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Tips for Effective Written Discovery

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Tips for Effective Written Discovery

In this class Monty McIntyre, a seasoned Mediator, Arbitrator, and Referee at ADR Services explains how to effectively use written discovery to obtain the knowledge and information you need to help your client get the very best opportunity to be successful in their case. He will explore how to effectively use informal discovery, interrogatories, and requests for documents as well as subpoenas and motions to compel.


Monty McIntyre
Mediator & Arbitrator
ADR Services


Monty McIntyre: Hi there. My name is Monty McIntyre and I'm going to be talking to you today about conducting written discovery in your cases. Written discovery is quite important because it will help you get critical information that you need to prepare your case. Now, let me give you a little bit of a background about me. I've been a lawyer in California for a couple of years, only since December of 1980. And I've tried a lot of cases over the years, represented both plaintiffs and defendants in cases including business, commercial, employment, insurance, and insurance bad faith, real estate, personal injury, medical malpractice, land use, and real property and wrongful death cases.

   So, I've had a interesting, varied career, and I've learned a lot from trying cases in front of juries and judges, arbitrators and administrative law judges. I was honored and privileged to be made a member of the American Board of Trial Advocates in 1995. And back then when I was admitted, you had to have tried a minimum of 20 jury trials to conclusion as the lead council in order to be considered.

   So, I've continued to try cases for many years, but starting in about 2001, I started to part-time work as a mediator and an arbitrator, and then starting in about 2013, I started doing that as pretty much my full-time work. So, in bringing this experience to you and in talking about written discovery, let's talk a little bit about just a general philosophy about handling your case.

   Many, many lawyers know that most cases are going to settle, and that's probably true for about 95, 96, 97% of the cases. But what I have seen over the years is it is in my opinion, and I think the opinion of other trial lawyers, a mistake to be preparing your case just to settle. Now, you could be cost effective and you can try to do things in a way to try to save costs and expenses and conduct enough discovery to see if you can get the case settled.

   But I think the best philosophy, and I think most trial lawyers would agree with me, is you always should be preparing your case to go to trial, even though 5% or maybe fewer cases go to trial, you never know which one will need to. And the only way you're going to get your best settlement for your client, whether you're a plaintiff or a defendant, is to always be prepared to go to trial and to be an effective trial lawyer in the courtroom where the opposition knows that you will give them the maximum risk and they will have the biggest issue of handling the case.

   Because if they know you're ready to go to trial, if they know you know how to go to trial, and if you have been preparing your case to go to trial, you will get the best settlement that you can get for your client without having to go to trial. But if you do not go to trial, people get to know that, whether it's insurance companies and claims representatives, whether it's opposing counsel, and they will hold your feet to the fire and they will not give you the top dollar and the best settlements.

   So, in doing your written discovery, I think your philosophical outlook should be, "We are preparing this case for trial. We are getting the information that we need to try this case and get the best result for our clients or clients in the courtroom." And so with that philosophic background, let's then go and say, "All right, now that we have started this process and we've started this lawsuit, what are we trying to accomplish in terms of what we're doing with our written discovery?"

   So, the overall strategy in handling the written discovery is you want to, in my opinion, try to send out and try to complete the written discovery early in the case. A lot of people wait for a long time to do things. In fact, I've been involved in cases over the years where in the last month or two before trial, everybody is running around like chickens with their heads cut off trying to take all the percipient witness depositions, most of which haven't been taken so far, and also trying to take the expert depositions. That is craziness.

   You don't want to get prepared for trial in that way. That's somebody who's not ready and that's somebody who's not going to get the best result. So, I think the opposite is the best way to go. You want to try to get your written discovery sent out early and you want to try to complete the written discovery pretty early, because that's going to allow you to get some important things accomplished. Now, the goals are in the written discovery, we want to find out who are the witnesses?

   Who are going to be the percipient witnesses that we need to depose, or that you need to depose in dealing with this case? And you need to find those witnesses out early. If you're on the plaintiff's side, you're going to have to file your complaint and get the complaint served. But you can start sending discovery to the defendant even before they answer, which we'll talk about in a minute, and you can start getting information and try to find that who are the witnesses.

   And the other thing that you want to be doing with your written discovery in our overall strategy, is we want to find out what the relevant documents are and get them, because you need to have all of those. Now, why do you need to know who all the witnesses are, and why do you want to get all of the relevant documents? Well, the purpose of getting those two things is to allow you to prepare for and to be able to take all of the necessary depositions of the percipient witnesses.

