Using motions to compel and protective orders to stop the defense’s games

Steps to take control over the litigation and get what you need from discovery

2020 December

In this era of pandemic and stay-home orders, we are seeing an uptick in billing opportunities by the defense, many involving issues dealing with discovery and non-compliance with the discovery statutes. There are numerous articles on how to file motions to compel and general discovery motion practice tips and strategies. However, there are a few key areas that deserve emphasizing to help you take control over the litigation, gain strategic advantage over the defense, and stop defense’s frequent game playing.

Plaintiffs’ lawyers should be resolute against game playing from the outset of the case. The areas we see frequent discovery abuse by the defense are in the areas of (1) producing insurance- coverage information, incident reports and witness statements, sub rosa, and defendants’ repair records, (2) refusing to appear for remote depositions, and (3) propounding excessive, invasive, and harassing discovery requests. To obtain information to which we are entitled, and to protect our clients from abusive discovery tactics, we must proactively file motions to compel and protective orders. Showing that we will not permit our clients to be intimidated or be taken advantage of and that we will not back down is essential to achieving the best results possible for our clients.

Insurance Coverage Information

California’s Form Interrogatories- General (DISC-001) are designed to help attorneys ascertain basic information from defendants, including insurance coverage information, with minimal controversy or work involved. The Form Interrogatories are approved by the Judicial Council of California and are therefore per se reasonable. Form Interrogatory 4.1 asks for all policies of insurance through which the defendant is or might be insured “in any manner (for example, including primary, pro-rata, or excess liability coverage or medical expense coverage) for the damages, claims or actions that have arisen out of the Incident.”

Until rideshare companies (e.g., Uber and Lyft) entered the scene, most of the motion writing and meeting and conferring in this topic area was focused on ascertaining umbrella or excess coverage. Even then, defendants and their insurance companies frequently misrepresented the limits of coverage. We are bewildered by the frequency with which defense attorneys still lie about the applicable coverage, even in the face of a specific special interrogatory seeking this very information, and more so when the same carrier provides both the primary and the excess or umbrella levels of coverage. It does not help that there are limited remedies when defendants fail to disclose all levels of coverage other than a bad-faith action by the defendant after a large verdict, so the defense knows they can get away with these misrepresentations and omissions.

Rideshare companies are some of the worst offenders. They consistently refuse to provide information regarding insurance coverage or to produce copies of declaration pages in response to corresponding requests for production without plaintiffs first entering into a protective order regarding this information. Once plaintiffs agree to the protective order, defendants often continue to deny access to the full information and documents related to umbrella and excess coverage and will often produce only their primary coverage information. Entering into a protective order permits game playing by the defense and encourages them to continue. Plaintiffs’ lawyers must band together as a united front to help deter these strong-arm tactics.

Instead, plaintiffs should adamantly oppose any request for a protective order and not enter into one. Filing motions to compel, which forces the defendant to publicly disclose all of this information, is the stronger and better tactic. Insurance coverage, including the nature and limits of the coverage, is discoverable. Pursuant to Code of Civil Procedure section 2017.210, parties may obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy a judgment. This discovery may include the identity of the carrier and the nature and limits of the coverage. (Ibid.) In addition to the specific language of Code of Civil Procedure section 2017.210, California case law recognizes a broad right of discovery in the area of information relating to insurance coverage. (See Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 737.) Defendants’ insurance policies are discoverable on the ground that they are directly relevant because they may assist in resolution of the case. (See Laddon v. Superior Ct. (1959) 167 Cal.App.2d 391, 395-96 [“plaintiff’s ‘discoverable interest’ in defendant’s liability insurance arises with the ‘very pendency’ of the action against the insured. The conclusion is inescapable that...the insurance policy is relevant to the subject matter”] accord Irvington-Moore 14 Cal.App.4th at 739-40.)

Defendants often assert that excess-coverage information is irrelevant with respect to the subject action and will not be relevant unless and until the plaintiff is able to secure a verdict in excess of the primary policy (which was disclosed), as well as after a judicial determination that the defendant bears liability for the subject accident. These objections are unmerited because plaintiffs do not have the burden under California law of obtaining a jury verdict over the underlying policy limits before being entitled to know what excess policies a defendant has that may potentially cover the losses.

