Informal Discovery Conferences PDF

About this Issue Hon. Holly J. Fujie July 2018 Issue Informal Discovery Conferences AN EFFECTIVE AND EFFICIENT WAY TO RESOLVE MOST DISCOVERY DISPUTES Few motions strike more fear...

About this Issue Hon. Holly J. Fujie July 2018 Issue Informal Discovery Conferences AN EFFECTIVE AND EFFICIENT WAY TO RESOLVE MOST DISCOVERY DISPUTES Few motions strike more fear (or at CCP section 2016.040 requires extensive declarations and memoranda of points least boredom) into the hearts of attor- “reasonable and good faith” attempts to and authorities, with individual, some- neys than the dreaded Motion to Compel meet and confer before filing such times almost identical, motions required Further Responses to Discovery. These motions (usually involving multi-page for each discovery request, and require a motions, brought under California Code “meet and confer letters” to which exten- filing fee for each such motion. Given of Civil Procedure (CCP) sections sive responses must be prepared). If the crowded calendars of our courts, the 2025.480, 2030.300, 2031.310, 2032.250, those efforts prove unavailing, the pendency of motions to compel further 2033.080 or 2033.290 are enormously statutes require the preparation of can stall discovery and settlement time-consuming, technical and costly. seemingly endless, repetitive charts, See Fujie, Next Page Holly J. Fujie, continued July 2018 Issue discussions, and the final result can be Association of Los Angeles through 2016.080(c)(2), we will always find unsatisfying to both sides. the Conference of California Bar a time to hold an IDC, even if it is In an effort to address these prob- Associations. This bill added Section before or after regular courtroom hours. lems, the Superior Courts have for years 2016.080 to the CCP, providing that a In the long run, I find that such flexibili- used Informal Discovery Conferences court may conduct an IDC either upon ty results in the resolution in most if not (IDCs) as a way to avoid the filing of request of a party or on its own motion all motions to compel further and other motions to compel further discovery. “for the purpose of discussing discovery discovery motions. Until January 1, 2018, however, the par- disputes between the parties.” (Code Civ. As a caveat, attorneys should be ties and the Courts lacked an established Proc., § 2016.080(a).) This new law pro- aware that each judge handles (or procedure for ordering IDCs and for vides the possibility of the court giving doesn’t handle) IDCs in a different way. extending deadlines for filing such protection against the deadlines for fil- Moreover, judges generally do not con- motions. ing motions to compel further by allow- duct IDCs where there are self-represent- For example, at times, parties would ing the court to “toll the deadline for ed litigants or where no response at all meet and confer in good faith in an filing a discovery motion or make any has been received to a discovery request attempt to resolve a discovery issue, but other appropriate discovery order.” (motions to compel). In cases where the would be unable to reach a resolution by (Code Civ. Proc., § 2016.080(c)(2).) In attorneys are having difficulty agreeing themselves. If the deadline for filing a my courtroom, the rules for IDCs posted on a discovery schedule, I am happy to motion to compel was approaching but on the court’s website provide that the attempt to resolve such issues at an IDC, the opposing party’s lawyer was unavail- scheduling of an IDC automatically provided that everyone has brought their able to grant an extension of time to file extends the deadline to file a motion to calendars and those of the proposed wit- pending an IDC or refused to do so for compel further by two weeks from the nesses to the session. In my courtroom, it strategic reasons, the moving party date of the IDC, as contemplated by that is mandatory that the attorneys attending would often be compelled to file the subsection. an IDC come prepared with authority to motion to preserve the party’s rights. The statute allows but does not man- resolve all pending discovery issues. It is Further, a party was not required to date courts to conduct IDCs. (Code Civ. a waste of everyone’s time to send an extend the statutory time to file such a Proc., § 2016.080(a).) Attorneys should attorney with no authority or, worse yet, motion while an IDC was being sched- check the webpage for the department to no knowledge of the case at all, to an uled and held. which your case is assigned and, if that IDC, and doing so certainly will not This situation eliminated much of does not provide specific instructions on endear you to the judge. the benefit of the IDC, since the motion how to set up an IDC, contact the judicial A party seeking an IDC is required and its attendant costs had already been assistant to inquire whether the judge to file a CCP Section 2016.040 declara- incurred and the hearing time taken on does conduct IDCs and, if so, how they tion, describing previous meet and con- the Court’s calendar. This situation also are scheduled. Section 2016.080 provides fer efforts. (Code Civ. Proc., 2016.080 could result in an unwarranted solidifica- deadlines for the setting of IDCs by the (b).) I also encourage attorneys to contin- tion of the moving party’s position that Court, so that parties are not kept in ue meet and confer efforts even after was not conducive to settlement of the limbo because of the Court’s busy such declarations have been filed. Brevity needed on required form issues at the IDC. calendar. Scheduling of IDC In addition, before January 1, it was unclear whether a Court could compel a The Los Angeles Superior Court has litigant to set or attend an IDC as a pre- In the Los Angeles Superior Court, a form, LACIV094, which each party to a requisite to the filing of a motion to com- IDCs are scheduled on the Court discovery dispute must complete and file. pel further. Therefore, no