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  1. #1
    mtpockets is offline Member
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    Question Motion to compel discovery

    What is the name of your state? CA

    Is it necessary to file a motion to compel discovery when the other side refuses to respond to discovery requests?

    (They are not cooperating because they do not have any evidence, but are unwilling to admit that they do not have any evidence.)What is the name of your state?
  2. #2
    tranquility is offline Senior Member
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    You're really not giving enough information to tell. But, in general, a discovery request is just that, a request. Then you must make a motion to compel if the answer is insufficient. (You must try to resolve differences first. Just because they don't answer, doesn't mean you jump to a motion.)

    If they are actually not even answering you, a good trick is to add requests for admission to your interrogatories or request for documents. If they don't answer then, the requests may be deemed admitted.
  3. #3
    dcatz is offline Senior Member
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    As Tranquility points out, you're a little light on information, in that you don't even mention what type of discovery is at issue or whether "refusal" means "no response" or "meritless objections".

    The Civil Discovery Act starts at Calif. Code of Civil Procedure 2016, found here:
    [URL="http://www.leginfo.ca.gov/calaw.html"]http://www.leginfo.ca.gov/calaw.html[/URL]

    Tranquility's response assumes that your focus is on Interrogatories, Requests for Admissions and Requests for Production. Discussion of those begins at CCP 2030.010, but you shouldn't overlook the earlier data, including sanctions for abuses at 2023.

    You can cover a lot of ground with an RFA asking the defendant to admit or deny that there is no merit to Affirmative Defenses and couple it with a Special Interrogatory requesting an explanation of all denials to RFAs. If the thorough RFAs are ever deemed admitted, you've laid the foundation for summary judgment.
  4. #4
    mtpockets is offline Member
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    Type of discovery

    First I sent out a Request for Production of Documents. I asked for documents that were specifically referred to in the complaint against me. The plaintiff initially replied that he had not completed his investigation. He subsequently sent me some correspondence that seems to be totally irrelevant.

    Next I sent out interrogatories. I have not received any reply.

    I know that I can file a motion to compel discovery. What I am asking is whether I am required to file such a motion.

    Thank you.
  5. #5
    Litigation! is offline Senior Member
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    Quote Originally Posted by mtpockets


    What I am asking is whether I am required to file such a motion.

    Thank you.

    My response:

    "Required" or "should"? You don't have to do anything. You're the "Captain" of your side of the litigation. If you want to file a Motion to Compel on the Interrogatories, you can - - and I think you should. Keep in mind, however, that missing the 45-day deadline for a motion to compel presumably waives the demanding party's right to serve a later demand for the same documents. [See Professional Career Colleges, Magna Institute, Inc. v. Sup.Ct. (Stewart) (1989) 207 Cal.App.3d 490, 492, 255 Cal.Rptr. 5, 6) You MUST "Meet and Confer" if ANY response is given.

    And, I disagree with "tranquility" when he says, "(You must try to resolve differences first. Just because they don't answer, doesn't mean you jump to a motion.)"

    Boloney. When there is NO response to Discovery, you don't need to "Meet and Confer." The failure to timely respond waives all objections to the interrogatories; so there are no issues left to "resolve" with opposing counsel. The moving party is not required to show a "reasonable and good faith attempt" to resolve the matter informally with opposing counsel before filing the motion. [Ca Civ Pro 2030.290] and see Leach v. Sup.Ct. (1980) 111 Cal.App.3d 902]


    IAAL
  6. #6
    stephenk is offline Senior Member
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    The new ccp sections dealing with discovery now require a meet and confer prior to filing a motion. a declaration stating a meet and confer was held is required under ccp 2016, I believe.

    Edit.

    Here it is:

    2016.040. A meet and confer declaration in support of a motion
    shall state facts showing a reasonable and good faith attempt at an
    informal resolution of each issue presented by the motion.
    Cal Naughton, Jr.: I like to think of Jesus as a mischievous badger.
  7. #7
    Litigation! is offline Senior Member
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    Quote Originally Posted by stephenk
    The new ccp sections dealing with discovery now require a meet and confer prior to filing a motion. a declaration stating a meet and confer was held is required under ccp 2016, I believe.

    Edit.

    Here it is:

    2016.040. A meet and confer declaration in support of a motion
    shall state facts showing a reasonable and good faith attempt at an
    informal resolution of each issue presented by the motion.

    My response:

    Stephen, CCP 2016.040 does not abrogate Leach, supra.

    The failure to timely respond waives all objections to the interrogatories; so there are no issues left to "resolve" with opposing counsel. The moving party is not required to show a "reasonable and good faith attempt" to resolve the matter informally with opposing counsel before filing the motion. [Ca Civ Pro 2030.290] and see Leach v. Sup.Ct. (1980) 111 Cal.App.3d 902]

    CCP 2030.290. "If a party to whom interrogatories are directed fails to
    serve a timely response, the following rules apply:

    (b) The party propounding the interrogatories may move for an
    order compelling response to the interrogatories."