Meet and confer early

When defense plays games regarding insurance coverage, plaintiffs’ counsel should meet and confer early, in writing. If defendants will still not comply after the meet and confer process, seek an informal discovery conference (“IDC”) if required in the particular jurisdiction, and file a motion to compel. To gain a strategic advantage, it is important that you file your motion to compel before the defense files a motion for protective order. Oppose any protective order sought by the defense. Stand your ground at the hearing and cite the Code of Civil Procedure and the case law above; the judge should force defense to disclose all available limits and production of the insurance declaration pages (and perhaps even the full policies themselves). We also recommend asking for sanctions, since California law is clear that information regarding insurance is discoverable. Under the Code, the court shall grant sanctions unless it finds that defense had “substantial justification or that circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2030.310 and 2031.310) You may be successful in obtaining them since you had to expend time and resources fighting over something to which you are entitled under the law. Asking for sanctions sends a message that you and your client will not be messed with.

Incident reports and witness statements are not privileged

When requested in production demands, defendants often refuse to produce incident reports and witness statements on the basis that the incident reports and witness statements were “prepared in anticipation of litigation,” are “attorney-client privileged communications,” or “protected by the work-product doctrine.” Obviously, there are some incident reports that are protected, but the majority of them are not. When faced with these objections, first request and obtain a privilege log and immediately draft a meet and confer letter. In your meet and confer letter, discuss the objections offered, state that they are inapplicable, and state the basis of a further response. Prepare your meet and confer letter in a form that can easily be lifted when preparing your motion to compel and separate statement, if this becomes necessary.

Then, without delay, conduct further discovery and depositions to help determine whether the objections are well taken. Notice the depositions of supervisors (e.g., in trucking and other vicarious- liability cases), store managers (e.g., in slip or trip and fall cases), or whomever prepared the report and/or witness statement per the discovery responses and/or privilege log produced by the defense. You are trying to discover

(1) how the statement was obtained,

(2) who was present when the statement or incident report was given, and

(3) the purpose of the statement or incident report. Note the following when conducting this additional discovery:

Unsolicited witness statements and statements made between individuals, including the defendant, without an attorney present, are not privileged and must be produced. As you will recall from law school, the attorney-client privilege only protects communications between lawyer and client – not communications between managers or other individuals. (Evid. Code, § 954.) Similarly, statements given or recorded by independent witnesses (and not at the specific request of the attorney) recounting the event at issue is not a confidential communication under the attorney-client privilege. (Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 136.) Defense counsel often cite Nacht & Lewis Architects, Inc. v. Sup.Ct. (McCormick) (1996) 47 Cal.4th 214, 217, even though it does not apply to these types of statements. If defense plays games regarding these unprivileged documents, do not give in; you must file a motion to compel.

Pre-litigation investigations are not protected unless they are conducted by attorneys or under the direction of attorneys. A party cannot create work-product protection after the fact by conveying the results of its own investigation to an attorney. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 397.) If the attorney did not direct or conduct the investigation herself, the statement and/or incident report is not privileged and should be produced.

Where the employer requires reports and statements after all incidents in order to improve safety, for training purposes, and/or to avoid future incidents, the statement or report is likely not privileged and is discoverable. (D.I. Chadbourne v. Superior Court (1964) 60 Cal.2d 723, 737.) Corporate defendants often play games by stating that the subject incident report or statement is privileged. Under D.I. Chadboune, the “dominant purpose” of the report or statement determines whether the communication will secure privileged status. It is important to get admissions during the depositions that the primary purpose of the subject statement was, for example, for “safety,” “training,” or to “avoid future incidents,” as distinguished from a document prepared in the context or furtherance of the subject litigation. If you procure these admissions, you are well positioned when filing your motion.