consequences Reservation System (CRS). In my court- This form is available on the Court’s other than a possible increase in sanc- room, attorneys are instructed that they website and requests from each party a tions awarded on the motion resulted may contact my judicial assistant if they brief description of the nature of the dis- from a party’s failure to appear at a cannot set an IDC on CRS, and he will covery dispute from that party’s point of scheduled IDC. try to accommodate the parties at an view. In too many cases, the limited space A.B. 383 provides framework for the available time. Attorneys should work available on this form to describe the dis- IDC together to find some agreeable dates pute is used to detail the recalcitrance of before going to CRS or contacting the the other party rather than the nature of This situation changed when last judicial assistant. Because my courtroom the dispute and why the discovery should year Governor Jerry Brown signed instructions require that an IDC be held be ordered or not ordered. Try to create into law A.B. 383, sponsored by before a motion to compel further is categories for the requested information Assemblymember Ed Chau (D-Monterey filed, and further provide the automatic so that more than one item can be dis- Park) and based upon a proposal pre- extension of the deadline to file such cussed at the same time. sented by the Women Lawyers motions contemplated by CCP Section See Fujie, Next Page Holly J. Fujie, continued July 2018 Issue The limited space on the form Motions to Quash, Motions for Protective decision, and even then only if it is con- should give a simple explanation of the Orders, Motions to Compel Depositions trolling on that court, it will probably case, stating only the facts that are rele- and Motions for Physical Examinations have minimal if any influence on the vant to the current discovery dispute. are not included in the statute so we can- judge’s position. I have on occasion Next, the categories of discovery sought not order that they be the subject of expressed to the parties that the issue (e.g., telephone records) and the reasons IDCs, I encourage parties to agree that involved is so unusual that briefing would why that information is discoverable or is they will be discussed at the same time as be useful to the Court and set a briefing not discoverable should be stated. It is they are also more easily resolved there- and hearing schedule. unnecessary to set out either the general by. Upon agreement of the parties, we After hearing the facts and argument statutes or cases stating general rules on can also discuss general discovery sched- of the attorneys at the IDC, judges will the scope of discovery. If there are specif- uling issues, to prevent future disputes give their indication of how they would ic cases and/or statutes relating to the from arising. Of course, these are my likely rule upon the motion, if brought. discoverability of the specific information rules alone, and counsel should check Often, judges will tell the attorneys that sought, however, those should be cited if with the individual department to deter- while it is possible that they could be per- they are not standard areas of inquiry. In mine whether the judge prefers to limit suaded to a different result by formal addition, if there is a specific, unusual discussions at IDCs to specific motions to briefing, based upon past experience and factual issue in the case that causes par- compel further. the facts as they have been presented, it ticular information to be discoverable or Before the IDC, I will have reviewed is not likely that on this particular issue not, counsel should cite to it and be the IDC form and the general state of they would do so. prepared to discuss it with the judge motions, activity and proximity to trial in Some judges then leave it to the at the IDC. the case, although this depends upon my attorneys either to reach agreement or to Meeting in person time availability. In the IDC, counsel may file a motion and proceed to the usual discuss any additional facts or circum- briefing of the issues, and the Court will I find that face-to-face meetings at stances that relate to the admissibility of take no further action on the IDC. The the courthouse while the attorneys are the information sought. Again, counsel option of filing a motion to compel fur- waiting for the IDC to begin – often the should guard against using the limited ther after an IDC, regardless of the first the attorneys have held – can be time available to launch into a diatribe Court’s indication at the IDC of its incli- very productive, and sometimes result in against other counsel, as the purpose of nation on the issue, is expressly author- the entire matter being resolved before the IDC is not to punish the party either ized by CCP Section 2016.080(e), which the IDC even begins! For that reason, seeking or refusing to provide discovery. provides: “The outcome of an informal I encourage pre-IDC meet and confer I will steer such discussions immediately discovery conference does not bar a party sessions to be held in person, if possible. back to the basic issues of the discover- from filing a discovery motion or preju- Those long meet and confer letters, ability of the information and the issues dice the disposition of a discovery besides being time-consuming and involved – i.e., why does the party seek- motion.” In that case, the Court will expensive, can be polarizing and count- ing discovery need this and why does the review the papers and listen to oral argu- er- productive on issues that might be opposing party believe it is not discover- ment at the hearing and reach its conclu- capable of being resolved in the course able. Counsel should be prepared to sion de novo. Attorneys should, however, of a conversation or meeting. We do discuss these issues in detail. listen carefully to the inclination stated ask that if the issue for which an IDC The