As discussed in our article on American Litigation, discovery is a unique aspect of litigation in the United States that is a tool that often decides the outcome of the litigation. By means of demands for production of documents, written questions submitted (interrogatories and Requests for Admissions) and depositions (oral examination under oath before a reporter) the typical litigator in the United States will spend a hundred hours conducting discovery for every hour spent in the court room.
One famous judge quipped that our system of law has made attorneys experts in discovery rather than experts at trial. Since over ninety percent of cases settle before trial, this is a viable claim. Discovery is not only what most attorneys do most of the time; it is also the tool by which most cases are decided. Admissions under oath in depositions or document produced which can destroy a case quite often are the weapons used by counsel in settlement talks and conferences which decide the scope and amount of the settlement. Discovery decides most cases.
It is thus not surprising that most attorneys engage in wholesale discovery, hoping to find the document or admission that will decide the case. Paid by the hour, and with forms ready at hand, the typical litigator can grind out massive amounts of demands for documents, interrogatories, requests for admissions, and subpoenas for depositions with a few clicks of the mouse and the witness or party finds him or herself faced with massive loss of time in seeking to respond to what may be unreasonable demands.
The courts have recognized this danger and some have limited the total discovery available in a litigation (arbitration often has none whatsoever) and have also provided for some limited relief for a party or witness who feels that the discovery demands have become overly burdensome and unfair.
Courts do want to allow broad discovery. A party has a right to seek evidence. It is the balancing of the right to discovery with the right to avoid unfair burdens that is the essence of the typical struggle as to the scope of allowed discovery.
This article shall discuss the relief that is available.
RIGHT TO INQUIRE VERSUS RIGHT TO AVOID OPPRESSION
A party who feels they are subject to unreasonable demands can refuse to answer and the court (or, more commonly, a commissioner appointed by the Court) will determine what relief is available. The process for objecting and enforcing discovery has rigid time lines and criteria and the commissioner can impose sanctions if the commissioner feels a party is improperly refusing to answer questions or misusing the discovery tools.
Courts vary widely in the use of such sanctions, but they can range from fines imposed to actual dismissal of an entire action or defense. The courts dislike “discovery fights” but are used to confronting them on a daily basis. The fights can be more expensive than actually complying with discovery, and the attorneys fees may or may not be awarded to the prevailing party in such disputes…and are often awarded but not in the amount often expended for the actual fight.
It is therefore important to engage in a concrete cost benefit analysis for each discovery fight. As discussed in our article Buying Justice, litigation is as much a money game as a tactics game and resources expended in discovery contests must be factored into the overall budget available for both your own case and your opponent’s case. Such fights may be necessary and may be useful…but should not be undertaken out of mere annoyance.
It is also possible to obtain various protective orders to avoid having to disclose sensitive information or trade secrets to an opponent and courts do not hesitate to impose such restrictions upon good showing of need.
All courts now require counsel to “meet and confer” to attempt to resolve discovery disputes prior to filing motions and some courts consider failure to engage in good faith meetings as allowing sanctions. Often such meetings can eliminate some problems and protective orders are often stipulated to after a few telephone calls.
But it remains a fact of American litigation that discovery battles form an inherent part of most cases.
The law that applies is general in nature and gives the court wide discretion in determining what discovery is appropriate within the guidelines laid out below.
1. Discovery- Inappropriately burdensome demands
Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved if the matter is itself admissible in evidence or appears reasonably calculated to lead to admissible evidence CCP §2017.010
Relevancy may vary with size and complexity of the case and must be considered with regard to the burden and value of the information sought (among other factors) See Bridgestone/Firestone, Inc. v. Sup Ct. (Rios) (1992) 7 CA4th 1384, 1391.