If you are in federal court, materials prepared in the “ordinary course of business” (e.g., witness statements and incident reports) are not considered attorney work-product under Rule 26(b) of the Federal Rules of Civil Procedure, provided that (1) the defendant’s incident-reporting system and the incident report are business records created in the normal course of business (Garcia v. El Centro (S.D. Cal. 2003) 214 F.R.D. 587, 593); and (2) defendant’s policies require a report regardless of whether plaintiff brought a lawsuit (See United States v. ChevronTexaco Corp. (N.D. Cal. 2002) 241 F.Supp.2d 1065, 1083  [finding that documents that “would have been created in essentially similar form irrespective of the litigation are not entitled to work-product protection] (quoting United States v. Adlman (2d Cir. 1998) 134 F.3d 1194, 1202.) Therefore, be mindful that these sorts of documents cannot be withheld based on privilege in a federal court case.

If there are pictures or diagrams in the incident report of evidence that are not available for plaintiff to inspect, this would serve as a basis for motion to compel because of the “direct prejudice to plaintiff.” This is especially important in cases where the defense has not preserved evidence despite evidence preservation letters being sent shortly after the incident, as the plaintiff will be directly prejudiced if it is not produced. (See Code Civ. Proc., § 2018.030, subd. (b) (work-product other than attorney writings are entitled to only qualified protection, meaning the court may order disclosure if it determines that “denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice”).)

After the depositions and further discovery are completed, and once you have obtained information sufficient to compel the production of the subject statement or report, it is also important to again demand production of the document. For example, after the deposition where the store manager has admitted that they had to fill out incident reports after each incident in order to report safety concerns, or for training, or to avoid future incidents, defense counsel will often produce the incident report to avoid the threat of sanctions. If defense continues to play games despite having testimony and responses supporting your claim that the incident report is not privileged or protected as work-product, file a motion to compel its production, and be sure to ask for sanctions. Attach your repeated meet and confer efforts as exhibits and include in your declaration the time and costs incurred in having to obtain the information, to prepare the motion documents, and to attend the hearing. Do not let the defense lead the litigation; you must be proactive and demonstrate, at all times, you are a force to be reckoned with.

Be aggressive in your sub rosa discovery

Surveillance evidence (“sub rosa”) is used by defense counsel as a means to expose purportedly dishonest plaintiffs. In today’s world it has become common to see the defense procure hundreds of hours of surveillance video recorded over an extended time period, and then edit and alter the video to create a fake narrative about who the plaintiff is and the extent of plaintiff’s injuries. Defense counsel often argue that the sub rosa is “qualified work-product prepared at an attorney’s direction” and reflects counsel’s “impressions, conclusions or theories,” and is therefore entitled to protection per Code of Civil Procedure section 2018.030 and Suezaki v. Sup.Ct. (Crawford) (1962) 58 Cal.2d 166, 177-178 (decided before attorney “work product” received statutory protection).

Plaintiffs must be aggressive in their sub rosa discovery efforts: in addition to propounding the standard 13.0 Series of the Form Interrogatories, plaintiffs’ counsel should serve specific, targeted requests for admission, special interrogatories, and requests for production exploring sub rosa. Defense will object to disclosure stating that the evidence is not discoverable because any use of it would be for impeachment purposes only. (Code Civ. Proc., § 97.) However, plaintiffs’ counsel should argue that if the defense plans to use any of the sub rosa material at trial, they must produce all of the unedited footage, with sound if available, in its native format. Moreover, plaintiffs’ counsel should also have the opportunity to depose the investigator(s) to establish authenticity and foundation. (Suezaki v. Sup.Ct. (Crawford) (1962) 58 Cal.2d 166, 171.) Refusal to disclose sub rosa evidence is contrary to the purpose of pretrial discovery procedures in California. (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113.)

Your motion to compel sub rosa evidence

Therefore, once you receive responses to your discovery requests, review all objections, meet and confer on all items which did not contain full responses, and ask defense to amend without objections. If defense refuses to provide full, substantive responses (including the name and contact information for each and every investigator, and the actual, unedited raw footage of all sub rosa), go to an IDC (if necessary) and file a motion to compel, as it is likely they are hiding sub rosa. There are some wonderful webinars and articles written by our colleagues about sub rosa discovery and strategies. We suggest you review these other sources to learn more about the nuances of how to obtain sub rosa materials and fight against its non-production, and about the secretive and slimy tactics used by investigators in general. Jurors typically do not like the extent that the investigators go to in order to conduct the sub rosa, so it is important to aggressively pursue this information and perhaps use it against them.