purpose of the IDC is to pro- by the judge, as it has generally been has been scheduled with the Court is vide an informal forum for the parties to honed by years of practice and judicial resolved before the IDC is held, you con- inform and discuss with the judge out- experience. Compromise can avoid a motion to tact the Court as soon as possible to so standing discovery issues and for the compel further inform us, so that we do not prepare judge to express her or his views on those unnecessarily. Even if the matter is issues. Judges have usually seen just resolved in the hallway after we have about every combination and permuta- My personal practice is after discus- completed our preparation, however, we tion of these discovery issues in the past, sion by the attorneys and my expression are happy to hear that the IDC is no and have a general idea of how they will of how I would likely rule on such a longer necessary, which leaves us with rule on a particular issue. That inclina- motion to compel further or other dis- additional time to go on with our other tion may, of course, change depending covery issue, to ask if the parties can Court work. upon the facts of a particular case. One agree to a resolution of the issue(s). During the conference area that is not generally helpful to a Often, this is a compromise of the par- judge is information on how some other ties’ positions based upon a calculation As to the scope of IDCs, I encourage judge, either down the hall or in another of what is actually needed and what can the parties to bring all pending discovery state, has ruled on a similar issue in an actually be produced. If they are in disputes before me at the IDC. Although unrelated case. Unless it is a reported See Fujie, Next Page Holly J. Fujie, continued July 2018 Issue agreement as to this solution, I ask the Judges extoll benefits of IDCs Sole practitioner Marlene Thomason is a parties if they will agree to my issuing an fan of the judge’s conferences because Those of my colleagues who conduct order on the issues presented. If the par- they’ve helped level the playing field in a IDCs are also enthusiastic about their ties do not so agree, then they may pro- matter with multiple lawyers on the other potential for streamlining discovery dis- ceed to act voluntarily according to this side. ‘One way a sole practitioner can get putes and freeing up both attorney and resolution or to make a motion to compel overwhelmed is by answering all discov- court time for other matters. In two further. ery motions that large law firms might recent Daily Journal articles (quoted with If they are agreeable to my issuing like to pursue on a case,’ Thompson permission of the Daily Journal and the an order, I inquire as to workable dead- said.” quoted individuals), my colleagues, Judge lines and I fashion an order, which usual- At an IDC, judges can suggest Howard Halm and Judge Teresa ly begins: “Following an Informal numerous ways in which discovery can Beaudet, praised the process. In a profile Discovery Conference attended by the be simplified so as to provide all neces- authored by staff writer Arin Mikailian parties, the parties agreed to the issuance sary information to the requesting party (April 12, 2018), Judge Halm recalled of the following order:” I then set out in a timely manner while minimizing that “[o]f the hundreds [of IDCs] he’s exactly what has been agreed to by the time-consuming and duplicative efforts held since [he moved to an independent parties, together with dates by which the by the responding party. Judges also try civil calendar courtroom in the Stanley agreed-upon actions will be taken. This to ensure that discovery is completed in Mosk Courthouse two years ago]….he gives the parties set deadlines and tasks the most efficient manner so as to can confidently recall only three that to complete, thus providing both certain- accommodate existing motion and trial ended with a motion being made. ‘That’s ty and an order to enforce if necessary. dates. hundreds of hours saved that I can I find that without such an order, the In the two-plus years that I have devote to other things, getting ready for parties occasionally disagree about what been conducting IDCs, I have found trial and other matters…. I think it’s a they had agreed upon at the IDC, thus them an extremely useful tool in making very effective tool in reducing the leading to even more discovery disputes the litigation process as cost-effective as amount of work that the judge has to do to resolve. possible. With the goal of allowing attor- and the courts have to deal with.’” I personally enjoy the unique oppor- neys to prepare for either settlement, res- As reported in Mikailian’s April 23, tunity which an IDC presents to sit down olution or trial by helping them to obtain 2018 profile in the Daily Journal, Judge informally with counsel and discuss the the information they need, the IDC can Beaudet expressed her belief that IDCs issues off the record. On occasion, the assist all parties in conducting discovery “play a role in curbing potential objec- question of settlement or trial prepara- while reducing the workload of the tions.” The article also discussed ways in tion arises, and counsel and I are able to courts. which Judge Beaudet believed IDCs can discuss whether there is anything the result in creative ways of handling discov- Holly J. Fujie is a judge on the Superior Court can do to assist in the resolution or ery issues. For example, “[Judge] Beaudet Court of Los Angeles County in California. scheduling of the case. It is also a good said suggesting phases [for discovery] She was appointed by Governor Jerry Brown opportunity to just chat with counsel and is a popular solution when tasked with in December 2011. She was elected in 2014 get to know them and their case better ironing out potential objections in an for a term that expires in Jan. 2021. outside of the courtroom. informal discovery conference.