Legislation won’t fix broken discovery process

I read with interest State Sen. Thomas Umberg's column on Senate Bill 17 aimed at mitigating gamesmanship in civil litigation. ["Document production games run amok"]. Although I believe Sen. Umberg's proposal will be helpful, it does not go far enough. Perhaps the following example (which is only somewhat fictional) is explanatory.

After filing a large civil action for fraud, we pursued discovery from the defendant. After the defendant obtained a 60-day extension to respond (as suggested by the Los Angeles County Superior court's "Civility Guidelines" (first requests for reasonable extensions of time to respond to litigation deadlines, whether relating to pleadings, discovery or motions, should ordinarily be granted as a matter of courtesy..."), we received responses that contained only objections. After complying with Code of Civil Procedure Section 2016.040's requirement that we make a "reasonable and good faith attempt at an informal resolution," which took an additional 30 days and was unsuccessful, we were next required to calendar an Informal Discovery Conference with the court before filing a motion to compel further responses. The conference was not scheduled for 30 more days. And although the defendant agreed to supplement his responses at the conference, another 60 days passed. When we finally received supplemental responses from the defendant, they contained more objections and only limited responses. Of course, we needed to meet and confer once again. When this proved pointless, we prepared a motion to compel, only to learn that the hearing date on the motion was set for nine months away.

Our only remedy was to file an ex parte application to advance the hearing date on the motion. The defendant opposed the ex parte, claiming he was willing to supplement his responses. The court gave them defendant additional 60 days to do so. Of course, the supplemental responses were still unsatisfactory. We had to amend our motion and separate statement to list the second amended supplemental responses. We also had to go back into court to advance the hearing on our motion, which was finally set for 60 days in the future.

The good news -- the motion was granted. The court gave us a whopping $750 in sanctions (which covered about one-twentieth of the time spent on the motion and the various meet and confer conferences), and ordered further responses to be served in 60 days. Of course, by the time we received those responses, we had run into the presumed one-year trial setting period and could not do any of the necessary follow up discovery.

In short, the system is broken. If a defendant is willing to spend the time and effort to avoid making meaningful discovery responses, no legislation will be sufficient unless the courts are willing to take an aggressive posture to curtail discovery abuses. This includes awarding meaningful sanctions, both monetary and non-monetary, and making the court available to hear motions on a timely basis.

-- Richard Leonard

Leonard, Dicker & Schreiber LLP