Practice Pointer: If you have a corporate or entity defendant, in your deposition notice for the “person most qualified,” include subject areas and document requests regarding sub rosa and explore sub rosa at their deposition. It also does not hurt to ask individual defendants; maybe they know about sub rosa from their attorney, and they spill the beans accidentally at their deposition. Also subpoena the full insurance file from the defendant’s carrier. In one of our cases, documents were (probably mistakenly) produced that contained the investigator’s sub rosa reports, which contained references to video surveillance. Once you know the name of the investigator, you should notice and take that investigator’s deposition, and include requests for production for all of their reports and unedited video files. Do not forget to serve supplemental discovery requests under Code of Civil Procedure sections 2030.070 and 2031.050 prior to the close of discovery and pursue any additional sub rosa before trial. Also timely serve your Code of Civil Procedure section 1987, subdivision (c) notices to appear and include a request for production of all sub rosa evidence at trial. Be ready to file a motion to compel at the final status conference or in the days leading up to trial on an ex parte basis if new information is obtained further to the supplemental discovery responses.

If defendants fail to disclose the identity of the investigator and/or the existence of video or reports relating to an investigation of the plaintiff, file a motion in limine to preclude any introduction of or reference to sub rosa evidence at the time of trial for any purpose, including impeachment. California law is clear that failure to identify a witness in response to a valid discovery request can result in unfair surprise and is proper grounds for exclusion of that witness at trial. (Crumpton v. Dickstein (1978) 82 Cal.App.3d 166, 172 [error in not excluding testimony of witnesses not identified in discovery]; Young v. Rosenthal (1989) 212 Cal.App.3d 96, 119 [refusal of defendant to cooperate with the taking of deposition warranted sanction prohibiting him to testify]; Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 273-274 [court was within its power to preclude testimony of witness based upon party’s willful omission of witness’ identity in interrogatory responses]; Chronicle Publishing Company v. Superior Court (1960) 54 Cal.2d 548, 561 [court order barring testimony of witness was necessary to protect interrogating party from oppression, where witness name was deliberately excluded from interrogatory answer]; (Campain v. Safeway Store, Inc. (1972) 29 Cal.App.3d 362, 366 [exclusion of evidence not disclosed in deposition].)

By denying the plaintiff, as well as the trier of fact, the opportunity to view any and all purported sub rosa surveillance video or photographs, the plaintiff is deprived of her right to a fair trial. Argue that the defendants’ failure to afford the plaintiff the opportunity to conduct the proper discovery, including being able to depose the person who took the video and/or photographs, and authenticate the representations made therein, creates unfair surprise and prejudices the plaintiff, resulting in an abuse of the discovery process.

In sum, in every case that sub rosa could be a game changer for the plaintiff’s case, do not back down or drop the ball. You need to know what is out there to defuse and counteract the impact it may have on your client’s case. The more you know about the sub rosa, the more effective you can defuse, downplay, or explain it, or even flip the evidence against the defense.

Repair records – Discoverable even in admitted liability cases

It is mission critical for plaintiffs’ attorneys to conduct an injury-causation analysis from the moment they take on a case, starting with the incident or traffic collision report, to photographs of vehicles and/or the location of the incident, photographs of visible injuries, early witness statements while people’s memories are fresh, and repair records of the vehicles involved. Even though it seems obvious that defendant’s repair records are critical for comprehensive biomechanical and accident reconstruction analyses, it has become commonplace for defense counsel to object to production of repair records and information regarding repairs to defendant’s vehicle, on the basis that defendant is not making a claim for property damage or that liability is not an issue.