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  8. #8
    dcatz is offline Senior Member
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    With regard to Interrogatories, we may be dealing with a rather esoteric point, other than for those doing discovery in California.

    It would not appear that the new Act changes the old Act substantially with respect to "meet and confer". If there is NO response, I personally question whether there is a meet and confer obligation, because there is no disputed issue. Failure to respond is, "pre se", a violation of the statutory obligation

    On the other hand, if there is an inadequate, evasive etc. reponse or an amended response is filed, then the rights incorporated previously and fully in 2030(l) and (m), which were predicated on meet and confer, now require the same thing, as it is set forth in 2016.040.

    At least that's my reading. I haven't had to confront it directly, since the Act changed
    Last edited by dcatz; 03-11-2006 at 10:01 AM.
  9. #9
    stephenk is offline Senior Member
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    Just try winning on a motion to compel without a meet and confer. 9 out of 10 judges will deny the motion for failure to informally attempt to resolve the issue. San Diego County will not calendar a motion to compel without first setting up a pre-motion hearing with the parties and the judge to attempt resolution of the problem short of a motion.

    I covered a motion for a colleague. The judge sanctioned our firm for failure to meet and confer and took the motion off calendar.

    A meet and confer can be satisified with a letter to the other party stating the responses are overdue and responses, without objection, are to be served within (number of days) or a motion to compel will be filed.
    Cal Naughton, Jr.: I like to think of Jesus as a mischievous badger.
  10. #10
    Litigation! is offline Senior Member
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    Quote Originally Posted by stephenk
    Just try winning on a motion to compel without a meet and confer. 9 out of 10 judges will deny the motion for failure to informally attempt to resolve the issue. San Diego County will not calendar a motion to compel without first setting up a pre-motion hearing with the parties and the judge to attempt resolution of the problem short of a motion.

    I covered a motion for a colleague. The judge sanctioned our firm for failure to meet and confer and took the motion off calendar.

    A meet and confer can be satisified with a letter to the other party stating the responses are overdue and responses, without objection, are to be served within (number of days) or a motion to compel will be filed.

    My response:

    Boloney. When a judge tries that with me, I inform them about Leach, and I drive it on home with the judge. There's no reason, and no authority, for a judge to require any more than 30 plus 5 to respond to discovery. Giving an opponent more than the 35 days is, in effect, spitting on the Code, the Legislature, and the Appellate Court.

    Besides, the Code allows for responding to Discovery, without objections, prior to the Motion hearing. Usually, a response comes in, and I get my sanction money.

    IAAL
  11. #11
    tranquility is offline Senior Member
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    As the one who first mentioned the *must* on meet and confer, I agree with those who claim it is not required when there is no response. (Rather than an inadequate response.) However, the courts still strongly encourage such a meeting and it makes sense to at least contact and try to resolve the differences before making a motion.

    It makes sense as I'd much rather take a little time to cover all the bases and make judges everywhere happy, than point out the law to a judge who didn't see things my way. Even if you have him tied up on this motion, there will be other motions. I'd rather pay the tax up front over pay the tax, and the penalties, later on.
  12. #12
    Litigation! is offline Senior Member
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    Quote Originally Posted by tranquility
    As the one who first mentioned the *must* on meet and confer, I agree with those who claim it is not required when there is no response. (Rather than an inadequate response.) However, the courts still strongly encourage such a meeting and it makes sense to at least contact and try to resolve the differences before making a motion.

    It makes sense as I'd much rather take a little time to cover all the bases and make judges everywhere happy, than point out the law to a judge who didn't see things my way. Even if you have him tied up on this motion, there will be other motions. I'd rather pay the tax up front over pay the tax, and the penalties, later on.

    My response:

    Either you're a Defense attorney, like Stephen, who is satisfied with drawing a paycheck each week, or you're not an aggressive Plaintiff's counsel. You see, I'm the latter. That's why clients hire me and my lawfirm, rather than the idiot next door, and that's why insurance companies respect what I say. You see, I'm in their book - - on the page that says, "Attorneys who are aggressive and win." I'm not on their "Wussy" page.

    IAAL
  13. #13
    dcatz is offline Senior Member
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    I guess I'm a plaintiff's attorney on the "Wussy" page. Strange, because I'm almost exclusively contingent, meaning I eat what I kill, and I stll manage to eat well enough. But, regardless of how I read the statute, I always send stephenk's letter, even for complete non-compliance. The judges that I see also seem to feel that anything less is being a little too "quick on the trigger".

    Doing it doesn't make for less l & m success, it makes for more.
  14. #14
    andreasalina is offline Junior Member
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    Quote Originally Posted by mtpockets
    What is the name of your state? CA

    Is it necessary to file a motion to compel discovery when the other side refuses to respond to discovery requests?

    (They are not cooperating because they do not have any evidence, but are unwilling to admit that they do not have any evidence.)What is the name of your state?
    My state is California. What is a motion to compel and how does it effect the status of my case?
  15. #15
    weenor is offline Senior Member
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    Quote Originally Posted by andreasalina
    My state is California. What is a motion to compel and how does it effect the status of my case?


    Please start your thread with that question.

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