it usually will decline to do so where the additional evidence bears on the very issue decided by the trial court and was not before that court at the time of its decision (see People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164 (pdf), and cases cited therein), the appellate court may be more receptive to new evidence if it bears solely on the factors to be determined in deciding the propriety of granting writ review.

Conclusion

Fortunately, although adverse discovery rulings do occur, rarely do they threaten to significantly imperil the outcome of a case. In those rare instances, where they do, writ review may be the only means of relief. By knowing the considerations relevant to such obtaining such relief a litigant can at least maximize the chances that it will in fact be granted.

 

When Discovery Abuse is a Trial Strategy

Pile of Paper.jpgDuring my seminar on “Sanctions Denied,” I was asked how do you handle discovery abuse when it is part of a deep pocket defendant’s litigation strategy.  His story went like this:

 

Plaintiff's counsel had been to court several times on motions to compel documents and motions to compel further documents from an international Corporation.  The court’s most recent order was that the documents were to be served two weeks before the corporation’s person most knowledgeable depositions were to take place in London.   Instead defendant produced 30,000 documents on a CD less than 24 hours before the London depositions were to begin.   Plaintiff counsel went forward with the depositions as trial was in a month and his client could not afford for the lawyer to go to London another time.  Plaintiff counsel expressed his frustrations that even though the court gave him $6000 in sanctions he was severely handicapped in his preparation for the depositions and it impacted on what evidence he could obtain before trial.    

 

Even though this is an extreme example, it is not unusual.  The real question is what could he have done and what should you do if you find yourself in this situation.  

 

First.     Make a cursory review of all the documents and determine whether they are produced pursuant to the document request or as they are kept in the normal course of business.  CCP 2031.280 (pdf)  Then determine if the document production is in compliance with the response.  If anything is deficient then you need to prepare for a meet and confer session.

 

Second: Conduct the meet and confer session on the record prior to the deposition going forward.  The transcript will memorialize the meet and confer to satisfy the statutory requirements as well as show opposing counsel’s abuse of the discovery process.   Be aware you are doing this for the court so detail is important.  Discuss the following:

 

A. Timeline from the request for production to the final receipt of the documents.

 

B. The numerous meet and confer attempts and their responses. 

 

C. The court’s orders and how many times they have been in violation of not just the current order, but also other discovery orders.

 

D. The flaws in the production (i.e., not responsive to the request, not categorized/or produced as kept in the normal course of business, no proper response document, garbage objections and insufficient privilege log).  Also determine whether or not the opposing party made a diligent search and a reasonable inquiry.  

 

E. Whether or not opposing counsel will produce the deponent again once you have reviewed all the documents.  If he is willing to produce the deponent again determine where the deposition will take place (London or California) and who is going to incur the travel expenses.

 

Third.  If you can’t get a hold of the court or your discovery referee for a ruling, then go forward with the deposition.  Make sure you state at the beginning of the deposition that you are not prepared to fully take the deposition due to the tardiness of the production of the documents and will not be able to conclude the deposition at that time.  Also, do this again at the end so your opponent will not be able to state that you concluded the deposition.  

 

Finally.  Go to court immediately and advise the court of the discovery abuse and how it has impacted your ability to prepare for trial.  You can ask the court for a variety of remedies such as:

 

A. Motion to Compel the Continued Deposition of the deponent.  Request that the opposing party incur all travel costs and expenditures in traveling to California for the deposition or request that opposing party pay for all your travel costs and any other expenditures in having to take the deposition a second time.   In the alternative you can ask that the deponent be produced for deposition three (3) court days prior to their testimony at trial and the opposing party pay for the expedited transcript.  

 

B. Motion to Compel Further Responses and Production of Documents if you have any issues with the document response, production or privilege log.  

 

C. Motion to Continue Trial and Reopen Discovery for the limited purpose of any discovery you need due to the tardiness of the production of documents including producing the deponent for a continued deposition.

 

D. Motion for Issue and Evidence Sanctions which could include (1) excluding all testimony of the witnesses deposed in London; (2) excluding all documents produced in the late production; (3) excluding all witnesses who would testify on behalf of the opposing party regarding the issues that the deponent testified on;  (4) opposing party being barred from entering evidence at trial on certain issues and/or affirmative defenses.

 

E. Motion for Monetary Sanctions, which includes all your travel expenses to London as well as the cost of the motion.   Also, ask the court to award sanctions pursuant to C.C.P. §177.5 (pdf)—up to $1500 in sanctions payable to the court for violations of court orders. 

 

F. Ask the court to impose deadlines for discovery responses with a return date to the court to show compliance.

 

G. Request the court appoint a C.C.P. §639 (pdf) to oversee the deposition and the compliance with the document requests.   

 

H.  If you don't have time to bring a motion or you are unsuccessful in the Law and Motion department, then turn the above motions into motions in limine for the trial department.   

