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Meet & Confer in California Civil Cases, for Plaintiffs

⁠

SUMMARY

This article on meet & confer, after receiving incomplete or evasive discovery responses is aimed at attorneys, and largely plaintiffs’ attorneys. This article lays out the authority and meaning for meet & confer, as well as motions and sanctions, the strategies to employ, and the basic authority overcoming objections.

Summarizing, three written meet & confers, with only one telephone meet & confer, which merely asks for compliance so as not to force a motion and avoiding substantive discussion, followed by a confirming email is best practice for my law firm. “Educate” the opposition on the basics that disclosure is favored, if an objection is only partial, the remainder shall be answered, unverified responses are tantamount to no responses, there is no basis for premature, and the party resisting discovery bears the burden of refusing to respond on facts. Ultimately, the purpose of meet & confer is to compare, discuss in a good faith attempt to avoid a motion.

Within the context of prosecuting an affirmative civil claim, the purpose of meet & confer, within a discovery pursuit is to obtain evidence, but, also prevent a defendant from being able to admit unproduced evidence in the future, or create vagueness and ambiguity to defeat an essential element.

Details follow.

PREVIEW OF THE MOST FUNDAMENTAL CITATIONS

Unverified responses are tantamount to no responses. [

Appleton⁠

v. Superior Court (1988) 206 Cal.App.3d 632, 636].

The law favors disclosure [

Greyhound⁠

(1961) 56 Cal.2d 355, 375-376];

The party resisting discovery bears the burden of proving that refusal to respond is justified, on facts [

Durst⁠

v. Superior Cout of Los Angeles County (1963) 218 Cal.App.2d 460, 468 and

Coriell⁠

v. Superior Court (1974) 39 Cal.App 3d 487, 489];

If only a part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered. Code of Civil procedure sections

2030.240⁠

(a) [ROGS];

2031.240⁠

(a) [DOCS]; and

2033.220⁠

(a) [RFAs]

Premature has no basis in law and “...the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” Code of Civil Procedure section

2019.020⁠

There is no rule holding that responding should not be burdensome. [

Sigerseth⁠

v. Superior Court (1972) 23 Cal.App. 3d 427, 433].

A motion is the proper means for testing the objection. [

Columbia Broadcasting⁠

System, Inc. v. Superior Court of Los Angeles County (1968) 263 Cal.App.2d 12, 16];

Under California law, meet & confer means that counsel attempt to talk the matter over, compare their views, consult, and deliberate, with a goal of resolving the discovery dispute informally, without court intervention. [

Townsend⁠

v. Superior Court (1998) 61 Cal.App.4th 1431, 1439;

Clement⁠

v. Alegre (2009) 177 Cal.App.4th 1277, 1294].

Ultimately, failure to adduce responses to relevant requests that were properly sought in discovery should result in exclusion of the underlying evidence that propounding party had sought in responding party’s opposition. [

Thoren⁠

v. Johnston & Washer (1972) 29 Cal. App. 3d 270, 274-275].

DETAILS

Discovery is Time-Consuming, and Unpleasant, By Design

Discovery practice is widely reviled. For good reason. Quality requests and responses are difficult to draft. Defendants are motivated to evade discovery. Defense counsel and the courts are biased against providing or enforcing rules requiring straightforward, complete, and truthful responses.

Generally, the strategy and tactics of discovery by defendants is to consume significant time attempting to deny meaningful discovery responses. As part of this strategy, Defense Counsel are usually obtuse, saccharine, and either intentionally or subconsciously will attempt to provoke discourtesy, in order to use it to distract the court that defense is evading discovery.

All of this is for very good reason. Defense counsel is paid hourly, while most plaintiffs’ counsel work on contingency. Hence, part of defense strategy generally has nothing to do with the case, but, is really just a larger business practice, often driven by insurance companies, who are the large payors in civil cases. The purposes of this business practice are to delay paying, and earn interest on the money during the delay, as well as to slow down and dissuade more cases from being filed. As for the value to the defense of the case, the less certain the plaintiff is that the evidence will prevail, the less the case will settle for and/or the more likely the defendant will win.

Furthermore, the practice of discovery evasion is either expressly or tacitly encouraged by judges.

Again, judges have good reasons for not assisting plaintiffs in discovery. First and foremost, in attempting to appear impartial, it is my experience that a judge must always take an action or make a comment against the moving party. This is to discourage parties from coming to court. As to plaintiffs, in my experience, the practice seems more prevalent. I suspect this is because in general, it is plaintiffs who are wronged, and defendants who are attempting to evade justice, to reduce damages or prolong being subjected to redress, again through evasion. The court simply does not want to encourage litigants to come to the court and make the court do what it is supposedly paid to do.

