Category: Litigation Tips

On December 1, 2015, some significant changes to the Federal Rules of Civil Procedure will take effect.  Among the changes are revisions to Rule 26(b), which defines the scope of discovery.  The amendments will place new constraints on discoverable information.  Attorneys and clients should be aware of how these changes will affect their discovery requests to opposing parties, and also how they can use the amendments to limit overbroad requests.

The amended FRCP 26 will clarify the scope of discovery by requiring that discovery is both “relevant to any party’s claim or defense” and “proportional to the needs of a case.”  Courts are currently permitted to consider proportionality factors in order to limit discovery, but the amendment more clearly ties the proportionality factor to the scope of discovery.

In addition, the amendments will remove the well-known current language in Rule 26(b)(1) that allows discovery of information “reasonably calculated to lead to the discovery of admissible evidence.”  It will be replaced with the statement: “Information within this scope of discovery need not be admissible in evidence to be discoverable.”  According to the rule’s committee notes, the change is meant to correct the common misuse of the “reasonably calculated” phrase in defining the scope of discovery.  Instead, the new language is designed to allow discovery of non-privileged inadmissible information “so long as it is otherwise within the scope of discovery” (i.e., information that is both relevant and proportional).

These changes will likely limit the discovery burden that parties can attempt to impose on one another and encourage narrower discovery orders, especially in cases involving relatively small amounts of damages or clients with less resources.  All counsel practicing in federal court should stay abreast of these developments.

Earlier this month, Governor Jerry Brown signed legislation aimed at helping courts dispose of motions for summary judgment and summary adjudication more quickly.  Under Senate Bill 470, sponsored by the Judicial Council and California Judges Association, courts deciding summary judgment and adjudication motions need only consider evidentiary objections they deem material to the motion.  Objections not ruled on by the judge will be preserved for appellate review.

The goal of the bill is to “reduce and better direct the time and effort of trial courts” in ruling on these motions.  The impact of the legislation on practitioners remains uncertain, but in light of this new rule, attorneys would be well advised to consider streamlining their objections on summary judgment in order to minimize the risk that important ones are not overlooked.

At Lewis & Llewellyn, we routinely handle matters at both the trial court and appellate level.  As any litigator should know, whether or not an order is appealable, and the timing of the notice of appeal, can present some complex issues.

Last month, California’s Fifth District Court of Appeal issued an opinion holding that a “judgment” filed by a trial court was not, in fact, final and therefore was not appealable.  The lesson for lawyers – don’t file a notice of appeal until all the issues in your case have been decided, even if all that remains to be determined is the amount of punitive damages.

In Baker v. Castaldi, 235 Cal. App. 4th 218 (2015), plaintiff sued defendants for allegedly stealing his antiques.  Baker sought compensatory and punitive damages.  Phase one of the trial addressed liability and compensatory damages, as well as whether Baker was entitled to punitive damages.  Phase two, if required, would address the calculation of those punitive damages.

At the conclusion of phase one, the court issued a document titled “judgment” awarding plaintiff $610,500 in compensatory damages plus interest and costs against the defendants.  Punitive damages, which the court found were warranted, were to be determined in phase two which the court described as a separate trial.

Several appeals of the “judgment” were filed.  The Court of Appeal for the Fifth Appellate District, however, ruled that this “judgment” was neither final nor appealable.

The Court held, “[a] judgment is final where no issue is left for future consideration except the fact of compliance or noncompliance with the order.”  In this instance, the trial court issued a judgment regarding compensatory damages and liability, but still specified that the amount of punitive damages to be awarded would be decided in a subsequent proceeding.  Therefore, the Court of Appeal reasoned, “the ‘judgment’ did leave open an issue for future consideration: The amount of punitive damages.”

The lesson for litigants is clear.  A party cannot avoid a decision on damages by immediately appealing a ruling on liability.  As the Court of Appeal made clear, the amount of damages is “essential to a final determination of the rights of the parties.”  Therefore, the appeal will have to wait.

Many attorneys assume that using a peremptory challenge means they are entitled to reject a potential juror without stating a reason.  One prosecutor found out the hard way that this is not entirely true, particularly when faced with a Batson/Wheeler motion.