   Now written discovery is very important, but written discovery is merely one of the building blocks of getting ready for a trial. And in my opinion, and I think the opinion of all experienced trial lawyers, the most important tool in your arsenal is the tool of depositions. That is the most valuable discovery tool. Now you can't take a deposition that's going to make sense if you don't know who the witnesses are, and you can't take a good deposition if you don't know what all the documents are, and if you haven't analyzed your documents.

   So, you want to make sure with your written discovery to get done as early as you can, and then find out who those witnesses are and get all the relevant documents. Now, the benefits of doing this, if you get your written discovery done relatively early in the case, and then if you complete taking all the percipient witnesses before you get to the time in your state where you're going to have an expert witness exchange, that's really the goal.

   Because the experts are usually listed and then deposed near the end of the case as you're getting close to trial. And what you don't want to do is you don't want to have a number of percipient witness depositions that you have to finish in order to do experts. I mean, number one, it's going to be too many things happening too fast, it is going to create too much stress, too much tension, too much chaos. You don't want that. That's not good for you. It's not going to be good for getting the best result for your client.

   The other thing is most expert witnesses are going to have to consider a lot of the percipient witness testimony in order to give their opinions. And so to the extent that you have percipient witnesses that you haven't deposed and the experts need to rely upon their testimony. Well, now you've got this timing blockade, because you've got to get those percipient witnesses done. So, if you really want to prepare the case well, and if you want to be getting ready for trial to get the best settlement in the case, well, you want to try to get the written discovery done early so you can get the recipient witnesses completed before you need to get to the expert depositions.

   And that's a much better way to do things. And that's a suggestion that I have for really a better way to manage your case. And it's also, much to your benefit, a better way to manage your life. So, one thing we can do in written discovery is informal discovery. And a lot of lawyers overlook this, and don't overlook it, because just because you have formal discovery tools like interrogatories, things we'll discuss here in a minute, that doesn't mean you shouldn't try to get informal discovery.

   Informal discovery is a great way to obtain critical information and documents. So, what are we talking about here? Well, with informal discovery, talk to an interview non-party witnesses and find out what they know, and find out about documents that they think are important. And they may have copies of them and they can give you copies of them. Now, if these non-party witnesses are former employees, you may have to be careful about contacting them. But if they really are non-party witnesses and they're just somebody who witnessed something, you ought to be able to reach out, you ought to be able to contact them.

   And so your best source of information about non-party witnesses is from your client. Who do they know is a person who was a witness at some of the critical dates and events who has information about what happened, who may have copies of relevant documents? So, really you want to do this informal discovery. Talk to these people, take good notes and get information. And one of the benefits that you're going to get is when you meet with these people, you can talk to them and you get a sense of how are they going to do as a witness.

   I mean some of these non-party witnesses may be fantastic witnesses in depositions or at trial, and some of them are going to be terrible witnesses. So, you may make a tactical decision because you've done this in informal discovery to say, "Well, this witness is going to be terrible. They're probably not going to help us. I'm not going to take their deposition. And then we'll hope that the other side doesn't find out about them, or decides not to take their deposition."

   However, if somebody is a great witness, you may also decide tactically, "Well, maybe I'm not going to take their deposition. If I feel they will be cooperative, if they will appear at trial, maybe I'll just send them a subpoena. And I know what they're going to say. And if my opponent doesn't ever talk to them and if I don't take a formal deposition, they may not find out this great information this witness has, or they may not find out about some documents that this witness knows about and testimony they can give those documents."

   So, informal discovery is great because as one of the benefits, your opponent may not get the information. Because you're doing your hard work, but your opponent doesn't get to know what it is you've learned from these various witnesses. So, this is really a great tactic. It's really a great benefit when you get information this way. Also, informal discovery is a great way for you to get a better understanding of the case. And it's also going to help you prepare for the important depositions that you're going to take of the percipient witnesses who need to be deposed.

   I mean that's just going to be key. So, this is a great way for you to learn about the case, learn about how people are going to do, maybe get some additional documents, get some understanding of what's going on in the events and understanding of what's happening between the players in this drama. And it's really, really important. So, make sure that you do your informal discovery, because informal discovery is a powerful tool that you want to work with. Now, let's talk about our first formal set of written discovery tool, and that's interrogatories.