 

HINT:  When you go to court bring a court reporter and be prepared to make a record for the Court of Appeal as you do have an appealable issue.

DISCOVERY PLAN PART 3--Are You Ready for Mediation?

handshake 2.jpgIn many cases mediation is the most cost-efficient and effective method of resolving a case. Often, litigants can save a lot of money and time when mediation is held after first tier discovery has been completed, once the core facts are determined that circumscribe the dispute. In order to facilitate early resolution many courts have implemented mediation programs and asked mediators to volunteer their time. Unfortunately, many mediators are becoming discouraged with these programs because many times the parties are not prepared. 

Speaking to a number of Bay Area mediators who participate in the court ordered mediation panels, they have uniformly identified that the majority of the court ordered mediation cases are breach of contract and personal injury cases. 

It was a consensus that, whether the information is obtained through investigation, informal exchange of information or formal discovery, parties need to know the absolute basics of their case so that they can intelligently mediate.  Mediation is not the time to expect an opponent to “educate” you of the basic understanding of your case.   This may seem to be obvious, but in hearing the stories from the mediators it was surprising on how unprepared many parties are. 

In my opinion, a proper evaluation of the case is the single critical factor to a successful mediation. The proper evaluation is based on the stage of the case. With early mediation, there  will be less certainty regarding the evaluation of the case (a wider range of unknowns).  The flip side, however, is that with greater certainty through discovery comes added costs of the discovery itself. However, in most breach of contract and personal injury cases, experienced litigators (and clients for that matter that have experience in settling sometimes thousands of cases) can calculate a rough settlement range at any stage of the case based on the known facts, the law, and the expected costs moving forward. 

Also, to properly prepare for mediation in the non-typical cases, preparation requires understanding the possible outcomes, if the case is not a simple “how much”.  Preparation must be done to determine whether the dispute is, for example over the probability of winning title to property in a quiet title action (where winner takes all). Or, can the dispute between the litigants be resolved by agreeing to injunctive relief, or by one party agreeing to do work as part of the resolution. Understanding, planning for, and evaluating the settlement paradigm or possibilities must be thought through BEFORE the mediation begins, or you may find yourself evaluating them for the first time in front of the mediator, the opposing counsel and your client. 

Below are suggestions from the mediators on how to prepare for mediation:

PRIOR TO SCHEDULING MEDIATION

  • Research the causes and of action and establish what you need (if you are a plaintiff, or your opponent needs if you are a defendant) to prove you case. Review jury instructions. Determine whether or not any statutes or case law are relevant or even dispositive to the case.
  • Is this a case that can be positioned for a dispositive motion such as a motion for summary judgment or judgment on the pleadings? What are the odds of success? Is it wise to file the motion prior to the mediation, so that the possible outcome can influence your opponent’s evaluation and view of the case?
  • Are there any legal issues that need to be resolved before you can properly evaluate your case? Many cases have a significant litigation risk, where a judge’s ruling can dramatically change the evaluation, such as the duty to defend in an insurance case, or design immunity in a dangerous condition of public property case.
  • Are there any insurance issues that need to be determined prior to mediation? Have all the defendants’ insurers been tendered to, have all responded, and are there any that refuse to participate?

BREACH OF CONTRACT CASES

  • Do you have a copy of the executed contract and all modifications of the contract?
  • Have you read the contract and talked to your client about the terms that are at issue in the case?
  • Is there a dispute as to any oral understanding or circumstances of the contract that would lead you to depose opposing parties or witnesses regarding the critical issues (contract formation, alleged breach or consequential damages, for example) prior to the mediation?
  • Is there uncertainty in the claims such that you need an accounting of the damages prior to the mediation?
  • Are there any terms of the contract, or your proof, that would lead to contradictory results that need to be considered prior to mediation? For example, in an insurance case where one party is seeking reformation of the contract, have you considered that without reformation, your client legally loses the case?
  • Is there a settlement construct that resolves the dispute but requires action on the part of one of the parties rather than a simple exchange of money?

PERSONAL INJURY CASES: 

  • Have you considered and evaluated the appropriate percentage of comparative negligence?
  • Do you have all the medical records and medical bills? Have any of the medical bills been reduced or compromised?
  • Is there any “joint and several” liability issues, or Civ. Code §1430 - 1432 (Proposition 51) issues to consider – how does that affect your strategy.
  • Are there any liens?
  • Do any medical records show pre-existing injuries? 

