Civility in Discovery: The Good Faith Conundrum
In this fast-paced world, clients demand results, aggressive attorneys, and, above all, justice. To achieve justice we attorneys must find the essential facts, crucial legal elements, and, most important, evidence. Discovery rules were promulgated with the idea that full, complete disclosure is necessary for the expedient resolution of a case—tell that to the opposing counsel!
As a young lawyer, fresh out of law school where the perfect world existed and good prevailed, you think everyone will follow these rules—it is the law. Discovery is the most important and arguably the most difficult aspect of a civil litigation case. As a plaintiff you are presented with facts from your client, who tells you of supporting evidence that does not appear to be much of anything. Then, the defendant files an answer replete with affirmative defenses, which create new issues and facts requiring additional discovery.
Prior to deciding the path of your case, you decide to propound discovery to pick out the triable issues and facts, and lay to rest the irrelevant or agreed-upon facts. Much to your chagrin, the opposing counsel decides to provide responses containing objections to each and every request, demand, or interrogatory. After overcoming the initial shock of apparent abuse of discovery, you decide to meet and confer on the issues to attempt a resolution outside of court.
The California Code of Civil Procedure or Discovery Act requires a meet and confer attempt prior to filing a Motion to Compel Further Responses, but not a Motion to Compel Responses (where no responses have been served). Your state’s Discovery Act may have comparable meet and confer requirements that you should review when conducting discovery. You also need to confirm whether any time limits exist in filing your motion. In California, if responses are served, then you must file a Motion to Compel Further Responses within 45 days of service. CCP § 2031.310. You need to keep these limits in mind when attempting to meet and confer.
With either motion, it is better that the attorney make at least the minimal effort of sending a letter to the opposing counsel to put them on notice that the responses are due or a motion will be filed. If you know the opposing counsel and have a good working relationship with him or her, then the most efficient method of conferring is by picking up the phone and asking for an ETA of the responses. Whichever route you choose, confirm everything in writing; after all, memories fade, people misunderstand, or there may be a miscommunication. It is better to explicitly state the issue in writing to avoid any misunderstandings or miscommunications and support your memory with a tangible confirmation. It may seem like a lot more work, but it saves a lot of misery in the future.
Now, you are faced with three potential results when meeting and conferring:
1. The opposing counsel participates in the meet and confer, and agrees to provide further responses, consisting of compliance or actual responses. Great! Wait for the new responses and hope they are sufficient. If you find deficiencies, then start the meet and confer again, until satisfied. Just make sure you act in good faith and not to harass, annoy, or oppress the opposing party.
2. The opposing counsel ignores your meet and confer attempts. Problem—a motion may be required.
3. The opposing counsel participates in the meet and confer, but tells you the responses will remain “as is.” Biggest problem—a motion to compel should be filed, depending on the legitimacy of the objections, which you should have considered before the meet and confer.
At this point you must make a decision whether to proceed with a Motion to Compel or attempt other means of discovery. In my experience, Motions to Compel Responses or Further Responses are granted 98 percent of the time, as long as the requests are reasonable and the moving party made a good faith effort to resolve the discovery disputes prior to filing the motion. However, proceeding with a Motion to Compel may not be in your client’s best interests, because the motions increase litigation costs. Make the decision to file the motion after you attempt a meet and confer. Most of the time clients do not understand the need and importance of discovery. Take the time to explain it to the client before proceeding with a motion.
If the meet and confer is not successful, carefully review your discovery requests to ensure they are narrowly tailored, and clearly stated, then draft your Motion to Compel with a declaration from you, as the attorney, explaining the efforts made to informally resolve the issue, in good faith. Regardless of whether or not responses were served to your discovery, a good faith declaration should be filed in every discovery motion. This will not only give you more credibility in the eyes of the court, but it also will strengthen your request for attorneys’ fees for preparing the motion. In Southern California, the courts are reluctant to grant more than $2,000 in attorneys’ fees for a motion. Yet, as long as you have that good faith declaration and specify the time spent in preparing for the motion, the court is more than likely to grant your request.
The most important thing to remember in conducting discovery is good faith. Act in good faith when propounding discovery, responding to discovery, and participating in a meet and confer. That is the crux of the discovery rules, and a motto to live by in dealing with opposing counsel or parties. Above all, it makes you a more civil attorney.
Candice A. Garcia-Rodrigo is an associate attorney at Betty-Auton Beck, A Professional Law Corporation, in Redlands, California. Her practice focuses on civil litigation and probate.
© Copyright 2009, American Bar Association.