However, those repair records are a vital part of building your damage evidence for trial. They contain important information about damage to the vehicles that will help show the forces brought to bear upon vehicle occupants. When combined with the photographs of the damage the vehicles sustained and photographs from the scene of the crash, these records also help your experts build the case for how the impact happened. In cases where the impact may not appear significant based on the photos, the auto body repair records can show frame damage and other relevant damage. Simply understanding that a crash caused steel to bend helps jurors visualize the level of impact felt by the plaintiff.

A meet and confer letter is usually sufficient to get defense counsel to produce auto body repair records and photographs, but sometimes an IDC and/or motion is required. What is most important is that you diligently pursue these records so your experts have the information they need. If you are forced to file a motion, you should certainly request sanctions, since these items are clearly relevant per Evidence Code section 210 or at least calculated to lead to the discovery of admissible evidence. Please make sure you comply with the meet and confer and motion deadlines. Attorneys sometimes overlook that defendants have objected to the Form Interrogatory 7.0 Series or neglected to produce repair documents. When defense attorneys refuse to disclose this information during the initial discovery stages, they are hoping you fail to thoroughly review their discovery responses. If you wait too long and finally realize at the time of expert discovery that they did not produce this information, it may be too late for you to correct the error. Hopefully the defense experts have these documents in their files; but you will have to wait until expert discovery to obtain them, and it may be too late to provide these documents to your experts. You have played right into their hand and defense won. Do not let this happen; review the discovery responses when received and timely meet and confer to obtain this very important information.

Motions to compel remote depositions – Remote depositions are now the law

At the start of quarantine, the defense systematically refused to participate in remote depositions. In response, California’s Judicial Council enacted Emergency Rule 11, which allowed deposition officers to be in a different location than deponents throughout the pandemic and for 90 days after the Governor declared that the state of emergency related to the pandemic was lifted. The California legislature subsequently took action, and Code of Civil Procedure section 2025.310 was recently amended so remote depositions are now a part of our statutory scheme. Despite the current state of the law, there are many defense attorneys (and some firms) who still refuse to move forward with remote depositions either for plaintiffs, their client, or for experts. The following are a few strategies to help work around this.

File a motion to compel remote deposition. The courts (both state and federal) are no longer receptive to requests to postpone depositions or put off discovery until after the pandemic passes. Judges in all jurisdictions are routinely holding that it is not feasible to extend deposition deadlines until a time when they can be safely conducted in person because no one knows when that will occur. File your motion, cite the new Code section, and ask for sanctions. The judge will likely grant them, since courts have a large backlog and judges do not want to spend time resolving routine discovery disputes.

Seek a protective order. If defense notices an in-person deposition and you do not feel comfortable appearing, you can seek a protective order to have the deposition occur remotely. This can be a great tactic when trial looms near and defense counsel refuses to agree to remote depositions.

Notice (and take) your client’s deposition. If the defense is dragging their feet in noticing your client’s deposition because they do not want to take it remotely, Code of Civil Procedure section 2025.010 allows you to set and take your client’s deposition. At a minimum this will put the plaintiff’s case on defense counsel’s radar. Generally it will help get defense counsel back to the table and participating in discovery.

Since COVID-19, many courts have impacted motion calendars and are now scheduling motions six months out. What if you can’t get a hearing date for the motion before your trial date? The best tactic is to file your motion to compel or a protective order, and then go in ex parte to advance and specially set your motion. Defense is game playing when they refuse to notice or take remote depositions. Do not allow the defense to control the litigation. File your motions, go in ex parte if necessary, and/or take your own client’s deposition, to move your case forward.

Protective orders and motions to quash

Defense attorneys frequently propound unnecessary, intrusive, and burdensome discovery requests. For example, defense attorneys have been known to propound hundreds of special interrogatories in a simple car-crash case. Defense also often tries to get medical history and records of the plaintiff for conditions and treatment completely unrelated to the subject case, including highly sensitive mental-health records. Greyhound Corp. v. Superior Court, (1961) 56 Cal.2d 355, 391 permits the parties to broad discovery.