INVESTIGATION and DISCOVERY 

  • First, determine what information you need to evaluate the case in order for you to advise your client of the range of exposure (or potential recovery) and outcome of the case.
  • Consider, will the information you are obtaining likely to sway the mediator (or judge or jury) to your position or convince the other side that they need to resolve the case?
  • Determine what information you can get from investigation and what need to get from formal discovery.
  • Specifically obtain:
    • Initial written discovery to obtain information and documents.
    • All medical records showing pre-existing injuries.
    • Depositions of all major players especially if is a credibility match, i.e., a "He said/She said" situation.
    • All photographs from that day of the incident if applicable.
  • Personally go to the scene of the accident to understand how the accident could have occurred
  • Prepare post-incident photographs or diagrams of the scene of the incident.
  • Determine if you need to conduct an IME, site inspection or destructive testing prior to the mediation 

BRIEFS 

  • Provide the brief at a minimum five (5) days before the mediation so that the mediators will have time to review the brief, conduct any legal research they may need and possibly do a pre-mediation conference call.
  • Prepare your brief as you would prepare your motion papers to the court. You need to convince the mediator to your side as you would a judge or jury, so the mediator can work for you with the other side. If you have exhibits, then highlight the relevant portions.
  • Depending on the type of case you have, your brief should contain the following:
  •  
    • Timeline of events.
    • A statement regarding liability: Whether you are admitting liability or comparative negligence for the purpose of the mediation.
    • Relevant legal authority, including important legal issues and where they are likely to be raised: Motion for Summary Judgment, Directed Verdict or Motion in limine.
    • Calculation and Total of all damages and offsets for both sides (if applicable), and the net payments from one side to the other.
  • Depending on the type of case you have your exhibits should include the following: 
  •  
    • Color Copies of all photographs.
    • Highlights of pertinent deposition testimony and statements.
    • Highlights of all pertinent information in the police report, medical records, employment records, contracts, etc.
    • Diagrams and photos of accident scene (especially auto accidents).
    • Google maps if relevant.
    • Any expert report you are relying on. This is not an all-inclusive list, but it is a starting point. I welcome others to provide their input and suggestions. 

HINT: One retired judge who is now a prominent mediator in the Bay Area says that the first thing you must do is meet with your client and “really listen to what he or she has to say.”

 

The "Usual Stipulations" at a Deposition

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When I was sent out to attend my first deposition, I had a general idea of how everything was supposed to proceed.  Unfortunately, I was immediately knocked off my game when prior to the commencement of the deposition all the lawyers agreed to the "usual stipulations." Not wanting to look like an inexperienced newbie, I agreed.  I was also afraid to ask anyone in my office as to what the usual stipulations were let alone whether or not I did the right thing in stipulating.  It took me many depositions later to confidently demand that I wanted the stipulations on the record.  I didn't make the request because it was the right thing to do, it was because I could finally learn what the usual stipulations were.    

On her CEB Blog, Julie Brook does a wonderful job explaining what are the usual stipulations and whether or not you should stipulate.  Julie points out that the Code of Civil Procedure covers many of the usual stipulations, so there is no need to stipulate.  She also advises that you should never stipulate without putting the specific stipulations on the record.  And, finally, she outlines the stipulations that you should consider.  

Even if you are not a young lawyer, I highly recommend that you read her blog titled "So Stipulated" before you go to your next deposition.   

A Judge Needs to Call Balls and Strikes on Discovery Motions

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When a Judge or Discovery Referee makes a comprise in a a discovery dispute--splitting the baby--I cringe. This goes against the philosophy of the Discovery Act and current case law. There are rules in discovery and attorneys are expected to play by those rules. When one side plays by the rules and asks the court to enforce those rules, it becomes disheartening to that party when the Judge or Discovery Referee splits the baby instead of making the tough call.  

Recently, I heard a lawyer bemoan the fact that instead of granting the motion to compel further responses to requests for documents documents which he clearly had won, the judge ordered that the responding party to turn over all its declared experts files prior to the declared expert’s deposition instead.  Apparently the judge was persuaded by the opposition’s position that to provide a further response and gather all the responsive documents would take too much time away from their preparation of the impending trial. This order was wrong on so many levels I don't know where to begin. 

First:         Moving party was entitled to an order granting his motion to compel further responses to documents. The responses to the requests were due more than three months prior to the hearing and he too has to prepare for the impending trial.  Now the judge has handcuffed him by not allowing him to prepare for trial with all the documents he is entitled to receive in discovery.  This limited his ability to fully prosecute his case and possibly exposing him to a malpractice lawsuit.   

Second      The judge has also given the opposing side an unfair advantage as they can use documents at trial that the moving party has never seen.  This is contrary to the purpose of the 1986 Discovery act, which was to take the “game element out of discovery” and that there be “no surprises at trial” by allowing a full exchange of all information available to both sides. See Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2012) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355,376 (pdf).

Third:        The judge is wrong on the law when he ordered the opposing party to turn over the expert’s entire file before the expert was deposed.  Until a declared expert testifies, the is a consultant and his file is protected by the work product doctrine.  See Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2012) ¶ 8:1687.5, citing Shooker v. Superior Court (2003) 111 CA4th 923,930 (pdf) and Kennedy v. Lucky Stores (1998) 64 CA4th 674, 679 (pdf).