   In California, where I practice, the authority for interrogatories is Code of Civil Procedure, section 2030.010, et seq. And so this is where you're going to go. If you're not in California, obviously you're going to have to look up your own code sections and find out what the authority is for interrogatories in your state. But generally the state is going to have some kind of authority for the interrogatories. Now in California, there is a limit of 35 interrogatories that each party can send to another party, in addition to form interrogatories.

   And form interrogatories, this is discussed in Code of Civil Procedure, 2030.030(a)(1). Now, we have two forms of interrogatories in California. We have what are called form interrogatories, and these are form interrogatories or questions prepared by of the California Judicial Council, and I'm going to discuss these a little bit later. And these are form interrogatories that any party can use and they're very helpful. Now, one of the benefits of these form interrogatories is they're not counted as part of the 35. So, we also have what we call special interrogatories.

   And special interrogatories are any other questions you'd ask in an interrogatory form. And you've got a limit of 35 per party in the case that you can send out. So, 35 to each party. And that's what we're dealing with as far as a limit. Now, what are some of the benefits of asking interrogatories and trying to get information through interrogatories? Well, you can send them out early in the case. So, for example, in California a plaintiff can serve interrogatories 10 days after they've served the Summons and Complaint on the defendant. And that's the CCP section you see on the slide, 2030.020(b).

   Now, these days in California, and we're in the pandemic at this time, but these days in California, it's taking about two years to get to trial from the date the complaint was filed. Now back years ago in the late eighties, early nineties, California started a process called fast track. And the courts actually were getting cases to trial about a year after filing a complaint, which is very fast for California. Back when I started in 1980, it took five years to get to trial.

   However, in the last four or five years before I'm recording this, the courts have had a lot of budget restraints and budget cuts by the governor and the legislature, and the trials have been going out longer and longer. So, there isn't a timing issue as much, but whenever you have a fairly short time period, like when we used to have one year from filing the complaint to getting it to trial, sometimes it's very important to get out the written discovery early, because you may need all that time. I mean if you think about it, if you send out interrogatories, you have 30 days to respond, five days extra to respond by mail.

   You've already lost one month already, and you've lost a month for serving the complaint, getting a response. You lose another month after you serve your interrogatories. And you can get pretty far along and be almost up to the trial before you know it. So, you can send out interrogatories early if you have a timing issue and that can be very, very helpful. Another benefit about interrogatories, both form and special interrogatories, is they're really good for getting witness information, learning about the identity of the important documents so you can get the documents, and we're really learning about contentions.

   And so interrogatories are a very helpful tool in your arsenal. Now, form interrogatories, which I mentioned earlier, you will want to send these form interrogatories to get basic information that's relevant to the case. And the basic information that is going to be key for your depositions is going to be who are the witnesses? You want to make sure you know who all the percipient witnesses are. And you can learn this information by sending out form interrogatories, no 35 number limit on those. And another thing that can be quite important in a lot of cases is, is there any insurance coverage?

   And in the form interrogatories, one of the things you can learn, there's other things that we'll talk about, but you can learn about insurance. And you want to get this kind of information. Now, if you send out the form interrogatories, one of the benefit of using those, is it's harder for your opponent to object to the form interrogatories. Now, in terms of the types of form interrogatories that are available in California, the Judicial Council has several types. For example, there's a general form interrogatory that you can use in all kinds of civil cases. There is an employment law form interrogatory. There is a construction litigation form interrogatory set, and there's an unlawful detainer form interrogatory set.

   Now, let me give you some ideas about some things you may want to ask for. I'll just talk about the general form interrogatories. So, for example, you'll always want to ask about the background of the individual and that's the 2.0 section, and there's a bunch of questions that go along with that, and you want to ask those. There's a section dealing with business entities and information about them. That's 3.0. You'll want to ask those questions. There's a section about insurance, 4.0, you'll want to ask those questions. Now, if this case deals with some kind of physical, mental, or emotional injuries, not all cases will, you'll want to ask the 6.0 form interrogatories.