The California Legislature has codified the disfavor of discovery motions, by placing the burden squarely on the parties, by requiring meet & confer. As a practical matter, this places the burden on a plaintiff, because the defendant merely needs to cast sufficient doubt on any one essential element to prevail, thereby strongly motivating obfuscation and evasion.

Meet & confer - Concise, written, 3-Strikes, with only the final mentioning motion & sanctions for notice only

When a propounding party receives responses that are not code-compliant, the goal should be to either (1) get the evidence that helps the case, but (2) also to foreclose the defendant from being able to admit supplemental or contradictory evidence at trial or on dispositive motion later.

Prior to motioning for [further] responses, the parties are required to meet & confer to attempt in good faith to informally resolve the discovery dispute without court intervention. Code of Civil Procedure sections

2016.040⁠

2030.300⁠

(b)(1) [ROGS],

2031.310⁠

(b)(2) [DOCS], and

2033.290⁠

(b)(1).

As a general strategy, the meet & confer should be concise, and go for the three strikes & you're out rule, meaning, only three written meet & confer writings are best, with the final one being the only one to mention the right to motion under the sections stated above, subdivision a, and monetary sanctions [CCP sections

2030.310⁠

(d),

2031.310⁠

(d) and

2031.320⁠

(b) and

2033.290⁠

(d). The standard is without good cause and sanctions are disfavored. So, in meet & confer, mention these only in the final communication, for due process notice purposes, and expressly state that you do not want to motion, and the mention is only for that due process notice purpose.

By the second meet & confer, it may be useful to reiterate the opposition, and maybe even create a table comparing the views, with a third column proving what you think the resolution should be. If applicable, you may want to ask defense counsel if they are really attempting in good faith to informally resolve the matter without court intervention.

Townsend⁠

v. Superior Court (1998) 61 Cal.App.4th 1431, 1439;

Clement⁠

v. Alegre (2009) 177 Cal.App.4th 1277, 1294].

In my experience, telephone meet & confer is not particularly useful. Defendant’s purpose is to evade, and in my experience, defense counsel never accurately recounts the substantive gist of what was empirically said, anyway. In any case, make sure to document what was said on any oral meet & confer immediately after in email. In my opinion, the best use of a discovery oral meet & confer is after the third & final written meet & confer, and nothing more than a request that defendant serve code-compliant responses so they don’t force you to motion, and evading discussing the substance, because it is all documented in the written meet & confer, anyway.

Key Law and Citations

Unverified responses are tantamount to no responses. [

Appleton⁠

v. Superior Court (1988) 206 Cal.App.3d 632, 636].

The law favors disclosure [

Greyhound⁠

(1961) 56 Cal.2d 355, 375-376];

The party resisting discovery bears the burden of proving that refusal to respond is justified, on facts [

Durst⁠

v. Superior Cout of Los Angeles County (1963) 218 Cal.App.2d 460, 468 and

Coriell⁠

v. Superior Court (1974) 39 Cal.App 3d 487, 489];

If only a part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered. Code of Civil procedure sections

2030.240⁠

(a) [ROGS];

2031.240⁠

(a) [DOCS]; and

2033.220⁠

(a) [RFAs]

2019.020⁠

There is no rule holding that responding should not be burdensome. [

Sigerseth⁠

v. Superior Court (1972) 23 Cal.App. 3d 427, 433].

A motion is the proper means for testing the objection. [

Columbia Broadcasting⁠

System, Inc. v. Superior Court of Los Angeles County (1968) 263 Cal.App.2d 12, 16];

Townsend⁠

v. Superior Court (1998) 61 Cal.App.4th 1431, 1439;

Clement⁠

v. Alegre (2009) 177 Cal.App.4th 1277, 1294].

Thoren⁠

v. Johnston & Washer (1972) 29 Cal. App. 3d 270, 274-275].

CONCLUSION

Discovery is time-consuming and frustrating, almost by design.

A plaintiff’s strategy should be to get whatever can be compelled, attempt to get anything useful, and use the meet & confer, and if necessary, motion procedure to foreclose the opposition from using vagueness and ambiguity to prevent proof of an element on disposition, or committing unfair surprise later.

Having your model documents, and authority ready to go, is a good start to achieving those objectives, with the least amount of time.

SUMMARY

PREVIEW OF THE MOST FUNDAMENTAL CITATIONS

DETAILS

Discovery is Time-Consuming, and Unpleasant, By Design

Meet & confer - Concise, written, 3-Strikes, with only the final mentioning motion & sanctions for notice only

Key Law and Citations

CONCLUSION

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