Discovery motions need to be taken seriously.  Judges and Discovery Referees need to adhere to the Discovery Act and current case law and call balls and strikes.  These rulings may not make them fans of the litigants, but they impact a case as much as demurrers and motions for summary judgments.   It is also important that the attorneys be prepared to argue for their clients discovery.  You need to point out and make a record that you have the right to the discovery, that you met and conferred with opposing counsel in good faith, that you have spent needless time and money trying to obtain the discovery and should recover sanctions.  It is your obligation to your client to make sure that the Judge or Discovery Referee doesn't just split the baby in an attempt to not have to make the hard call.  

 

 

 

You Have The Right To Conduct Discovery!!

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Last week I received a phone call from an attorney asking what is the authority that says a party has the right to conduct discovery.  I responded, “The Discovery Act!”  Counsel stated that they needed more because a special master in their construction defect case refused to allow them to serve discovery and was demanding authority to prove that they had such a right.  I thought it was such a basic concept in civil litigation that I was amazed that it even was an issue.  Nonetheless, I went to the discovery treatises to find the answer.  I reviewed Weil and Brown California Practice Guide Civil Procedure Before Trial (TRG 2013), California Civil Discovery (Hogan and Weber 2013) California Discovery Citations (TRG 20130) and California Civil Discovery Practice (CEB 2013).  The CEB treatise had the best discussion regarding a party's right to discovery in a civil action.  The following is an excerpt from the book:

 

II.  DISCOVERY UNDER CIVIL DISCOVERY ACT:

C.  Broad Right to Discovery Under Civil Discovery Act

 

  1.  Purposes of Civil Discovery Act §1.27


Discovery is the formal exchange of evidentiary information and materials between parties to a pending action.  Arnett v Dal Cielo (1996) 14 Cth 4, 20, 56 CR2d 706 (pdf)A party is entitled to disclosure in discovery as “a matter of right unless statutory or public policy considerations clearly prohibit it.”  Greyhound Corp. v. Superior Court (1961) 56 C2d 355,15 CR 90 (pdf), interpreting the Discovery Act of 1957.  The intention of the discovery statutes is to make discovery a “simple, convenient, and inexpensive” means of revealing the truth and exposing false claims.  56 C2d at 376.  Another purpose of the discovery statutes is to “educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial.”  Emerson Electric Co. v. Superior Court (1997) 16 C4th 1101,1107, 68CR2d 883 (pdf), 68 CR2d 883, citing Greyhound Corp v Superior Court (1961) 56 C2d 355, 376, 15 CR 90.  The statutes are also designed to eliminate surprise.  Fairmont Ins. Co. v Superior Court (2000) 22 C4th 245, 253 n2, 92 CR2d 70. [Emphasis Added]

 

2.  Construed Liberally  §1.28

 

California courts have reiterated that discovery provisions in the Civil Discovery Act of 1986 (CCP 2016-2036) and the Civil Discovery Act (CCP 2016.010-2036.050), which replaces it, are to be liberally construed in favor of disclosure.  Flagship Theatres of Palm Des, LLC v Century gtheatres, Inc. (2011) 198 CA4th 1366, 1383, 131 CR3d519 (pdf) (absent showing that substantial interests will be impaired by allowing discovery, liberal policies of discovery rules will generally counsel against overturning trial court’s decision granting discovery and militate in favor of overturning decision to deny discovery).  For example, in a breach of contract action against an insurer, the court stated that “California’s pretrial discovery procedures are designed to minimize the opportunities for fabrication and forgetfulness, and to eliminate the need for guesswork about the other side’s evidence, with all doubts about discoverability resolved in favor of disclosure.” Glenfed Dev. Corp. v. Superior Court (1997) 53 CA4th 1113, 1119, 62 CR2d 195 (pdf), 1119, 62 CR2d 195.  To accomplish the legislative purpose behind the discovery statutes, they “must be construed liberally in favor of disclosure.”  Emerson Elec. Co. v Superior Court (1997) 16 C4th 1101, 1107, 68 CR 2d 883, quoting Greyhound Corp. v Superior Court (1961) 56 C2d 355, 377, 15 CR 90.  [Emphasis Added]

 

3. Subject to Exercise of Court’s Discretion

a. Greyhound Corp. v Superior Court   §1.29

 

The right to discovery is subject to the management of the trial court exercising its sound discretion.  See Greyhound Corp. v Superior Court (1961) 56 C2d 355, 382, 15 CR 90.  In exercising its discretion, the trial court bases its decisions on the language of the Civil Discovery Act and the legislative purpose of avoiding surprise and preventing fabrication of evidence at trial.  Glenfield Dev. Corp. v Superior Court (1997) 53 CA4th 1113, 1119, 62 CR 2d 195.   The principles announced by the California Supreme Court in the seminal case of Greyhound Corp. v Superior Court (1961) 56 C2d 355 383, 15 CR 90, remain applicable, i.e.: 


* The legislative purpose of liberal discovery must not be subverted under the guise of exercise of discretion

 

* This purpose is to be given effect rather than thwarted, so discovery is encouraged.

