ARC Articles

Here’s An Idea - Mediate the Discovery Dispute!

by: Richard M. Coleman, Esq.
©The Daily Journal Corporation

Some years back, I was in court, appearing on a motion I filed on behalf of a client to compel answers to interrogatories. When the case was called, the judge reiterated what he stated in his tentative that “he was not impressed by an inch and a half of papers being filed.”

In not my wisest moment, I replied: “I read the tentative and, if I had not submitted that inch and a half of papers, I would have been reading a tentative that said: “Denied for failure to follow the Rules of Court.”

An unwise remark but an accurate one, and one for which the Court made me pay – but that is another story.

Today, I am a recovering trial lawyer and my exposure to discovery disputes comes in the role of discovery referee. The more discovery disputes I see referred to me, the more I wonder why attorneys do not use mediation to resolve them. The alternative, filing and opposing motions to compel, places enormous paperwork burdens upon attorneys, increasing expenses for clients.

California Rules of Court, Rule 3.1020 [formerly Rule 335] requires a separate statement for any motion involving the content of a discovery request or the responses to such a request. This includes motions to compel further responses to requests for admission, to interrogatories and to demands for inspection/production. It also includes motions to compel answers at a deposition or to compel or to quash the production of documents or tangible things at a deposition. The separate statement is required for motions for medical examination over objection and for motions for issue or evidentiary sanctions.

How onerous is the burden appears in Rule 3.1020( c ) which requires that the separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and response. There can be no incorporation of other material by reference. What must be set forth is spelled out:

For each interrogatory, request for admission, deposition question, or inspection demand to which a further response, answer, or production is requested, the separate statement must include the text of the disputed item, the text of each response, answer, or objection, a statement of the factual and legal reasons for compelling further responses, answers, or production as to each item; and, if necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it.

Further, if the response to a particular discovery request is dependent upon the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth.

Finally, if the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them shall summarize each relevant document.

Little wonder the papers are voluminous.

Would it not make sense, and save a mountain of expense and aggravation, for the parties to mediate the discovery issues? The parties should be able to brief what is in dispute without the pages of repetition required by the Rules.

Mediation is now widely accepted as a reasonable and legitimate way to resolve cases short of trial. That was not the case 20 years ago. Mediation is equally advisable as a vehicle to resolve discovery disputes.

Richard M. Coleman, a Fellow of the American College of Trial Lawyers and former president of the Los Angeles County Bar Association, is a mediator with Alternative Resolution Centers [ARC] who also serves as discovery referee. He is on the faculty of Pepperdine’s Straus Institute for Dispute Resolution.

copyright © By Richard M. Coleman, Esq.

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