In People v. Cisneros, 2015 WL 521878 (Cal. App. 2d. Dist. Feb. 9, 2015), a recent opinion published by the Court of Appeal, a man was accused and convicted of making criminal threats against his girlfriend.  He appealed, alleging that the prosecutor had discriminiated against men in exercising peremptory challenges during jury selection.  The Court of Appeal agreed.

The Court of Appeal found that the prosecutor – who had used seven of her nine peremptory challenges to strike men from the prospective jury – had failed to provide an adequate, gender-neutral reason for exercising two of the challenges after opposing counsel raised Batson/Wheeler motions.  For the two challenges found to be improper, the prosecutor asserted, when asked by the trial court, that she believed the next jurors in line were each a “better fit.”

As the Court of Appeal held, “whenever counsel exercises a peremptory challenge, it necessarily means that he or she prefers the next prospective juror to the one being challenged (whether the individual qualities of the next person are known or unknown).  It is, in effect, no reason at all.  Thus, simply reciting this truism while striking a prospective juror who is member of a protected class is not an adequate nondiscriminatory justification for the excusal, particularly when, as here, in each instance to reach the preferred next prospective juror the prosecutor elected to strike a prospective male juror rather than one of the many prospective female jurors then seated in the jury box.”

However, as the Court of Appeal noted, the “bar [is] not high” – the prosecutor’s explanation for striking another juror for being “kind of rough around the edges” and another for being “overly-analytical” survived Batson/Wheeler motions.  Therefore, every lawyer should have a valid reason in mind when exercising a peremptory challenge, as long as that reason isn’t the next juror would be a “better fit.”

At Lewis & Llewellyn, we represent some of the world’s leading companies in responding to third party subpoenas, in both state and federal courts across the country.  Practitioners should take note that the Ninth Circuit Court of Appeals recently created some potentially helpful law regarding cost shifting for federal third party subpoenas.  Under Federal Rule of Civil Procedure 45(d)(2)(B)(ii), a court order commanding production in response to a subpoena “must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.”  Though this language was added when the Rule was amended in 1991, it had not been interpreted by the Ninth Circuit until the recent decision in Legal Voice v. Stormans Inc., 738 F.3d 1178 (9th Cir. 2013).

In Legal Voice, Stormans, Inc. sued Washington State, seeking to enjoin enforcement of rules requiring pharmacies to maintain and dispense certain drugs.  Stormans subpoenaed the Northwest Women’s Law Center (“Law Center”), which had played an important role in the law’s enactment, but was a not a party to the underlying action.  The Law Center objected to the subpoena, and Stormans moved to compel.  The District Court granted the motion to compel as to six of the fourteen requests in the subpoena, but refused to grant the Law Center’s request under Rule 45(d)(2)(B)(ii) for Stormans to pay its cost of compliance.  On appeal, the Ninth Circuit overturned the District Court’s ruling, holding that “Rule 45(d)(2)(B)(ii) requires the district court to shift a non-party’s costs of compliance with a subpoena if those costs are significant.”  Id. at 1184.

Importantly, the court found that the rule “provides no exceptions,” “is mandatory,” and that “when discovery is ordered against a non-party, the only question before the court in considering whether to shift the costs is whether the subpoena imposes significant expense on the non-party.  If so, the district court must order the party seeking discovery to bear at least enough of the cost of compliance to render the remainder ‘non-significant.’”  Id. (citing references omitted).  The court subsequently found that the $20,000 the Law Center had incurred complying with the subpoena was “significant.”

This case is a potentially powerful tool for battling overly burdensome or costly discovery requests served on third parties.  Attorneys on the receiving end of a subpoena, or even a motion to compel, should keep this case in mind in responding – and potentially objecting – to subpoenas here in the Ninth Circuit and elsewhere.

At Lewis & Llewellyn, we practice in state and federal courts throughout the country. Attorneys who practice in federal court in Southern California – specifically the Central District of California – should be aware of new local civil rules that took effect on June 1, 2014.  The amended rules chiefly concern, among other things: (i) mandatory chambers copies for all pleadings filed electronically with the court; (ii) formatting for Supreme Court case citations in briefs, and (iii) additional sanctions on attorneys and parties for failure to follow local rules.