 

* Disputed facts should be liberally construed in favor of discovery, rather than in the most limited and restricted manner possible.

 

* Statutory limitations on discovery should not, in the exercise of discretion, be extended beyond the limits expressed by the legislature.

 

* Judicial discretion may not be exercised in situations not included in the discovery statutes, e.g., denial of discovery based on a claim that the party seeking discovery is engaging in a fishing expedition.”  Such matters may, however, be considered under the court’s statutory power to prevent misuse and advance the ends of justice.

 

* When the facts are undisputed, or are reasonably susceptible to only one interpretation, the issue becomes one of law and is not subject to the exercise of discretion.

 

* Whenever possible, a court should impose partial limitations on discovery rather than denying it entirely;

 

* Before requiring a party to bear the burden or cost of production, a court should weigh the importance of the information sought against the hardship that its production may entail, as well as the relative ability of the parties to obtain the information [Emphasis Added]


 

b. Other Principles Guiding Court’s Exercise of Discretion  §1.30

 

In addition to the guidelines of Greyhound Corp. v Superior Court (1961) 56 C2d 355, 383, 15 CR 90, several other principles are well established in California discovery law:

 

 

* A legal basis must exist for the trial court’s discretion. Carlson v. Superior Court of Los Angeles County, 56 Cal. 2d 431,15 CR132 (pdf)

 

* In the face of an “irrelevance” objection, an order granting discovery is proper unless   there is no reasonable possibility that the responses will lead to the discovery of admissible evidence or be helpful in preparing for trial.  Sav-On Drugs v. Sup. Ct. (1975) 15 C3d 1, 15 CR 132 (pdf)

 

* Doubts concerning relevance should usually be resolved in favor of permitting discovery.  Colonial Life & Accident Insurance Co. v. Superior Court (1982) 31 C3d 785, 183 CR 810 (pdf) 

 

* The concern for undue burden in discovery applies with greater weight when discovery is sought from a nonparty.  Calcor Space Facility, Inc. v. Superior Court (1997) 53 CA4th 216, 61 CR2d 567 (pdf) 

 

* All doubts about discovery are resolved in favor of disclosure.  Glenfield Dev. Corp. Superior Court (1997) 53 CA 4th 1113, 1119, 62 CR2d 195. [Emphasis Added]

 

 

The Discovery Act and the current case law make it clear--the trial court must have legal justification for any order granting or denying discovery and an order lacking legal justification can be set aside on an appeal or request for a writ.  See Johnson v. Superior Court 980 CA4th 1050, 1061, 95 CR 2d 864 (pdf), citing Greyhound Corp v. Superior Court (1961) 56 C2d 355, 378, 15 CR 90.  Though some aspects of discovery limitations are explicitly entrusted to the court’s discretion such as C.C.P. §2019.020(b) (pdf) which gives the court the power to establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice and Lu v. Superior Court (1997) 55 CA4th 1264, 1269 (pdf) which states that one of a discovery referee's duties is to “work with the attorneys in developing a discovery plan, scheduling discovery in the most efficient, rational and least oppressive manner;” they do not give the special master wholesale powers to disregard a party’s right to discovery.  

Plaintiff's Rights Regarding an Independent Medical Examination

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When plaintiff receives a demand for a physical examination he or she have 20 days after the service of the demand to serve their response.  Pursuant to C.C.P. §2032.230 (pdf), plaintiff has three options:

  1. Agreeing to the request;
  2. Agreeing as modified to the request; or
  3. Refusing to to submit to the demanded physical examination for reasons specified in the response. 

If plaintiff refuses to submit to the physical examination, then the response must specify the reasons.  The most common objections are the

  •  
    • date, time and location of the IME;
    • IME is not being performed by a licensed physician or other appropriate licensed health care practitioner;
    • scope of IME is outside the “condition in controversy” and/or
    • IME includes painful, protracted or intrusive tests. 

Plaintiff is not obligated to file a protective order as it will be defendant’s burden to bring a motion to compel the independent medical examination.  See Weil and Brown, Civil Procedure Before Trial (TRG 2012) 8:1542.1 and C.C.P. §2032.250 (pdf)  However, if plaintiff does not serve a timely response then all objections will be waived. C.C.P. §2032.240(a) (pdf)

More likely than not, plaintiff counsel is going to allow the plaintiff to submit to the independent medical examination.  If so, then there are a few things plaintiff counsel should be aware of. 