   If the case deals with property damage, you'll want to ask 7.0. If there's any loss of income or incapacity, you'll want to ask the 8.0 series of questions. And in case there's other damages that aren't those other types, there is a 9.0 series of questions, you'll want to ask those. In injury cases, you want to find out about medical history. That's the 10.0 series. You'll also want to find out in injury cases, other claims and previous claims. And sometimes this can apply to other cases as well. Then there's a 12.0 series, which is investigation, and you can ask questions about the investigation that they've done.

   There's also a 13.0 section on investigation and surveillance. Now, if you're the plaintiff in a personal injury case, I don't suggest that you send this form interrogatory out initially. But what I would suggest is that you send this question out later in the case, because these couple of questions will help you figure out and learn, has the other party done in each surveillance on your client? And you want to get that information. Now, 14.0 series deals with statutory or regulatory violations, and I think you generally want to ask that information. If you're the plaintiff and you're sending the form interrogatories to the defendant, you may want to wait and not send out the 15.0, which is denials and special or affirmative defenses.

   The reason you want to wait is a lot of times the defense aren't going to give you any information. They're going to say, "Well, it's too early. We're trying to figure stuff out." So you can send the 15.0 later on. Same thing with defense contentions and personal injury cases, 16.0. Generally, it's not going to be productive to send those out initially, because you're going to get all this stuff of, "We're trying to find things out." They're not going to give you any information. But if you wait to send that out, after some time has happened and if you've been conducting some discovery, that can be very helpful to you.

   In 17.0, if you've sent requests for admissions that we'll talk about in a little bit, you should send this question, because then they're going to have to give you some answers regarding that. Now, if it's a car accident, you may want to send out the 20.0 series of questions about how the accident occurred. If there's some kind of a contracted issue, this is the general form interrogatory. You may want to send out the 50.0 set of questions. So, these are examples of the things that you can cover in the form interrogatories.

   And one of the benefits of the form interrogatories, whether it's the general one, the employment, construction, unlawful detainer, is attorneys like to object to discovery requests. You're going to get lots of objections. But it's a lot harder for your opponent to object to Judicial Council approved form interrogatories, because the Judicial Council has said, "Hey, these are all good and you are entitled to get this information."

   So, use the form interrogatories to get a lot of good information. Don't send every form interrogatory checked. Use some form interrogatories that you're going to send later on in the case, that I've gone over, and this is going to help you in terms of getting the information you want. Now you can also send special interrogatories, which we've talked about. And you want to send those also. Remember, you only get 35 of these per party, so you want to send these to get information that's going to be relevant to the case. And you can learn about witnesses, find out who all the witnesses are. You can learn about contentions.

   What are their contentions as far as the various claims that they're making in the case? You can also find out about facts supporting causes of action. So, for example, let's say somebody has alleged five different causes of action. Well, you can just ask in one special interrogatory, "Please state every fact, please identify every fact that supports the allegations in the first cause of action in the complaint." And that's great, because you're going to force him to try to answer this. And so you've only used one question and you can get information about the facts regarding that. Now, in special interrogatories, you want to carefully draft special interrogatories, because you're trying to avoid the objections that you know your opposing counsel is going to make.

   And they're going to give you a lot of objections, so try to carefully think about and carefully draft the special interrogatories. And the goal is to make them so clear and so simple that your opponent really can't make any kind of a valid objection to them. And that's what you want to try to accomplish with that information. Now, all written discovery and this is going to be true with interrogatories and other things that we'll discuss, there are benefits and there are detriments. So, what are some of the detriments of using interrogatories, whether they be form or special interrogatories?

   Well, one of the big detriments of this kind of written discovery is the opposing attorney is going to answer the interrogatories form or special. The client, the party, isn't going to answer them. Even though they will give you a verification, it's really going to be prepared and the answer will come from the attorney. Now, even though the client may have given the attorney the initial draft, you're not going to get that information. You're not going to find out how the client would answer that. You're going to find out how the attorney wants to answer it, and the attorney's goal is often trying to give you as little information as possible.

   So, just realize the attorney, not the client, not the party, is going to answer each interrogatory. And also because it is coming from the attorney and it's in writing, you don't have any ability to assess how this person or party is going to do as a witness. You're going to get information from them, but you really can't assess them as a witness. And that's only going to be something that happens when you take a deposition. So, interrogatories are important to get information so you can take the depositions, and that's why they're important and you want to make sure you do them.