Unduly burdensome requests are a misuse of the discovery process
Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression or undue burden and expense is one of the examples of misuses of the discovery process. CCP §2023.010
While “fishing trips” are permissible in discovery, the court may intervene to control discovery requests that:
contains insufficient identification of the requested info to acquaint the other party with the nature of info desired
attempts to place the burden and cost of supplying info equally available to both solely on the adversary
places more burden on the adversary than the value of the information warrants Greyhound Corp. v. Sup Ct (Clay) 56 C2d at 384-385
According to CCP 2019.030, the court shall restrict the frequency of extent of use of a particular discovery method if it determines that
· the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome or less expensive.
· the selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy and the importance of the issues at stake in the litigation.
The objections most likely to be sustained in response to a discovery demand are:
Beyond the scope of permissible discovery (not relevant to the subject matter or likely to lead to the discovery of admissible evidence.)
Privilege, work product or right of privacy
Oppressive and burdensome (i.e. compliance would be unreasonably difficult and expensive.)
2. Courts Want Discovery to Proceed.
A party suddenly realizing that they will spend a weekend or many nights pouring over old documents and must face days or weeks being examined under oath in deposition often reacts with surprise and anger to the inconvenience. While they are capable of imposing the same burden on the opposing parties, it goes against the grain to be forced to comply with the time and expense of discovery.
The courts feel that discovery is not only a right given to each party, but can act to cut short litigation if the right facts are disclosed or reduce the time spent in actual trial. Often the courts, using discovery results, will demand that the parties stipulate to agreed upon facts derived from discovery and motions to dismiss or motions for summary judgment can be based on the results of discovery.
As one Judge put it to a party, “If you want to use the courts, you play by their games. You are taking up the court’s time to hear your case. Now you have to put in some time of your own with discovery. Only fair.”
This attitude on the part of the courts requires the party objecting to have good grounds. According to practice pointer in California Civil Procedure before Trial, Section 8.1476, if you are going to object, make sure there is substantial justification for your position. Avoid raising the burdensome and oppressive objection unless the facts are truly unusual (e.g. very fragile property could be damaged by any movement, touching, etc. or such massive amounts of documents that it would take weeks to produce them as the other party insists.) If you are going to object in such a case state the reasons for your objection and offer to permit whatever inspection can be allowed under the circumstances.
Instead of objecting to the demand, you will usually be better off seeking limits on the inspection beforehand either by stipulation with demanding party’s counsel, or by motion for protective order under CCP 2031.060.
3. Protective Orders
Under CCP§ 2031.060, a party may promptly move for a protective order (after meeting and conferring with opposing counsel to see if the issues can be agreed upon.) The court for good cause shown may make an order to protect any party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. The burden of showing good cause for a protective order clearly rests on the party seeking to deny the other party’s discovery right. This protective order may include but is not limited to, one or more of the following:
· that all or some of the items or categories of items need not be produced
· that the time to respond to the set of demands or to a certain demand be extended
· that the inspection be made only on specified terms and conditions.
Trial Court’s Discretion
The trial court has discretion to narrow the broad scope of discovery by case by case basis by protective orders. Such orders may be granted on motion of any other party or other affected person where the burden, expense or intrusiveness of that discovery clearly outweighs the likelihood that information sought will lead to discovery of the admissible evidence. CCP §2017.020. The court has inherent power to balance the benefits versus the burdens of the proposed discovery.
Following are some examples of cases where the court had to determine whether the burden outweighed the benefit.
Examples of unreasonably burdensome document demands
1.) A demand for inspection of an insurer’s claims files in a bad faith action was held oppressive where uncontradicted declarations showed over 13,000 claims would have to be reviewed, requiring 5 claims adjusters working full time for 6 weeks each.Mead Reinsurance Co. v. Supt Ct. (City of Laguna Beach) (1986) 188 CA3d 313, 318. In Mead it was held that oppression must not be equated with burden. All discovery imposes some burden on the opposition. To support an objection of oppression there must be some showing that the ultimate effect of the burden is incommensurate with the result sought. In that case it was held that massive extent of the burden which the request entailed fell into the category of oppression. The result was that the court allowed certain portions of the document request and ordered other parts to be narrowed so that it would not be overly burdensome.
