DISCOVERY CASE OUTLINE

© Richard E. Best 1998-2006 All rights reserved

DISCOVERY
HOME
Case
Outlines
DISCOVERY
ACT
New
Matter
CAL. LEGAL
RESOURCES

DISCOVERY
REFEREE

FEDERAL
RESOURCES

B IO & SITE
INFO
CONTACT
E-discovery


MEET & CONFER

STATUTES

CASES

CASE OUTLINE

PRACTICE TIPS & COMMENTARY

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

MEET & CONFER STATUTES

C.C.P. §2016.040 re content of  meet & confer declarations
Extending or Reopening Discovery  C.C.P. §2024.050(a)
Deposition CCP §2025:  .260(a) [distant depo]; 410(c)[quash];  and .420(a) [protective order]; .450(b)(2)[attendance] .480[compel ans.]
Interrogatories CCP §2030.300(b)[further response]
Inspection CCP §2031.310(b)(2)
Admissions CCP §2033.290(b)
Physical exam CCP §2032.250(a)
Protective order limiting discovery CCP §2017.020(a)
Discovery of sexual conduct CCP §2017.220(a)

CALIFORNIA RULES OF COURT

MEET & CONFER CASES

Clement v. Alegre (2009) , 177 Cal.App.4th 1277
Leko v. Connerstone Building Inspection Service (2001), 86 Cal.App.4th 1109
Leach v. Superior Court(1980), 111 Cal.App.3d 902
Manzetti v. Superior Court (1993), 21 Cal.App.4th 373
McElhaney v. Cessna(1982), 134 Cal.App.3d 285
Metrokane, Inc. v. Built NY, Inc.(S.D.N.Y. 2008), 2008 WL 4185865
Neary v. Regents(1986), 185 Cal.App.3d 1136
Obregon v. Superior Court(1998), 67 Cal.App.4th 424
Sobado v. Morago (1987), 189 Cal.App.3d 1
Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006
Townsend v. Superior Court (1998), 61 Cal.App.4th 1431
Volkswagenwerk Aktiengesellshaft v. Superior Court (1981), 122 Cal.App.3d 326 [ Prior CRC Rule 222.1 ]

CASE OUTLINE

INITIATION OF PROCESS

SUFFICIENCY OF EFFORTS TO MEET AND CONFER

SANCTIONS FOR FAILURE TO MEET AND CONFER

DENIAL OF MOTION FOR FAILURE TO MEET & CONFER

NOT REQUIRED IF NO RESPONSES

PRACTICE TIPS & COMMENTARY



INITIATION OF PROCESSMoving party has burden of initiation

Volkswagenwerk Aktiengesellshaft at p. 330 [Moving party has burden of initiation; prior CRC Rule 222.1]

Sobado v. Morago (1987), 189 Cal.App.3d 1, 12 [attorney should attempt to resolve issue re deponent's privilege with opposing counsel even when counsel does not represent the deponent]

Discovery Act provisions require a motion to be accompanied by a declaration showing a reasonable and good faith attempt at an informal resolution of each issue.


SUFFICIENCY OF MEET AND CONFER EFFORTS

Leko v. Connerstone Building Inspection Service (2001), 86 Cal.App.4th 1109 [Depo no show due to mistake and misunderstanding; notification day prior to depo, apology and offer to reschedule; party noticing depo refused to confer or reset, made motion to compel and sent unpleasant letters to deponent's counsel; motion to compel attendance denied and attorney noticing depo and making motion was sanctioned for conduct per CCP2023(a)(9) and (a)(3); Aff'd. Court found that implicit in the obligation to contact a person who fails to appear is an obligation to resolve the issue without a motion. There appeared to be no justification for failing and refusing to reset the deposition without making a motion.

Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [ Look to all circumstances to determine adequacy including complexity of issue, likelihood of resolution, urgency . Off the record discussion of simple deposition issue sufficed when parties were firm on position. ] Quoting the Obregon case, the court stated:

 "The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain 'an informal resolution of each issue.' (§ 2025, subd. (o) ....) This rule is designed 'to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order....' [citation] This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. [Citations.]" [citations]
"A determination of whether an attempt at informal resolution is adequate ... involves the exercise of discretion. The level of effort at informal resolution which satisfies the 'reasonable and good faith attempt' standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant. Judges have broad powers and responsibility to determine what measure and procedures are appropriate in varying circumstances." (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431 [79 Cal.Rptr.2d 62].) "A trial judge's perceptions on such matters, inherently factual in nature at least in part, must not be lightly disturbed." (Ibid.)

Obregon v. Superior Court(1998) [2 page letter 13 days before deadline for motion inadequate]
Townsend v. Superior Court (1998) [argument at depo insufficient]
Volkswagenwerk Aktiengesellshaft at p. 333 [ Phone call by paralegal without authority and 2 uncompleted phone calls by atty. 25 days after answers to interrogs served were insufficient efforts to meet and confer.]

Manzetti v. Superior Court (1993), 21 Cal.App.4th 373, 379-80 [matters clarified or modified in meet and confer sessions should not be the basis for later objections to discovery; after disregarding a proposed protective order, a party can't raise the lack of a protective order as a basis for opposing the discovery; in fn8 the court stated, "Counsel are obligated to engage in this process in good faith and cannot reject reasonable proposals without suffering the consequences... It is implicit that one of the purposes of [meet and confer] is to informally expedite litigation without requiring the parties to refile discovery when negotiations can resolve any disputes over what is intended or required."

