FOUR TIPS FOR CONDUCTING DISCOVERY IN CIVIL LITIGATION, UNDER PRESSURE

 

 

For the past couple of years, the Superior Courts in Los Angeles County, in which civil lawsuits are filed, have been in crisis due to a severe shortage of funds. The County has closed numerous branch courts and thinned the ranks of judges, requiring much consolidation and slowing of the courts’ work. We litigators and trial lawyers who ply our trade in these courts have experienced some significant changes in how the law business is done. Those changes have strained not only the hard-working judicial officers and their staffs; the lawyers, too, have a more onerous burden than before.

          One of the areas where we experience the increased burden is in the conduct of “discovery”—the all-important fact-finding process between the filing of a complaint and final preparation for trial. This is usually when the most trial-preparation is done and the most time is spent. When opposing attorneys act in good faith and don’t aim to avoid making discovery to the other side, the process is smooth. But lawyers often make it as difficult as possible to obtain discovery from them. When they obstruct by delaying, improperly objecting, and otherwise hiding the ball—they can make litigation inordinately expensive, frustrating, and unpleasant.

          Before the court crisis, parties attempting to obtain discovery from obstreperous opponents could leisurely remedy the situation by making motions to compel discovery responses, as long as they didn’t mind paying substantial legal fees. The courts generally set trials for a year from the date the complaint was filed, so, with about three weeks’ notice being given before the discovery motion hearing, there was plenty of time to pursue errant opponents. The recent crisis has added a new burden: It now can take many months to get a hearing on a motion to compel. This is a problem because the courts generally still set the trial for a year from the complaint filing, leaving little time to fight about discovery matters. Unless lawyers follow an approach to resolve discovery disputes quickly, they will find themselves either (1) not getting the discovery they need to prepare their case, or (2) having to wait a very long time to obtain it, or (3) having their trial postponed till a distant time. While defendants usually are keen to delay, plaintiffs generally want to get to trial as soon as they can, since justice delayed is justice denied. Here are some useful tips to enable you to get the discovery you seek at minimal cost, while increasing the odds of getting to trial on time.

1. Make a plan early.

          It is crucial to develop a discovery plan as early as possible. Too many attorneys play it by ear instead of devising a schedule; that often results in too much time’s elapsing between the use of various vehicles, then rushing under tremendous pressure to complete discovery and seek court orders against recalcitrant opponents.. Making a plan will keep you on track to generate the discovery in good time.

2. Send discovery quickly.

          You must propound your discovery pronto. Gone are the days when we could sit back and take our time preparing for trial. The long lead time to motion hearings precludes relaxing in our pursuit of discovery since motions could be heard and orders received with only three weeks’ notice. Of course, strategy and tactics often dictate the timing for interrogatories, document demands, requests for admission, and, depositions. But the asking party has the burden to seek a court order for discovery; the time pressures could well deprive counsel of that remedy.

3. Aggressively seek proper responses.

          It is critical to aggressively pursue further discovery responses after you receive inadequate ones. In olden days there was no hurry to go after those responses; counsel had 45 days to make a motion to compel, so the Code-mandated “meet and confer” process, a condition precedent for such a motion, need not have been undertaken so quickly. Now, though, attentive counsel do not have the luxury of waiting weeks to communicate with the other side, to determine whether further responses will be forthcoming, to evaluate them when they arrive, and then to make a motion—which may not be heard for many months.

          Accordingly, you should evaluate discovery responses soon after they arrive, and immediately conduct any needed informal effort to get better responses. In easier times, counsel might allow weeks to pass before making a motion if one was needed; nowadays, though, time is of the essence, and opposing counsel should be given a short leash to provide better discovery or face a motion to compel. If he or she does not comply, then the propounder should file the motion with all deliberate speed. Not only will he or she be more likely to get the motion heard timely, but also counsel will impress the court with his or her diligence, which always benefits the client. Diligent counsel are much more likely to have favors granted by the court--such as being given additional time to undertake discovery--than counsel who are perceived to be flies in the ointment. Another distinct advantage of this show of seriousness is that it signals to your opponent, early on, that you will not blithely accept bad-faith litigating tactics; the result will likely be fewer such tactics plaguing your lawsuit.

4. Keep good records of the process.

          Be sure to document your efforts to obtain discovery from the other side, and your efforts to cooperate. All agreements and important discussions should be documented at least by email. When you make an offer or respond to one by the other side, shoot out an email that confirms what occurred. This practice will enable you to recall the facts and circumstances long after you’ve forgotten them, and they will often ensure your ability to quickly compose supporting declarations for your motions. The court will appreciate being able to rely on written proof rather than less reliable “he said, she said” evidence.

          You may do all of the foregoing, be well-organized, and act in good faith, and you may still not be able to complete discovery by the 30-day pre-trial discovery cut-off. Quite often the law-and-motion process takes so long (I have filed discovery motions that took 8 months to be heard) that your best efforts can’t avoid a continuance of the trial date. Indeed, I have had counsel purposely provide useless discovery responses, thereby forcing me to make several motions that would ensure a change of trial date. When that happens, if it is important to get to trial quickly, and if you can make do without the discovery, then it might be worthwhile to forgo the discovery. If, on the other hand, the discovery is necessary (if it isn’t, why did you bother to propound it?), then you will likely choose to pursue it at the cost of a continued trial.

          In the final analysis, the pressure serves the useful purpose of compelling counsel to plot out their discovery early and carefully, to propound only the discovery that is essential, and then to go after proper responses efficiently. One long-run benefit may be that the often-rambling and uncoordinated discovery process will become more user-friendly and beneficial at trial, and less expensive to boot.

 

William Dickerman, the principal attorney of Dickerman & Associates, has been litigating business, real estate, and other commercial and personal lawsuits for over 30 years in and around Los Angeles. For more information, go to www.dickermanlaw.com. This article is not meant to constitute legal advice; please consult and rely only on competent counsel after a thorough review of your individual circumstances.

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