         1.      Plaintiff Counsel May be Present During the Examination

Pursuant to C.C.P. §2032.510(a) (pdf), plaintiff counsel must be permitted to observe and record a physical examination of their client. Counsel may designate a third person as the observer, provided the representative’s authority to so act is in writing and signed by the attorney. C.C.P. §2032.510( c)                             

The court has no discretion to exclude counsel form any portion of the examination.  Munoz v. Superior Court (1972) 26 CA3d, 643,645-646 (pdf) This is to assure that the emanation is restricted to the scope ordered by the court and to prevent improper questioning by the IME doctor.  See Sharff v. Superior Court (1955) 44 C2d 508, 510 (pdf)

            2.      Examination May be Recorded

Plaintiff counsel is also entitled to record stenographically or by audio (but not video) technology “any words spoken to or by the examine during any phase of the examination.”  C.C.P. §2032.510(a) This assures an objective record of what transpired and avoids unseemly dispute at trial between the attorney and the examining physician Weil and Brown, Civil Procedure Before Trial (TRG 2012) ¶8:1587.1 citing Munoz v. Superior Court (1972) 26 CA3d 643, 645-646 (pdf)

         3.      Others Present at the Examination

The presence of anyone other then the plaintiff’s counsel and a court reporter lies within the sound discretion of the court.  Thus, for example the plaintiff cannot insist on having his or her personal physician present.  Whether such presence is allowed is discretionary, not a matter of right. See Long v. Huser (1975) 52 CA3d 490, 493 (pdf).   However, a court would probably be quite lenient if a parent or spouse or adult child of the plaintiff was present during the examination. 

         4.      Questioning of Plaintiff is Limited

The IME statute mentions only a “physical examination.” Nothing is said about the right to question the plaintiff and there is no real case law as to the permissible scope of questions for the IME doctor to ask.   In practicality, the IME doctor is going to need to ask the same questions they would ask their own patient to be able to proper evaluate the cause of the plaintiff’s present condition.  It is also understood that an examining doctor may ask plaintiff their medical history.  According to California Civil Discovery Practice (CEB 4th Ed. 2012) §1051  The plaintiff should be cooperative and be prepared to give:

*       A general statement of how the accident or injury occurred;

*       A concise chronological history of the treatment to date;

*       A description of the injuries;

*       A complete statement of the present complaints. 

However, an IME doctor may not cross-examine the plaintiff regarding liability issues (e.g., the color of the traffic light), inquire into areas outside the scope of the medication examination (e.g., ob/gyn questions are not pertinent in an orthopedic exam) or ask questions that the examinee has already answered (questions answered in a deposition).  See California Civil Discovery Practice (CEB 4th Ed. 2012) §10.50 citing Golfland Entertainment Centers v. Superior Court (2003) 108 CA4th 739, 746 (pdf).

The easiest way for plaintiff counsel to protect against inappropriate questioning by exercising is by being present and recording the examination.                                      

         4.      Other Rights of the Plaintiff

         Though not delineated in the Code of Civil Procedure or discussed in any of the discovery treatises, plaintiff has other rights that are so fundamental, that they shouldn’t need to be listed here.  Yet, due to some of the horror stories I have heard and read about regarding less than reputable IME doctors, I feel that they need to be laid out. 

  • Plaintiffs have the right to be examined in an office that is clean, dust free, sanitized, and suitable for medical evaluation.
  • Plaintiffs have the right to be evaluated in a medical office or facility, which is in a safe and professional location of town.
  • Plaintiffs have the right to be treated and examined with respect.
  • Plaintiffs have the right to request an ambulance should an injury occur during the IME caused by the IME physician.
  • Plaintiffs have the right to be examined by a physician who speaks and understands English.
  • Plaintiffs have the right to refuse contact with any physician who is not clean and presentable, smells, has not washed his hands, or proceeds with the examination in a rough, painful or unexpected way.

         If any of the above occurs, plaintiff should conclude the examination and seek the protection of the court.  

You Can Discover How Much Was Paid for Medical Treatment

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Many times when a plaintiff answers Form Interrogatory 6.4, responds to requests for production of medical bills or prepares a settlement demand, they use the total medical bill without any regard to if the bill has been reduced or paid by another.  This is because of the collateral source.

The collateral source rule, which is a rule of evidence, states that

“if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor... [It] expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities. Courts consider insurance a form of investment, the benefits of which become payable without respect to any other possible source of funds. If we were to permit a tortfeasor to mitigate damages with payments from plaintiff's insurance, plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. Defendant should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance.  Helfend v. Southern California Rapid Transit Dist. (1970) 2 C3d 1, 6-10 (pdf)

Because of the collateral source rule courts found that defendants could not discover whether or not any of plaintiff’s medical bills were paid by the plaintiff's insurance, the medical treaters reduced their bill or there was gratuitous medical treatment.  See Weil and Brown, Civil Procedure Before Trial (TRG 2012) ¶ 8:96.  