Liebel-Flarsheim Co. v. Medrad Inc. (S.D.Ohio,2006),  Slip Copy, 2006 WL 335846
"The Court's understanding of the phrase “meet and confer” is a conference in which opposing parties actually talk to one another. The Court notes that other federal districts have explicitly defined “meet and confer” as a personal or face-to-face communication or conference. See, e.g., N.D. Cal. Local Rule 1-5(n):
“Meet and confer” or “confer” means to communicate directly and discuss in good faith the issue(s) required under the particular Rule or order. Unless these Local Rules otherwise provide or a Judge otherwise orders, such communication may take place by telephone. The mere sending of a written, electronic, or voice-mail communication, however, does not satisfy a requirement to “meet and confer” or to “confer.” Rather, this requirement can be satisfied only through direct dialogue and discussion-either in a face to face meeting or in a telephone conversation.
See also, S.D. Cal. Civil L.R. 16.5, stating in part that “[U]nder no circumstances may counsel satisfy the ‘meet and confer’ obligation by written correspondence.”

cases
case outline

SANCTIONS FOR FAILURETO MEET AND CONFER

C.C.P. §2023.020
Obregon v. Superior Court(1998) [monetary sanctions approved in dictum; tr ct ordered to consider sanctions less than denial of discovery]
McElhaney v. Cessna(1982), [sanctions must be appropriate to delict; dismissal for failure to comply with meet and confer order excessive]
Volkswagenwerk Aktiengesellshaft
Liberty Mutual Fire Ins. Co. v. LCL Administrators, Inc. (2008) ,  163 Cal.App.4th 1093  Terminating and monetary sanctions for “vacuous, meaningless responses” to “straightforward interrogatories [form interrogatory 15.1 and similar special interrogatories], asking for witnesses, documents and evidence to support... affirmative defenses and cross-claims” and the subsequent default judgment were affirmed. The trial and appellate courts relied on responding party's  failures to meet and confer to support a finding of willfulness and as an independent basis for awarding sanctions.

cases



DENIAL OF MOTION FOR FAILURE TO MEET & CONFER

Obregon v. Superior Court(1998) [tr ct ordered to consider less severe sanction]
Townsend v. Superior Court (1998)[tr ct acting "in excess of jurisdiction"w/o M&C]
Neary v. Regents (1986) [Tr Ct denied motion for failure to meet & confer pursuant to Rule 335 though that was not an issue on appeal]
Volkswagenwerk Aktiengesellshaft at p.331[ prior law]
Metrokane, Inc. v. Built NY, Inc.(S.D.N.Y. 2008), 2008 WL 4185865  Meet and confer rule not enforced on a motion seeking preclusion sanctions and terminating sanctions because "it would have been futile."

case outline

NOT REQUIRED IF NO RESPONSE

Leach v. Superior Court (1980) [former CRC Rule 222.1 doesn't apply when there is a total failure to respond; no issues to resolve if there is no response]

Deposition "no show":

C.C.P. §2025.450(b)(2) motion must be accompanied by "a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance".
Leko v. Connerstone Building Inspection Service (2001), 86 Cal.App.4th 1109, 1124. "Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue." Sanctions awarded pursuant to former C.C.P. §2023(a)(3) & (9) now §2023.010  affirmed.

Metrokane, Inc. v. Built NY, Inc.(S.D.N.Y. 2008), 2008 WL 4185865  Meet and confer rule not enforced on a motion seeking preclusion sanctions and terminating sanctions because "it would have been futile."

NOT REQUIRED TO GIVE UP REASONABLE POSITION

Clement v. Alegre (2009) , 177 Cal.App.4th 1277 [No. A123168. First Dist., Div. Two. Sep. 23, 2009.] Sanctions for "meritless" and "nitpicking" objections. While suggesting both sides might have tried harder to resolve the issues, the appellate court accepted the trial court's conclusion that the parties were at an impasse and noted, That [moving party] refused to be bullied into re-writing adequate interrogatories and extending more time for responses does not constitute a failure to {Slip Opn. Page 18} meet and confer...."

cases
case outline


PRACTICE TIPS & COMMENTARY

Discovery is supposed to be self executing. Many discovery motions should not be in court and they result from a breakdown in the process that can be avoided by counsel. The meet and confer process is the single most important element in reducing the nature and extent of discovery disputes and in controlling the expenses of discovery. It should not be conducted in a pro forma or perfunctory manner. It requires good faith negotiation and often involves compromises by both sides. Counsel should present their positions in the same manner they would in court---citing cases, showing how the information is relevant,etc. Often the process is best initiated by a letter setting forth in detail the position of the party seeking the material---not just a demand. It should be commenced in a timely fashion and provide for adequate time to respond, to reply and to discuss in person or by telephone. See the Obregon case. Obviously, some matters must be resolved by the courts and counsel are not expected to compromise the rights of their clients.

C.C.P. §2023.020 provides for monetary sanctions for failure to meet and confer in good faith regardless of the outcome of the motion. However, the meet and confer requirement should not be used as a means or tactic to avoid a meritorious motion or to avoid or delay proper discovery. In Professional Career Colleges Magna Inst. v. Superior Court (1989), 207 Cal.App.3d 490, 493 in discussing the pattern of the discovery act including the meet and confer provisions, the court noted at page 493:"This pattern of restrictions, sanctions, and the attempt to force
cooperation clearly evinces the legislative intent that discovery proceed not only smoothly, but swiftly as well." [the case concerned the need to timely move for a court order, but the language is instructive.]

Even when counsel are not required to meet and confer, the practice can save money, avoid motions, and improve relations between counsel. Why not make a phone call rather than a motion if the same objective can be attained in that manner? At the vary least, your meet and confer efforts will further support your request for sanctions if you have to make that motion.