2.) In West Pico Furniture Co. v. Superior Court (1961) 56 Cal. 2d 407 the trial court had denied a motion to compel documents that would have required the answering party to search 78 of its branch offices. The reviewing court ordered the trial court to vacate its order denying discovery and instead to direct the party to re draft portions of their discovery so that they were just and reasonable and not overly burdensome. According to West Picothe objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought. The objection of burden is valid only when that burden is demonstrated to result in injustice. Hence, the trial court is not empowered to sustain an objection in toto, when the same is predicated upon burden, unless such is the only method of rendering substantial justice.
The correct test for the court to employ in properly allocating the burden of discovery between the parties as stated in Southern California Edison Company v. The Superior Court of Los Angeles (1972) 7 Cal. 3d 832 is that the court should weigh the relative importance of the information sought against the hardship that its production might entail, and it must weigh the relative ability of the parties to obtain the information before requiring the adversary to bear the burden or cost of production, keeping in mind the statutory admonition of entering an order consistent with justice.
The trial court is granted great discretion in making its orders for the protection of parties and witnesses. However, when disputed facts give a basis for the exercise of discretion, those facts should be liberally construed in favor of discovery, rather than the most limited and restrictive manner possible. Davies v. Superior Court, (1984) 36 Cal. 3d 291, Greyhound Corp. v. Sup Ct (Clay) 56 C2d at 384-385
It was also held in Greyhound that in those situations in which the only valid objection to discovery is that it entails an undue burden on the party, the trial court should give consideration to various alternatives provided in the statute. Requiring such party to pay the costs of disclosure is one method. In many instances justice may be served by approving portions of the request that appear to the court to be of sufficient importance to override the considerations of burden, while disapproving those portions which do not.
A party who feels that a demand is overly burdensome should work with the demanding party to place reasonable limitations on the discovery. If that is fruitless, the party can apply for a protective order. The court will take into consideration the expense, intrusiveness and burden of the demand in comparison with the likeliness that the demand will lead to admissible evidence in making its decision. If the burden outweighs the evidence and results in injustice, the trial court will limit the scope of discovery sought.
5. Motion to Compel- Timing & Requirements
In California State courts a party has 45 days from the date of service of objections to their demand for production of documents to file a motion to compel.
The motion to compel has to be accompanied with a declaration showing that the moving party made a reasonable attempt to resolve the issues outside of court before filing the motion. The motion shall also set forth specific facts showing good cause justifying the discovery sought by the inspection demand. In order to show good cause the moving party has to show that his requests are relevant to the subject matter and why such information is necessary.
If good cause is shown then the burden of proof shifts to the objecting party to show that his objections are justifiable.
Discovery rights are unique to American litigation. In most locales, such as Europe, there are no depositions, indeed, no right to inspect or have the other party produce documents. The court is given the sole power to investigate the facts and ask questions of witnesses, though in the Anglo system cross examination is allowed.
The United States system, with its inherent proclivity to give the parties the right to determine how to develop and present their case, is predicated on our instinctive distrust of the government. The court and the government acts as a referee while the parties fight it out in the courts, private parties presenting their best case and defense.
It is one reason our system is so expensive. But it is also one reason our system is regarded as one of the best in the world. A party interested in developing evidence for its own case is likely to be far more effective in discovering the truth than a judge who has a thousand cases on the docket a year. It is, in effect, the equivalent to our “private enterprise” system…but in the courts.
And just as capitalism rather enjoys people “fighting it out,” so the court system in the United States tries to allow the parties to fight out their case, within guidelines but without substantial court involvement until trial. Expect discovery to be prolonged, annoying, and vitally important to the case and the court to expect not to hear complaints from the parties minus truly outrageous actions.
“Stop whining,” a court told my opponent, a decade ago, “You chose to file suit now you are subject to the rules of the system. You don’t like the heat? Stay out of the kitchen…”