   Now, many, many answers, sometimes all of the answers, but certainly many, many, and very often, most of the answers are not going to be very helpful. Because typically the attorney's goal is to try to give you a response that is not very helpful. Now, out of the rules of discovery in California, that's really not appropriate. You should answer the interrogatory and you should provide the information requested and make sure that you give a complete and accurate answer. But just in reality you need to know that you may not get a lot of helpful answers, because of the approach a lot of attorneys use.

   Now, another detriment to interrogatories is let's say they give you answers and you don't think they're appropriate, you don't think they're responsive, you don't think they're complete. Well, you can get caught up in a lot of time and you can get caught up in spending a lot of money fighting and arguing over these responses and trying to get them to give further responses. And you can lose a lot of time because they're getting 30 days originally and then there's more time, and the weeks turn into weeks and then into months. And then all of a sudden you're near the end of the case and you have too many depos to take a percipient and expert depo.

   So, you can get caught up in wasting a lot of time and money. So, in terms of trying to do these interrogatories and use these interrogatories, the strategy is use the interrogatories form and special early in the case. Not all the form interrogatories, like I mentioned before, save some for a little later. Send out your form interrogatories and your special interrogatories early in the case. And primarily you're sending them out to locate key documents, find out where the documents are and what the documents are, and find out who the witnesses are so you can get ready and then take depositions to depose all of these witnesses, all of these people.

   And that's the key for interrogatories. Get them out early, get the information you need about witnesses and documents, and that's going to be a key to getting you prepared so you can take good effective depositions. The next thing we're going to talk about is going to be request for admissions. This is a great written discovery to tool that you can use also to get the important information you want. The authority in California is Code of Civil Procedure, section 2033.010 et seq. So, in request for admissions, it is similar to interrogatories, because there is a limit of 35 that you can send to each party. And so there's a site, CCP 2033.030(a).

   Now, request for admissions have a number of benefits, and these benefits include that you can get a party to admit a critical issue or a critical fact involved in the case. You can get a party to admit the genuineness of critical documents for the case, and that can be quite important. Also if you've send a request for missions and if they're admitted, any matter admitted is preclusively established against that particular party. And that can be extremely helpful in going to trial and trying your case.

   Now, another benefit that is not as well known is there is a sanctions provision under the request for admissions section. And you can use request for admissions to get attorney's fees or costs if somebody denies a request for admission, and if the trial court, after the trial, determines the denial was unreasonable. So, take a look at Code of Civil Procedures, section 2033.420(a) and (b), and this will give you information about that. So, request for admissions can give you some wonderful benefits. Now, this sanction tool can be very helpful in California, and other states are probably pretty similar. The general American rule is that the prevailing party does not get their attorney's fees, and that's true in California.

   The exceptions to the attorney fee rule of the general English rule is that if there is a contract provision that lets the prevailing party get attorney's fees, you can get fees then, or if there is a statute, you can get attorney's fees then. So, for sample in California law, there are a number of statutes in, for example, employment litigation, with FEHA cases or wage and hour cases, where if you are prevailing party as a plaintiff, you may be able to recover attorney's fees.

   There are attorneys fees statutes and things like lemon law cases and those kinds of things in California. Now, in a case where you don't have any attorney's fees that you can recover, there's no contract provision, there's no statute that gives you fees, a request for admission may be very beneficial. Because if you send a request for admission and ask the party to admit something that's significant in the case, whether it's dealing with liability or other issues in the case, and if they deny it, which they often will, then if you prevail at trial, you have the opportunity if the judge, in their discretion, believes the denial was unreasonable, then you can get an award of attorney's fees.

   So, request for admissions, anytime you have a case where you will not get attorney's fees for your client otherwise, because there's no contract provision, there's no statute, think of request for admissions, because this may give you an opportunity to recover attorney's fees that you would not otherwise be able to get. So, this is a very, very helpful and important tool. So, you need to think about this tool in terms of preparing your written discovery. Now, request for admissions also have detriments, just like they've got positive benefits.

   So, one of the detriments is the opposing attorney, not the party, will answer each request for admission. And the inclination of most attorneys is to try to deny everything as much as possible. Now that can be a double edged sword, because as we just talked about, if they deny something, but if you end up proving it and if the judge thinks their denial was unreasonable, could be liability, could be causation, could be some other issue, then you may be able to get attorney's fees. But the attorney, not the party, will answer the request for admission. So, that's not all that helpful.