 

Last year, the California Supreme Court in Howell v. Hamilton Meats & Provisions (2011) 52 C4th 541 (pdf) punched a hole in the collateral source rule by limiting plaintiff’s recovered damages to the actual economic loss incurred.   The Supremes held that 

When a medical care provider has, by agreement with the plaintiff's private health insurer, accepted as full payment for the plaintiff's care an amount less than the provider's full bill, evidence of that amount is relevant to prove the plaintiff's damages for past medical expenses and, assuming it satisfies other rules of evidence, is admissible at trial. Howell at 567

 

Since what plaintiff's actual medical costs incurred is now admissible, it is now discoverable.  

 

SEE: Jefferson's California Evidence Benchbook (CEB 2013) §36.40-36.45 for more discussion.  

I've Got This Doctor You Gotta See!

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In most personal injury actions the plaintiff is served with a Notice for an Independent Medical Examination. It has become so commonplace that no one really thinks twice about the demand. However, there are a few requirements to this discovery device that defendant must comply with in order to perfect the request.  

Pursuant to C.C.P. §2032.020(a) (pdf) any defendant has the right to demand a physical exam of the plaintiff to whatever portion of plaintiff’s body or conditions that are “in controversy” which means the specific injury or condition which is the subject of the litigation Roberts v. Sup Ct. (1973) 9 C3d 330, 337 (pdf). This can be determined either by the pleadings [Vinson v. Superior Court (1987) 43 C3d 833, 840 (pdf)] or by answers to discovery.

Code of Civil Procedure §2032.020(b) (pdf)) requires that that a licensed physician or other appropriate licensed health care practitioner performs the examination. Thus, a vocational rehabilitation expert who is neither a licensed physician nor a health care professional not working under the direction of a physician can perform the examination. See Weil and Brown, Civil Procedure Before Trial (TRG 2012) §8:1537 citing Browne v. Superior Court (1979) 98 CA3d 610, 615 (pdf).

The demand itself must comply with C.C.P. §2032.220 (pdf), which states:

(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:

(1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.

(2) The examination is conducted at a location within 75 miles of the residence of the examinee.

(b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.

(c) A demand under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination.

(d) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time.

(e) The defendant shall serve a copy of the demand under subdivision (a) on the plaintiff and on all other parties who have appeared in the action.

Although obtaining an Independent Medical Examination may appear to be a simple process here are some interesting twists and turns that I have encountered that a defendant should consider before they serve their demand. 

Scenario #1: Plaintiff was injured on a construction site when a crane hook hit him on the side of the face. Plaintiff brought a personal injury action against the defendant. In his answer to Form Interrogatory 6.1, plaintiff stated that he suffered a fractured skull, fractured jaw, migraines, hearing loss, vision loss and two broken teeth due to the incident. Upon receipt of the interrogatory answers, defendant noticed four separate independent medical examinations with a neurologist, ophthalmologist, ear nose and throat doctor and an oral surgeon. Plaintiff objected. 

Pursuant to C.C.P. §2032.020(a) (pdf), a defendant in a personal injury case has the right to one physical examination of the plaintiff without leave of court simply by serving a written demand on plaintiff. The only requirement is that the physical examination must be limited to whatever portion of plaintiff’s body or conditions that are “in controversy” in the lawsuit.

However, in this scenario, there are four separate portions of plaintiff’s body that are “in controversy.” If the defendant wants plaintiff examined by a second, third or fourth doctor and the plaintiff objects, then he must show good cause to obtain a court order. The requirement of good cause “is not a mere formality” that may be “met by mere conclusory allegations.” Hogan and Weber, California Civil Discovery, (Lexis Nexis 2005, updated 2012) §8:6 citing Schlagenhauf v. Holder (1964) 379 US 104, 118. A showing of good cause must be established and can easily be established in a variety of ways. Usually the pleadings or plaintiff’s answers to form interrogatories provide the basis of good cause. Another is to determine what specialists the plaintiff has seen or will be calling as an expert at trial. Hogan and Weber, California Civil Discovery, supra, §8:6 cite helpful language from the federal case Pastel v. Amana Refrigeration, Inc. (1980, ND Ga) 87 FRD706, 709: 

Unless [its ophthalmologist] is likewise allowed to examine the plaintiff, the defendant will be at a distinct disadvantage in this “battle of experts” at trial... Because the plaintiff has permitted [his own ophthalmologist] to examine him, fundamental fairness dictates that he now allow [a defense ophthalmologist] to do so also.

In Shapira v. v. Superior Court (1990) 224 CA3d 1249, 1255 (pdf), the California First District Court of Appeal held that a defendant who had already had the plaintiff be seen by a neurologist and a neuropsychologist could still show good cause for an examination by a psychiatrist.

In light of the statutory authority and case law, I recommend that that before defendant serve his first demand that they meet and confer with plaintiff counsel regarding the need for multiple medical exams. If that is not successful, then bring the motion to the court before proceeding with any medical examination.