However, if “the burden, expense, and intrusiveness involved in the discovery clearly outweigh[s] the likelihood that the information sought will lead to the discovery of admissible evidence,” courts can limit the scope and exchange of discovery. If you believe that the defense is trying to enter into unwarranted territory (e.g., by seeking unrelated, very private medical information, information relating to plaintiff’s personal finances, school records, or employment and personnel records), you should file a protective order to protect your client. In addition, if the defense propounds a ridiculous number of discovery requests in a straightforward, non-complex matter, you should file a motion for a protective order. (Emerson Elec. Co. v. Superior Court, (1997) 16 Cal.4th 1101, 1110.) The plaintiff must show there is good cause for the court to bar or limit the discovery propounded.

Defendants regularly serve subpoenas to plaintiff’s remote employers and medical and mental-health providers, hoping that you are not paying attention and will let the subpoenas slide. If there is anything meaty in them (e.g., poor employment history with a history of terminations, mental issues, drug abuse, addiction treatment, bad grades in school, etc.), defense will jump on that information and attempt to use it against your client in any and all ways imaginable. Perhaps you will be able to preclude the admission of this information at the time of trial through motions in limine; however, there is no guarantee of this.

The information should never have been obtained in the first place. The U.S. and California Constitutions provide that all people have the inalienable right to privacy. California case law holds that individuals have privacy interests in financial records, personnel records, medical records, and sexual history. (See e.g., Eldorado Savings & Loan Ass’n v. Superior Court (1987) 190 Cal.App.3d 342, 346; Heda v. Superior Court, (1990) 225 Cal.App.3d 525, 530; Britt v. Superior Court (1978) 20 Cal.3d 844, 863.) Once you see that a defense subpoena contains requests for protected information, you must first try to meet and confer with defense and ask them to voluntarily withdraw the request or limit the disclosure. If defense refuses to withdraw or limit the request, you must file a protective order as soon as possible.

Do you need a discovery referee?

You can also discuss using an independent discovery referee to help resolve the discovery dispute; however, discovery referees are very expensive. During the motion hearing, you can ask the court to review the information in camera before production. Do not let the defense’s delay tactics (guised as offers to meet and confer) distract you from timely filing your motion for protective order. An objection alone is not sufficient. Overbroad discovery requests is just another way the defense tries to obtain private information that could be highly prejudicial to your case.

Finally, do not forget that Code of Civil Procedure sections 2030.030 and 2033.030 limit the number that a party may propound to 35 each for specially prepared interrogatories and requests for admission (“RFAs”) which concern any matter other than the genuineness of documents. Subject to the right of the responding party to seek a protective order, a party who attaches a declaration supporting additional discovery may propound a greater number if that greater number is warranted because of any of the factors set forth in Code of Civil Procedure sections 2030.040, subdivision (a) or 2033.040, subdivision (a).

However, despite the defendant’s “declaration of necessity,” the number of specially prepared interrogatories or RFAs is often excessive. If this is the case, do not hesitate to file a motion for a protective order under section 2030.090 or 2033.090. Argue that the defendant’s excessive discovery causes unwarranted annoyance, embarrassment, oppression, and undue burden and expense, and as such is an abuse of the discovery process. Do not hesitate to argue that defendants have not met, and cannot meet, their burden to show that the discovery propounded in excess of 35 are warranted in your case, making detailed arguments as to why; and ask the court to limit the plaintiff’s responses to no more than 35 each. This type of discovery abuse has long been frowned upon by the courts, who look at discovery devices as tools to facilitate litigation rather than as weapons to wage litigation. For strategic reasons you may choose to answer the excessive discovery. However, if you feel it is unwarranted, burdensome, and game playing by the defense to wear you down, file your motion for a protective order and seek sanctions.

Closing comments

Do not let the defense push you or your client around. An aggressive, forward-thinking approach to litigation is critical to effectively protecting your client and achieving the best results for him or her. You must stay acutely aware of the defense’s predictable discovery games and their abusive discovery tactics. Strong meet-and-confer letters, followed by the timely filing of motions to compel and protective orders, helps keep the defense in check and forces them to comply with the law every step of the way. We owe it to each other as plaintiffs’ lawyers to not let the defense win and do our best to beat them at their own game.