Civil Pretrial Practice

Civil Pretrial Practice Discovery Motions

Discovery Motions Sometimes, as you conduct discovery in your civil case, the opposing side fails to respond, or responds inadequately, to your formal discovery requests. • Motion to Compel: If the opposing side does not respond to your form interrogatories, special interrogatories, or request for production, you may file a motion seeking an order compelling the opposing party to respond. • Motion to Compel Further: If the opposing side served responses to your form interrogatories, special interrogatories, or request for production that were incomplete or otherwise void (e.g., not verified), you would need to file a motion to compel further responses. • Motion to Deem Facts Admitted: If a party fails to respond to your Request for Admissions entirely, the party who served the Request for Admissions is entitled to a court order deeming each of the facts listed in the Request for Admissions to be true, and each document listed in the Request to be deemed genuine.

Discovery MotionsMotion to Compel • If the opposing side does not respond to your form interrogatories, special interrogatories, or request for production, you may file a motion seeking an order compelling the opposing party to respond. • The party whom fails to respond waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product. • The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: • The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240 and • The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

Discovery MotionsMotion to Compel Further • If a party to whom interrogatories are directed serves an inadequate response, the party propounding the interrogatories may move for an order compelling further response to the interrogatories. • A response may be inadequate if any of the following apply: • An answer to a particular interrogatory is evasive or incomplete; • An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; • An objection to an interrogatory is without merit or too general.

Discovery MotionsMotion to Deem Facts Admitted • If a party fails to respond to a Request for Admissions entirely, the party who served the Request for Admissions is entitled to a court order deeming each of the facts listed in the Request for Admissions to be true, and each document listed in the Request to be deemed genuine. • If a motion to deem the admissions admitted is filed, the responding party can prevent his or her admissions being deemed true by serving adequate responses prior to the hearing date of the motion. Generally the responding party still must pay the sanction. • Even if your motion is granted, it may be possible for the party whose admissions were deemed admitted to file a Motion for Relief from Admissions under certain circumstances. • Unless a successful Motion for Relief from Admissions is filed, any admissions deemed admitted must be considered true by the court or jury, and the party whose admissions were deemed admitted will be prevented from presenting evidence inconsistent with the admitted facts at trial.

Discovery MotionsMeet and Confer Requirement • Meet and Confer: Before you file your motion, you must first attempt to “meet and confer” with the opposing party. This typically means sending a letter that informs the opposing party that the deadline to respond has passed or that their responses are inadequate, and providing him or her a reasonable time to respond, after which you would file a motion to compel responses. • A reasonable time to respond to your letter could be two weeks, or longer if the interrogatories or requests for production are particularly complicated. The “meet and confer” requirement is your opportunity to demonstrate to the court that you are making a “reasonable and good faith attempt at an informal resolution.” CCP § 2016.040. • Although not required, it is a good idea to have someone who is over 18 and not a party to the case mail the letter for you, and complete a Proof of Service by First Class Mail (POS-030). That way, if you are forced to file a motion with the court, you can attach the proof of service as an exhibit to your motion.

Discovery MotionsPreparing the Motion • You must file a separate motion for each of the discovery responses you wish to compel or deem admitted. • The motion must identify the interrogatories, demands, or requests by set and number. • A discovery motion consists of the following parts: • Notice of Motion & Motion; • Memorandum of Points and Authorities; • Separate Statement (not required if no responses were provided); • Declaration(s); • Exhibit(s); • Proposed Order; • Proof of Service.

Discovery MotionsPreparing the Motion – Notice of Motion & Motion • The Notice of Motion tells the opposing party when and where the motion is scheduled to be heard. • The Motion tells the court and the opposing party what is being requested.

Discovery MotionsPreparing the Motion – Points and Authorities • The Memorandum of Points and Authorities explain to the court and the opposing party the legal basis of the motion. • Introduction • Legal Standard • Argument • Conclusion

Discovery MotionsPreparing the Motion – Separate Statement • A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. • Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. • A separate statement is not required when no response has been provided to the request for discovery. • The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference.

Discovery MotionsPreparing the Motion – Separate Statement (Cont.) The separate statement must include-for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested-the following: • The text of the request, interrogatory, question, or inspection demand; • The text of each response, answer, or objection, and any further responses or answers; • A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute; • If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it; • If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and • If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.

Discovery MotionsPreparing the Motion – Declaration(s) & Exhibit(s) • Declaration(s) provides evidence, sworn under penalty of perjury, supporting the motion. • Exhibits should be attached to the declaration and typically include copies of the discovery at issue, responses (if any), and any meet and confer documents.

Discovery MotionsPreparing the Motion – Proposed Order • A Proposed Order is a separate document which sets forth what the moving party is seeking for the judge to sign. • The party who brings the motion usually must prepare the Proposed Order. • After a hearing, the Court may either modify the Proposed Order, instruct the moving party to modify it or prepare its own Order. • Notice of Ruling: The attorney for a party who obtains a favorable ruling usually has the responsibility of preparing a Notice of Ruling based on the Court’s decision. • A Notice of Ruling is not the same as the Court’s Order, but usually attaches a copy of the final, signed Order as an exhibit. • If all parties are present at the hearing, the Court may ask if all parties waive notice, which relieves the winning party from preparing and serving a Notice of Ruling.

Discovery MotionsPreparing the Motion – Proof of Service • You must complete a proof of service that identifies which documents are served, how they are served and to whom they are served. • The Proof of Service can be completed on pleading paper or using a Proof of Personal Service (POS-020) or a Proof of Service by First Class Mail (POS-030) form. • The Proof of Service must be signed by someone over the age of 18 who is not a party in the case, who verifies that they either personally delivered or mailed a copy of the motion and all related documents to the opposing party.

Discovery MotionsTiming • Notice Deadline: You must give notice of the motion within 45 days of the service of the verified response, or any supplemental verified response. CCP § 2030.300(c). • If no responses are served, there is no deadline, other than the overall motion cut-off date. • The propounding party and the responding party may agree in writing to extend the notice deadline. • Filing Deadline: The motion must be filed with the court at least sixteen court days prior to the hearing date. CCP § 1005. • Court days are Monday through Friday, excluding court holidays. • To determine whether a particular filing date will meet this deadline, start with your desired hearing date and count backward, CCP § 12c, sixteen court days. • The sixteenth court day prior to the hearing is the last possible date that the motion can be filed with the court. • Service Deadline: Prior to filing the motion with the court, all other attorneys, or self-represented parties in a case must be served with a copy of the motion.

Discovery MotionsOppositions and Replies • Opposition: If the opposing party wants to file an Opposition to the Motion, they must file the papers at least nine court days prior to the hearing, and serve them (by hand, fax, or overnight delivery) to arrive the day after filing. CCP § 1005. • The opposition contains a memorandum of points and authorities and usually a declaration, but does not need the notice of motion or motion. • Reply: The Reply to the Opposition must be filed five days before the hearing, and served (by hand, fax, or overnight delivery) to arrive the day after filing. CCP § 1005. • The Reply should carefully address any points made by the Opposition, especially if that point was not originally addressed in your Motion.

Discovery MotionsSanctions • The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel or motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. CCP §§ 2030.290(c), 2030.300(d). • Sanctions may be awarded even though no opposition to the motion was filed, or an opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. CRC 3.1348(a). • Monetary sanctions may include the moving party’s reasonable expenses in enforcing the discovery. CCP § 2023.030(a).

Civil Pretrial Practice