Scenario #2: Plaintiff, a world class surfer, has filed a multi-million dollar claim against a maker of sun screen alleging that their product caused burns to his skin and made his skin so sensitive to saltwater that he is no longer able to compete in surfing competitions. Defendant served a Notice of IME stating that “patch testing will be performed applying the subject product in the appropriate proportions.” Plaintiff timely objected to the examination on the grounds that the diagnostic test requested is “painful, protrusive and protracted" and thus, violates C.C.P. §2032. Defendant brings a motion to compel the diagnostic testing. 

California courts have not yet defined what is a “painful, protracted and intrusive” test or procedure within the meaning of C.C.P. §2032.220(a)(1) (pdf). However, many courts across the country have allowed specific tests and procedures to be performed: Abex Corp. v. Superior Court (1989) 209 Cal. App. 3d. 755, 758 (pdf) (biopsy allowed); Sullivan, Long & Haggerty, Inc. v. Washington (1942, CA5 La) 128 F2d 466 [x-ray examination using lipoidol]; Riss & Co. v. Galloway (1941, Colo.) 114 P2d 550, [spinal tap]; Burns v. Aetna Life Ins. Co. (1933, Mont.) 26 P2d 175 [periodic immersion of injured hand into hot water]; United States Fidelity & Guaranty Co. (1919 Neb.) 173 NW 689 [x-ray procedure requiring injection of contrast substance into the kidney]; Cardinal v. University of Rochester (1946, Misc) 71 NYS2d 614 [bone marrow biopsy]; Carrig v Oakes (1940, App Div.) 18 NYS2d 917 [cystoscopic examination of a female plaintiff]; Bartoletta v. Delco Appliance Cor. (1938 App. Div.) 4 NYS2d 744 [stomach examination requiring consumption of barium meal]. For more detail see Hogan and Weber, California Civil Discovery, supra, at §8:7.

In regards to how the court's should handle the issue, I agree with Hogan and Weber, California Civil Discovery, supra, at §8:8, who recommend that

California courts, faced with a motion for a painful or dangerous type of medical test should consider the practice adopted in New York and Illinois for balancing ‘the competing interests of the defendant to investigate and completely satisfy his curiosity by generally accepted medical tests and the plaintiff’s interest in his own safety and comfort given the risks of a particular procedure...an examinee who is concerned about the pain or the risk connected with any requested examination, must file an objection. The examinee must support its objection by declarations of physicians or excerpts from recognized medical tests that describe the dangers it poses. After such a response, the moving party must show that the requested examination has clear probative value to the litigation’s ultimate issues and there is a minimal level of risk to the plaintiff. To meet this burden the moving party must present competent and specific medical evidence, not conclusory statement of defense counsel or physicians.

So plan your arguments and strategy around this procedure.

Scenario #3: Plaintiff was in his pick-up truck when he was t-boned by a cement truck. While his car veered out of control from the impact two other cars hit him. The accident caused multiple fractures in his left leg.  Plaintiff was immediately operated on by an orthopedist who repaired the bones, but left plaintiff with stiffness in his left leg and it was shorter by over an inch. Plaintiff eventually sued all three drivers. The driver of the cement truck obtained an orthopedic exam of the plaintiff prior to the other divers appearing in the suit. Once the other defendants appeared in the case they two served IME notices for an orthopedic examination of the plaintiff.

C.C.P. §2032.220(a) (pdf) states, "In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may obtain demand one physical examination of the plaintiff." However, there are more practical aspects to this code section then its plain meaning. In this scenario, two defendants came in the case after the first IME was performed. They didn't have the opportunity to choose the specialty of the doctor let alone the doctor. As with a deposition, they should be given the right to conduct their own discovery. However, this is going to prompt either an objection and/or a protective order by the plaintiff.  So before you serve a second IME notice for the same area of specialty, ask yourself the following:

A. Can you live with the report from the first IME doctor?

B. Are you going to need to discredit the first IME doctor in order to get your own doctor to perform the IME?

C. If there are conflicting reports from the two IME doctors, how are you going to handle it?

D. Can you do an IME in another specialty (i.e., neurology, plastic surgery, etc.)?  See Shapira v. v. Superior Court (1990) 224 CA3d 1249, 1255 (pdf)

If you still want to proceed with your own orthopedic IME then you should bring a motion pursuant to pursuant to C.C.P. §2032.320(a) (pdf) and be prepared to show good cause and why it is not considered harassing the plaintiff. Some of the arguments you can make in showing good cause is:

A. Significant time has passed since the last IME.

B. Continuing injury or injury has worsened Vinson v. Superior Court (1987) 43 C3d 833, 840 (pdf).

C. A subsequent accident or injury since the first IME was performed.

D. Different area of expertise (i.e., neurologist, plastic surgeon, etc.).

Remember that when you bring your motion you will need a separate statement and a declaration showing that you met and conferred with plaintiff’s counsel.