   Like with interrogatories, you have no ability to assess how the party will do as a witness, because you're getting the answers in written form from the attorney, not from the party themselves. The party will probably give initial responses to their attorney for their request for admissions, but you're never going to see those. You're going to see the attorney's revised answers to the various requests after taking the initial draft responses from their client.

   Now many responses, just like within interrogatories, will not be very helpful. Most of the time, if the attorneys can, they will want to and they will try to deny each and every request remission. They'll use different reasons for it, but they will try to deny them. Now another detriment is, even though this sanctions provision for unreasonable denial of request for admissions has been on the books for many years, it is still the case that judges can be reluctant to award attorney's fees and costs for denials of request for admission.

   Now, I can tell you about 10 years ago, or a little longer, I tried a case where there was a breach of an oral contract case. And this was a case where I represented the plaintiff. There's no way we had a right to get attorney's fees if we won, no contract that provided for it, no statute. But this was a case where I wanted to try to give the client the opportunity to get fees. And we sent out request admissions, and of course the defense attorney denied them, and we end up proving them. Well, we made the appropriate post-trial motion asking for the sanctions for the denial of the request for admissions and the trial judge in San Diego, which many judges will tend to do in California, denied the request. So, they are reluctant to award fees.

   Now, I can tell you that in more recent years, because that case was about 10 years ago, in more recent years, the last two to three years, I have seen more and more published court of appeal decisions where the trial court actually granted the motion and awarded attorney's fees under the sanctions provision for request for admission. So, this is a tool that I think will become more and more commonly enforced. And so, you ought always be using it in your cases. If you don't have any other way to get attorney's fees, use request for admissions as an opportunity to try to help your client recoup some of the costs of fees and costs of going to trial. Because it can be very expensive, as you know.

   Now with request for admissions, just like within interrogatories, you can get caught up in spending, or wasting, a lot of time and money arguing over whether their responses are complete, whether they're adequate, whether they're proper, whether they need to be supplemented or not. And people can spend lots of time and money filing motions to compel and then fighting over that at. So, remember this is something that you don't want to try to get caught up in spending lots of time. And if you are going to ask for supplemental responses, which is fine, always be looking at the clock. Because if it turns out that you give your opposing counsel a week or two weeks to decide whether to respond, and if you go back and forth after that, and you're giving them more time and more time, before you know it, you may have let several months go by. Now, if you're going to trial within a year, that could be a problem. If you're going to trial within two years you can't let it go too long because it will become a problem at some point. So, be mindful of the time. And even though you're going to try to work things out and see if you can get supplemental responses, don't let an unlimited amount of time go by, because it's going to hurt you.

   And if you're the plaintiff in these cases, since you have the burden of proof, remember the defendants will very often use delay and timing to their benefit. Because since you have the burden of proof as a plaintiff, if they can delay longer and longer and get things pushed closer and closer to trial, at some point, if you let it go too long, then you will have a difficult time finishing your discovery and getting properly prepared for trial. And that only benefits the defense. So, if you're on the defense side, you may want to try to get those benefits. But if you're on the plaintiff side, remember, you can't let too much time go by now.

   So, the strategy of dealing with request for admissions is pretty straightforward. You want to use them to obtain admissions regarding key issues or documents, the authenticity of documents, and you want to use them to get an opportunity, or create an opportunity, to get attorney's fees and costs in situations where you would not otherwise get them. So, this is very important. So, interrogatories, your first formal tool, don't forget informal discovery, but interrogatories, form and special, first tool of written discovery. Request for admissions is your second tool of written discovery.

   And now we're going to go to the next tool of written discovery that you have, and that is the area of request for production of documents. So, with request for production of documents, the authority in California is Code of Civil Procedure, section 2031.010 et seq. So, in your state, if you're not in California, you have to look up whatever your authority is for your request for production of documents, or whatever you call them.

   Now, there are some similarities with request for protection of documents and interrogatories and request for admissions, but there are also some differences. One major difference is, there is no, absolutely no limit on the number of document requests that you can send, which is critical. You want to use request for production of documents to try to make certain that you get the complete universe of all the documents you need to know, and you need to analyze, and you need to master, in order to take effective deposition testimony of percipient witnesses when you're doing that part, earlier on in the case, and later, the expert witnesses. So, you want to make sure you get all the documents, and the fact that there is no limit on the number of documents is a tremendous benefit in this area.

