Published Decision Is Must Reading For All Litigators Engaged in Discovery Disputes.
We knew that we would enjoy the next decision, because it analogizes discovery disputes to the imagery of Hotspur (Henry Percy)—who is graphically depicted in Shakespeare’s Henry IV as being blinded by a combative nature and incapable of informally resolving a
disagreement with the King (a trait that ultimately cost him his life). The case is Clement v. Alegre, Case No. A123168 (1st Dist., Div. 2 Sept. 23, 2009) (certified for publication).
In Clement, defendant served some special interrogatories seeking to obtain information of plaintiffs’ damages, causation, and the existence of a loan commitment. However, plaintiffs objected on the basis that “economic damages” was vague and the interrogatories violated the self-containment rule. Meet and confers were engaged in, but plaintiffs stood their ground (a la Hotspur). A discovery referee was not impressed, ordering further answers and sanctioning plaintiffs in the amount of $6,632.50. Plaintiffs (a la Hotspur) appealed.
Plaintiffs (a la Hotspur) lost the appellate battle, too.
Clement is must reading on several points:
· Misuse of the discovery need not be willful in order to justify monetary sanctions—it must be without substantial justification or evasive in nature;
· The self-containment rule is not so ironclad that it should be applied in the absence of its rationale to prevent exceeding the numerical limit for special interrogatories;
· A compound objection should likely be sustained only where more than a single subject is covered by an interrogatory;
· The meet and confer process is just that—both parties must make a serious effort to negotiate and reach an informal resolution, with mere argument and bickering not being tantamount to a good faith attempt at informal resolution.
BLOG FAVORITE QUOTE—“More than 10 years ago, Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 lamented the all too often interjection of ‘ego and emotions of counsel and clients’ into discovery disputes, warning that ‘[l]ike Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement.’ (Id. at p. 1436.)”
BLOG UNDERVIEW—Los Angeles County Superior Court Judge Terry Green actually requires attorneys to personally meet and confer when discovery disputes arise. He suggests that much gets done over a cup of coffee or a glass of Merlot. We tend to agree.
