On Discovery

Hon. Socrates (Peter) Manoukian, Santa Clara County Superior Court

Hon. Socrates (Peter) Manoukian

In 2007, I was honored to be invited to teach California Civil Procedure at Santa Clara University School of Law. On the first line of every class since then, I have posted “The Top 10 Tips to Succeed in the Legal Profession.” Rule #3 has been “The opposing counsel on the second-biggest case of your life is going to be the trial judge of the biggest case of your life.”

It is rumored that trial judges do not like to get involved in discovery fights. This is untrue in most cases, true in some others. It is untrue since, by far, most attorneys are competent and skilled professionals adhering to principles of professionalism. Discovery disputes often involve cutting edge issues and many judges and lawyers are at the front of unique cases where new rules and procedures are tested for the first time. However, the rumor is true when the lawyers reduce themselves to petty sniveling, bickering and whining over simple discovery issues.

“It is a central precept to the Civil Discovery Act of 1986 that civil discovery be essentially self-executing. A self-executing discovery system is one that operates without judicial involvement.” Clement v. Alegre, 177 Cal. App. 4th 1277, 1291 (2009) (internal citations and punctuation omitted.) The purpose of the “Meet & Confer” requirement is a tool to achieve that precept.

“Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery” is a misuse of the discovery process. Code of Civil Procedure, § 2023.010(i). Monetary sanctions can be imposed against whichever party is guilty of such conduct even if that party wins the discovery motion in question. Code of Civil Procedure, § 2023.020.

“Meet & Confer” forces lawyers to reexamine their positions, and to narrow their discovery disputes to the irreducible minimum, before calling upon the Court to resolve the matter. It also enables parties and counsel to avoid sanctions that are likely to be imposed if the matter comes before the Court. Stewart v. Colonial Western Agency, Inc., 87 Cal. App. 4th 1006, 1016- 1017 (2001).

Factors considering the extent of efforts to satisfy as reasonable “Meet & Confer” can be found in Obregón v. Superior Court (Cimm’s, Inc.), 67 Cal. App. 4th 424, 434-435 (1998).

In most cases the quality of the “Meet & Confer” is acceptable. In others, it is more akin to a series of driveby shootings designed to achieve one-upspersonship for a tactical advantage rather than an attempt to work out the otherwise-simple discovery requests in a reasonable manner. In those cases, monetary sanctions may be imposed against both counsel at the same time. In Volkswagenwerk Aktiengesellschaft v Superior Court (Golsch), because of personal dislike for each other, counsel failed to make any real effort to negotiate the disputed issues. The Court could have refused to rule on the motion to compel because of moving party’s counsel’s failure to “meet and confer.” But in order to resolve the matter without wasting judicial resources, the Court heard the motion, found both lawyers to have violated the requirement, and ordered each to pay $150.00 out of his own pocket to the other lawyer’s client. 122 Cal. App. 3d 326, 331-334 (1981).

As to how to rule on the merits of the motion when the judge finds that “Meet & Confer” efforts were unsatisfactory, the courts have traditionally taken two approaches.

Some courts automatically deny discovery, reasoning that any other order would be “in excess of the trial court’s jurisdiction.” See Townsend v. Superior Court (EMC Mortgage Co.), 61 Cal. App. 4th 1431, 1439 (1998).

Other courts are more flexible, and may specify additional efforts at informal resolution before turning to the merits of the discovery dispute, depending on the circumstances of the case. Obregón, 67 Cal. App. 4th at 434-435. One of these additional efforts that I have adopted is based on a comment made by my good friend and colleague, the Hon. Laura A. Siegle of the Los Angeles County Superior Court, at a meeting of the California Judges Association Civil Committee. She suggested that the trial judge can order the parties to further meet and confer either in person or face-toface on a virtual platform. I have recently started to use this method, following a stern lecture, with a pleasant degree of success. The Civil Committee is considering proposing legislation to add to Code of Civil Procedure, § 2023.010(i) the use of a virtual platform as a means of meeting and conferring. I would appreciate hearing about any anecdotal experiences that readers of this article may have had on this interesting subject. Thank you for your time in reading this article.

Hon. Socrates Peter Manoukian has been a judge of the Santa Clara County Superior Court for 28 years and is currently serving as a Case Manager in the Court’s Civil Division. He is a member of the Board of Governors of the ABTL Northern California Chapter.