   Now, some other benefits with request for production of documents, they can be sent early. So, similar to interrogatories. And if you look at CCP 2031.020(b), you can send them and serve them before the defendant has answered if you're the plaintiff. And so, you can speed up their time to respond. Similar to interrogatories and request for admissions, the time to respond is 30 days. If you respond by mail, or if you serve it by mail, they get five more days. And there's other time periods if you serve it by email or things like that. So, if you personally serve them, then it's 30 days. If you serve them by mail, it's the 35.

   So, you can send them early in the case, so that they are forced to respond to your request for production of documents not that long after they answered the complaint, and that can be beneficial if your calendar is shorter. So, if you have closer to a year, before you get to trial... In some states, it's even faster than a year. So, think of this from a tactical strategic standpoint. Sometimes, if you have a shorter time period to get to trial, you will need to front load all this written discovery and get it done as soon as possible. And when that's the case, go ahead and send them out early using these kinds of rules, like the California rule of CCP 2031.020 (b).

   Now, with request for production of documents, you can not only get paper documents, but one of the things that has evolved over the recent 20 years or so, is you can get electronically stored information often called ESI. Most documents, really today, are kept in some kind of digital form. And while they may be printed and turned into some kind of a printed form, or while they may be turned into a digital PDF document, most original information in files is ESI information. So, this course is not going to talk about ESI, but there's certainly a huge area of information you need to learn about and master to understand how you will want to properly get all the computer based information and digital information. You can get all the digital information through request for production of documents. And that's something that you want to make sure that you do. And this is another benefit of the request for production of documents.

   Another benefit is you can use the request for production to, let's say you have a real property case and you've got some kind of a boundary dispute, or easement dispute, where you can send request for protection of documents to do an inspection of real property. And that can be very, very helpful and very, very important. But the most important benefit for request for production of documents is that you can use them, and you need to use them, to get all of the key documents, because you need to know of the complete universe of documents relevant to the issues in your case. You need to get them.

   And the way you get them is request for production of documents. But after you get them, you need to analyze them thoroughly, you need to summarize them properly, and have a system of creating a chronology, or whatever you want to do with your summary, so you know exactly where the key information is, where you can find it in the massive documents. And I would recommend you do things like, create PDF files of the various documents, paginate them, and you may want to do that with creating a Bate system for when you're going to produce documents to the other party. But you can use a Bates numbering system in the documents that you are producing, or getting, to also make sure that you can always find the critical document.

   But in analyzing the documents, I suggest that you create a chronology, because a chronology is very powerful, very helpful. You want to know what happened when, and the order of the dates is very important. Sometimes, a lot of critical things happen on one day, maybe within a short time period. And when that's true, now you want to break things down into minutes and hours, so that you know exactly what happened within these so many minutes, or so many seconds, or so many hours on this particular day. So, you need to get all the documents, but it's not enough to get them. Because once you get them, in order to take effective depositions, and before you take the depositions, you need to analyze them and thoroughly understand these documents. Because that's how you're going to take the great depositions that you need to get, depositions you need to take in your case.

   So, you want to send a request for production of documents, because you want to send those to get all relevant documents. Another example is, you remember we talked about the form interrogatories you can get information about insurance coverage. Don't rely only upon the form interrogatory answer. I had the unfortunate experience about 25 years ago of relying upon a form interrogatory answer. And then a couple of months before trial, the defense attorney told me, "Oh, we misread the policy and there's more coverage than we thought." My recommendation is always send a request for production of documents and get the complete policy, including the deck sheet, so you can analyze the coverage issues and understand what's going on. You want to make sure you get copies of all relevant photos, all relevant videos, all relevant recordings, because those things can have huge impacts in these cases.

   And as an example of that, I had a case recently, not too long ago, where it was an employment case, and a former employee was suing my company. And they were claiming that they were wrongfully terminated because of their sexual orientation. We sent out some requests from production of documents and the plaintiff revealed, and produced, that they had recorded conversations with the owners of the company and other employees that they had at the business. Well, in California it's illegal under the penal code to record conversations without somebody's consent. And of course this employee had done that. You know, it's really easy to do with your iPhone. You can just record things, nobody knows you're doing it. And that's pretty much what they did. The problem for the employee was, under California law under the penal code, which I was aware of, there is a $5,000 per violation, civil penalty that can be imposed for an unauthorized, improper recording of a conversation. And this person had recorded about six such conversations. And so, there was about $30,000 there that they were facing as a penalty under the penal code. And it wasn't that far long in the case after we got this information, and I analyzed it, I just pretty much let the plaintiff's attorney know, "Look, we have this information. Your client is violated this penal code section. There are $30,000 of damages that we're going to have to cross complainant and seek. And I'm happy to discuss settlement with you, but any settlement is going to be reduced by the amount your client would owe for this improper recording." And that allowed us to settle the case relatively quickly and with great cost savings for my client. So, getting this information early can be very beneficial.