These seemingly picayune details can often determine whether a court grants or denies a critical motion.

Until recently, a litigant filing a motion in San Francisco Superior Court could simply notice the hearing for a date of his or her choosing, so long as it complied with the statutory minimum of 16 court days’ notice.  However, an amendment to local rule 8.2 requires the moving party to obtain a hearing date and reservation number by sending an email in advance to the Court.  After obtaining the hearing date, the moving party must file the motion within 24 hours.  The Court is setting limits on the number of matters to be heard each day to better manage the calendar.  In light of the new rule, the practitioner would be well advised to plan in advance and not leave the filing of motions to the last possible day.

Many California attorneys likely assume that you can use denials to requests for admission as admissible trial evidence.  Plaintiff’s counsel in Gonsalvez v. Li, 2015 WL 164606 (Cal. Ct. App. Jan. 13, 2015) made the assumption, and it cost him a jury verdict of more that $1.2 million.

In a recent decision by the California Court of Appeal, the Court held that California’s discovery statutes do not permit use of a party’s denial or lack of admission in response to a request for admission as evidence at trial.  Gonsalvez, 2015 WL 164606 at *7.  In Gonsalvez, a BMW salesman, Kenneth Gonsalvez, sued defendant Ran Li after Li caused an accident during a BMW test drive, resulting in extensive injuries to Gonsalvez.  At trial, plaintiff’s counsel questioned Li about his qualified denials to various requests for admission, including a request that he admit that he was “driving too fast for the conditions.”  Plaintiff’s counsel, over defense counsel’s objections, again cited to Li’s qualified denials in his closing argument, and the jury returned a verdict of more than $1.2 million in Gonsalvez’s favor.

On appeal, Li’s counsel argued that the trial court erred in permitting plaintiff’s counsel to examine Li about his negative responses to Gonsalvez’s requests for admission.  The Court agreed with Li’s counsel, vacating the judgment and remanding the case to the trial court.  After noting a “surprising paucity of relevant authority” on the topic, the Court highlighted that the relevant discovery statues only explicitly “provide that admissions in response to RFA’s are binding on the party at trial.” Id at *5 (emphasis in original); see also Cal. Civ. Proc. Code section 2033.410.  Based on this language, and an analysis of authority in other jurisdictions, the Court ultimately held that “denials of RFA’s are not admissible evidence in an ordinary case, i.e., a case where a party’s litigation conduct is not directly in issue.”  Gonsalvez, 2015 WL 164606 at *7.

This case serves as an important reminder to litigators to flush out denials to requests for admission before trial.  Whether through special interrogatories, depositions, or even meet and confer correspondence, litigators should be sure to get to the bottom of RFA denials before it is too late.

Here at Lewis & Llewellyn, we frequently handle subpoena issuance and compliance in federal court, particularly for our Fortune 500 clients in the technology and financial sectors.  Effective December 1, 2013, Congress has made significant changes to federal subpoena practice.
Among other things:

• All subpoenas will now issue from the court where the case is pending, rather than the court where compliance is required.  Rule 45(a)(2).
• New Rule 45(a)(4) clarifies that before a “documents only” subpoena is served on the witness, notice and a copy of the subpoena must be served on all parties.
• The territorial limitations on subpoenas issued to non-party witnesses have been made more explicit.
• New territorial limitations have been placed on subpoenas issued to parties and party officers.
• Motions to quash will now presumptively be heard in the court for the district where compliance is required.

As most litigators know, e-filing has been commonplace in the Federal Courts for years.  However, the California Superior Courts have been slower to adopt this practice.  Recently, the San Francisco Superior Court has published Proposed Local Rules that, if adopted, may require attorneys to electronically file and serve nearly all civil pleadings effective January 1, 2014.

The proposed rule changes increase significantly the types of cases designated for mandatory e-filing including lawsuits involving breach of contract, business torts, personal injury and unfair competition.  Note, however, that self-represented parties and non-parties are exempt from the proposed e-filing requirements, and would still have to be served conventionally.