Court Declines to Make the Dumbest Rule in the Discovery Act Even Dumber

Pollock v. Superior Court, No. B321229 (D2d1 Jul. 31, 2023)

Back in 2019, the Legislature amended Code of Civil Procedure § 2031.280 to include a requirement that a party producing documents must identify the specific demand number they are responsive to. Which perhaps makes sense if you are the kind of lawyer who handles cases where the total amount of discovery is a couple hundred pages. But in modern complex litigation with substantial e-discovery—where parties propound scores of RFPs and document discovery can easily run to the hundreds of thousands or even millions of pages—it’s completely insane. Fortunately, there’s sort of an unspoken detente in biglaw world that nobody is going to follow this rule. (If someone tried to make me, I’d move for a protective order.)

Without waiting for any RFPs, Plaintiffs’ Counsel in this dependent adult elder abuse case unilaterally produced about 1,500 pages of stuff. The Bates numbers lined up to her various clients. She didn’t identify which RFPs the files were responsive for the obvious reason that no RFPs had been propounded yet. Defendant eventually got around to that and subsequently filed a motion to compel on the ground that Plaintiffs’ responses didn’t identify what documents were responsive to what requests. The motion was pending for a long time. And during the interregnum, Plaintiffs lawyer produced a chart lining up the documents with the RFPs. That, apparently, was still not good enough. The trial court ultimately granted the motion to compel and issued a $910 sanction against one plaintiff and Counsel for the trouble. Plaintiff took a writ.

The Court of Appeal sensibly notes that there is a difference between the written response to a document demand and an actual production of documents. Often they don’t even happen on the same date. (§ 2031.280(b) says they are supposed to unless there’s an objection to the date. But objections are pretty cheap to make.) The form and content of the response is governed by §§ 2031.210-.270. The production is governed by § 2031.280. The requirement to identify RFPs to which produced documents are responsive is in the latter. So there’s no requirement that the identification be set out in the responses.

Writ granted.

20 Days to Move on a Consumer

Thai v. Richmond City Center, No. G060823 (D4f3 Dec. 12, 2022)

One of the weird things about the Code of Civil Procedure is that there are two overlapping sets of statutes that deal with third party discovery. There are the third party discovery provisions of the Civil Discovery Act—Code Civ. Proc. §§ 2020.110-2020.440—which denote all third party discovery as “depositions” and deal with records, testimony, and records and testimony subpoenas. Then there are an older set of statutes in the “of the production of evidence” title, which are addressed to both discovery and trial subpoenas. See §§ 1985-1997. For some reason, nobody bothered to harmonize these when the Discovery Act was passed. And even more confusingly, the legislature continues to amend the older provisions without re-codifying them. Sometimes, they created contradictory requirements. This case points to one of them.

The older statutes have some requirements for when a consumer’s personal records are sought through a subpoena duces tecum. See § 1985.3. The require notice to the consumer, who has an opportunity to object, which stays compliance with the subpoena. If an objection is made, the party serving the subpoena can only obtain the records by filing a motion to compel. That motion needs to be filed within 20 days. § 1985.3(g).

But under the Discovery Act, third party records can be obtained through a so-called “records only” deposition subpoena. § 2020.410. As with any deposition, the deponent can object to the form of the notice, but that alone does not stay the obligation to comply. § 2025.410. If the records aren’t produced, the noticing party can file a motion to compel. It has 60 days to do so. § 2025.480(b). Case law says the 60 days starts to run from the service of objections. 

Here, Plaintiff is suing Defendant over the purchase of Defendant's interest in a Partnership they co-owned. Plaintiff served subpoenas with testimony and records and records only demands on Partnership’s accountant and property manager that sought certain consumer records belonging to Partnership. Partnership objected. About 55 days later, Plaintiff filed a motion to compel. The court granted the motion and Partnership appealed.

The motion is timely under the 60 days but untimely under the 20. The question, then, is which deadline applies: the 20 days under § 1985.3(g) or the 60 under § 2025.480(b)? Relying on the structure of the statutes, their legislative history, and the canon that the specific controls over the general, the court finds that the 20 days applies.

Reversed.

 

Money Too.

Kwan Software Eng’g, Inc. v. Hennings, No. H042715 (D6 Dec. 2, 2020)

After a years-long record of fraud on the court, false testimony, and spoliation of evidence, the trial court dismissed Plaintiffs complaint in this case as a terminating sanction. It declined, however, to award Defendants’ monetary sanctions under the discovery act. As we recently discussed, the Discovery Act requires an award of monetary sanctions as compensation in the form of reasonable costs unless the non-prevailing party was substantially justified or an award would be unjust. See Code Civ. Proc. § 2023.030(a). 

In the course of issuing terminating sanctions, the trial court made findings from which it is clear that a substantial justification was not present. Nor would it be unjust—that other sanctions were awarded did not render it unjust to also require plaintiffs to compensate Defendants for the increase expense incurred as a result of Plaintiffs’ discovery misconduct. So the trial court abused its discretion by not awarding monetary sanctions.

Sanctions were not merited, however, against Plaintiffs’ former attorneys. The record established that that the attorneys had not “advised” their clients to engage in discovery abuse, which precludes any award under § 2033.030(a).

Reversed in part.