   Now, with request for production of documents, you can also still spend a lot of time and money, like you can with interrogatories or request for admissions. But with documents it is critical that you need to get all the relevant documents to prepare your case. So, the strategy here is used for request for production of documents early to get all the key documents, so you can prepare for and take depositions of the percipient witnesses.

   Now, let's go to our next written discovery, which is subpoenas. This comes under CCP 1985. This allows for production of documents by non-parties and depositions of non-parties. And the benefits is you can get documents and testimony from non-parties. And this is very helpful. The detriment is you may need to file a motion to compel, if not all the documents that are produced, or all the questions are answered. So, you need to make sure that you understand that.

   Now, the strategy is, you want to use subpoenas when necessary to get documents and information that you need to get from non-parties, and this is essential. Because depositions, as we've talked about at the beginning and throughout this training, depositions are the key. And you want to find out what these non-parties are going to say, because they're going to be critical in terms of the information that they provide.

   So, as we're getting to the end of our session, I want to talk a little bit about suggestions regarding motions to compel. Now, anytime you have problems with written discovery, interrogatories, requests for admissions, requests for production of documents, or subpoenas, you may be able to file a motion to compel. My recommendation, try to avoid motions to compel whenever possible. Talk with your opposing counsel early in the case and tell the opposing counsel, "Look, if we have to file a motion to compel, we're going to let the judge be the umpire, call the balls and the strikes. I'm not going to request sanctions."

   And if you make that known to the opposing counsel, they'll probably agree to do the same with you, and that is really beneficial. You want to make compromises with your opposing counsel to narrow down the information in dispute, and you only need to get what you really need. Most information you can fight over probably won't make a damn bit of difference in the trial.

   So, really understand and analyze your case. Give away by compromising the things you don't really need. And then, if you do have to fight with a motion to compel, only limit it to stuff that's really important. And along with this, don't file a motion to compel if the information in question is not critical. So, the issue here is you want to avoid these motions if you can. And I suggest, when you have meet and confer things, talk to somebody in person, that's the best. It's hard for somebody to be unreasonable when you are face to face. The second best is talk to them on the phone. Because you can hear each other's emotional tones and you have better communication. The least helpful things are to do your communications by email or text, because there's so much you can miss and people can stonewall.

   So, for sanctions and attorney's fees, my recommendation is you try to avoid asking for sanctions if you have to make a motion to compel. And telling you're opposing counsel you're going to do this, because you've tried to resolve it, you haven't been able to do so, and you're going to let the judge call balls and the strikes. You will be amazed at how often your opposing counsel will respond in kind and they won't seek sanctions if you can't work things out with them.

   Now, the benefits of doing this is you're going to have less stress, less animosity. Because look, if you ask for sanctions and get them, the next time they'll want to try to get sanctions against you. It's like this escalating conflict against one another. So, if you don't go for sanctions, now you got to do whatever your firm says, but my recommendation is try to avoid going for sanctions, because your life will be better. Less stress, less animosity, more cooperation of professionalism from opposing counsel during the case. This means your life is better for you and you have a stressful enough life as it is as a civil litigation or trial lawyer. Because you know, everything that you do is very stressful.

   So, these are my suggestions for how you do your written discovery, so you can get ready for taking proper and good depositions. Once again, my name is Monty McIntyre. I'm a mediator, arbitrator, and referee at ADR services. And you'll see a link here at the end of the PowerPoint slides. I also mentor lawyers with Lawyer Master Mentoring. You'll see a link for that. And I publish California case summary. You'll see a link for that.

   So, it's been my pleasure to help you with this training. I wish you all the best. I wish you much abundance and much happiness in your professional and your personal life. Stay safe and stay healthy. Bye bye.

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1h 17s

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