Discovery

While in the hospital, plaintiff was assaulted by a psychiatric patient at the same hospital.  Plaintiff sued the hospital claiming it failed to take reasonable measures to protect plaintiff from the assault which it should have anticipated from information available to the hospital's psychiatrist.  This decision holds that the trial court erroneously concluded that plaintiff was not entitled to discovery… Read More

Under CCP 2023.030(f), a party cannot be sanctioned for destruction of ESI if the evidence was lost before the party that possessed or controlled it became  objectively aware the evidence was relevant to reasonably foreseeable future litigation, meaning the future litigation was probable or likely to arise from an event, and not merely when litigation was a remote possibility.  Here,… Read More

This decision holds that when a consumer who is not a party to the action objects to disclosure of his personal records pursuant to a party's subpoena on a third-party witness under CCP 1985.3(g), the subpoenaing party must move to enforce the subpoena over the consumer's objection within 20 days after service of the objection, as provided in CCP 1985.3(g). … Read More

Both parts of the Discovery Act's sanctions chapter, CCP 2023.010 lists the types of discovery abuses the Legislature sought to preclude, and CCP 2023.030 lists the types of sanctions that can be awarded if authorized by a later section governing a specific discovery device, but neither of these general sections, in itself or combined with each other, authorizes imposition of… Read More

When a responding party serves both objections and answers to interrogatories, the 45-day deadline for filing a motion to compel (even if directed only against the objections) does not begin to run until the responding party serves a verification of the answers.  However, service of only a notice of motion to compel before the deadline is insufficient.  To be timely,… Read More

Under CCP 1987.2, a party that moves to quash a subpoena for that party's personal identifying information may recover attorney fees upon demonstrating (i) he prevailed on the motion to quash, (ii) the underlying action arises from the party's exercise of free speech rights on the Internet, and (iii) the plaintiff in that proceeding did not make a prima facie… Read More

The district court abused its discretion in excluding testimony from defendant's sole trial witness and in imposing monetary sanctions for defendants' purported failure to properly identify the areas of testimony of the witness--who had been identified in the defendant's initial disclosures.  Even if the initial disclosures showed only that the witness would testify about the underlying lawsuit for which the… Read More

Under 28 U. S. C. §1782, a district courts may order testimony or the production of evidence “for use in a proceeding in a foreign or international tribunal.”  The statute reaches only governmental or intergovernmental adjudicative bodies, not private arbitral panels. Read More

In response to a contention interrogatory about whether plaintiff, the borrower, contended that notice of foreclosure had not been properly served, plaintiff answered "unsure."  This decision holds that plaintiff is bound by that deliberately ambiguous answer and cannot, in opposition to a summary judgment motion, suddenly claim that she now is certain she never received notice of the foreclosure sale. … Read More

Employer's arbitration clause was unenforceable because it was unconscionable.  The clause was a mandatory, non-negotiable requirement of employment.  It was procedurally unconscionable because it was given to plaintiff only in English, which he cannot read, and without a schedule of the arbitration fees he could be charged.  It was substantively unconscionable because it allowed the arbitrator to shift attorney fees… Read More

Cal. Const., art. I, sec. 28(b)(5) grants crime victims the right to “refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.”  This decision holds that this provision which was… Read More

In most arbitrations, the arbitrator decides any issues regarding discovery.  Not so in uninsured/underinsured motorist arbitrations under Ins. Code 11580.2(f).  The court decides discovery issues in those types of arbitration proceedings.  This decision holds that the trial court's discovery rulings cannot be challenged on an appeal from an order confirming the arbitration award because error in discovery rulings by a… Read More

The trial court did not abuse its discretion in denying plaintiff's motion to compel Yelp to produce the source code for its software that filters unreliable reviews from its website.  The battling experts disagreed as to the usefulness of the source code in proving whether Yelp's reviews were "trustworthy" as advertised.  Yelp demonstrated that production of the source code would… Read More

California's Electronic Discovery Act (CCP 1985.8) requires a trial court to protect a third party witness from undue burden and expense in producing electronically stored information in response to a third-party subpoena.  Here, the trial court properly applied the statute and did not abuse its discretion in ordering plaintiff to pay $130,000 which represented half the cost of the Department… Read More

The trial court did not abuse its discretion in awarding costs against plaintiff under CCP 2033.420 for having denied defendant's requests of admission regarding the breach of oral promise claim alleged in the complaint.  The evidence at trial showed that plaintiff could not have maintained a good faith belief, at the time he denied those requests, that he would prevail… Read More

Under the federal recalcitrant witness statute, 28 U.S.C. § 1826(a), when a witness refuses to testify or provide other information, including documentary evidence, the court “may summarily order his confinement . . . until such time as the witness is willing to give such testimony or provide such information.”  This decision holds that section 1826 applies to post-judgment as well… Read More

Though noting a split of authority on the issue, this decision follows Lossing v. Superior Court (1989) 207 Cal.App.3d 635 in holding that a civil contempt proceeding brought to enforce discovery orders (in this case, post-judgment discovery orders) cannot form the basis of a later malicious prosecution action. Read More

Noting the split of authorities on this issue, this decision follows Cooksey v. Alexakis (2004) 123 Cal.App.4th 246 in holding that a party who seeks a continuance under section 437c(h), must show why the discovery necessary to oppose the motion for summary judgment or summary adjudication could not have been completed sooner, and accordingly requires the court to grant the… Read More

Under CCP 2025.295, the deposition of a plaintiff can take no longer than 7 hours if (a) the action is for injury or illness from mesothelioma, and (b) a doctor certifies that the plaintiff suffers from mesothelioma raising a substantial medical doubt that plaintiff will survive beyond six months.  If more than 20 defendants appear at the deposition, the court… Read More

Like Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, this writ proceeding arises from Johnson & Johnson's discovery in the county's opioid UCL, FAL and public nuisance action.  J&J subpoenaed several non-party counties to produce records of opioid prescriptions and drug treatment records with intact personal identification information to J&J's third party vendor for it to de-identify… Read More