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Anatomy of A California Product Defense Case, Part IV

By Bruce Nye

            This is the fourth and final post on the nuts and bolts of defending a product liability case in California.  Some of the guidelines that have appeared in these posts are not limited to California, and some of them aren?t limited to product liability defense.  But in the majority of  this last post, we?re going to talk about the part of a case that is most often the key to a product liability case filed anywhere in the United States, and a set of applicable rules, set out in California?s Code of Civil Procedure, that as far as I can tell are unique.  Those are our rules on expert disclosure and expert deposition.

 

            Before we get to that, we?ll post briefly about the other part of what I?m calling Phase III discovery, working with the discovery closure dates and sending out follow-ups to written discovery.  All of that appears right after the jump.

 

Working the Angles of Discovery Closure:

             Stating the rules is simple.  Working with them is often complex. 

             Rule 1:  Non-expert discovery closes thirty days before the first trial date.  Unless the parties agree otherwise, or the court orders otherwise, or the case mis-tries, is given a new trial, or goes up on appeal and comes back down, it doesn?t ever open again.  Code of Civil Procedure § 2024.020. 

 

            This means that if the first time the case is set for trial, the assigned trial date is, say, Monday, February 2, 2009, thirty days back would be Saturday, January 3, 2009.  But under Code of Civil Procedure § 2016.060, if the last day to perform an act falls on a weekend or court holiday, then the time is extended to the next court day.  So discovery in this hypothetical will remain open until Monday, January 5.  Non-expert depositions must, at least, be started by January 5, or they are barred.  And as we discussed last time, deposition notices have to be served ten days in advance by personal service, twelve days by overnight or fax service (if the parties have agreed in writing to fax service) or fifteen days by mail.  So the last day to serve a notice of deposition by personal service is December 26; the last day for overnight or fax service is Christmas Eve, December 24.  And if you are serving by mail, fifteen days before January 5 is Sunday December 21.  But since service has to be at least ten days before the deposition plus five days more for mailing, the last day for service doesn?t bounce forward to Monday; it bounces back to the previous Friday, December19, a full seventeen days before your deposition.  And if you mail your notice later than that, then your proposed deposition on January 5 is barred for failure to give adequate notice, and it can?t go forward any later because discovery is closed. 

 

            That?s the easy part.  Now let?s talk about written discovery.  You?ll recall from a couple of posts back that a party who receives interrogatories, requests for admissions or an inspection demand has thirty days to respond if these discovery pleadings are personally served, thirty-two days if service is by overnight or fax service (and, in the latter instance, if there is a written agreement for fax service) or thirty-five days if service is by mail.  Nobody has to respond to written discovery after discovery has closed.  So any written discovery that would be due, in our hypothetical, later than January 5, 2009 can be ignored ? it?s beyond the discovery cut-off.  So the last day to serve interrogatories or the other common forms of written discovery is December 5 if personally served, December 3 if served by overnight delivery or fax, and, because the intervening weekend extends the five additional mailing days to seven, November 28 for service by mail.  If you want to mail ?last minute? written discovery and get a response, you have to get it out there as much as sixty-six days before the initial trial date, or the other side won?t have to respond to it.

 

            But actually, you probably have to get it out quite a bit sooner than that.  Because there is a second discovery cut-off.  And that?s Rule 2.

 

Rule 2:  The last day a party can have a hearing concerning a discovery motion is fifteen days before the initial trial date, and, as with the discovery cut-off, this doesn?t reopen unless the parties stipulate to it, the court orders it, the case is mis-tried, ordered re-tried or sent back for another trial after appeal. 

 

So, let?s suppose the other side gets your ?last minute? interrogatories, and decides not to answer them.  Or worse yet, she decides to respond, but give meaningless, inadequate responses and meritless objections.  And she mails them on the last day ? January 5 ? and you receive them in the mail the next day, January 6. 

 

Before you can make a motion to compel further answers, you have to make a good faith effort to meet and confer with the other side under Code of Civil Procedure § 2016.040.  Let?s assume that somehow you manage to accomplish that by the next morning, the meet and confer process fails, and you?re ready to file your motion the afternoon of January 7.  Your last day to have the motion heard is supposed to be fifteen days before the February 2 trial date.  But that?s Sunday, January 18, so you actually have until Tuesday, January 20 to have the motion heard (Monday is Martin Luther King Day, a court holiday). 

 

Under Code of Civil Procedure § 1005, you need to give sixteen court days notice of your motion if you serve it personally (an extra two days, of course, for fax or overnight, and an extra five for mailing).  But uh-oh:  to get sixteen court days back from your last available hearing day, January 20, you need to skip not just through four weekends, Martin Luther King Day and New Years, but Christmas Day as well.  Your motion needed to be served by hand no later than Christmas Eve, almost two full weeks before you received the inadequate answers.  So it doesn?t much matter how lousy the responses were:  your remedy for lousy answers is barred by the discovery motion cut-off.

 

And that is the basis for Rule 3:

 

Rule 3:  Your practical deadline for serving written discovery in a case of any complexity ? such as a product liability case ? is probably something more like ninety to a hundred days before trial.  While the court might give you leave to have your discovery motion heard closer to trial, or on shortened time, it might not.  As in much of live, there are no guarantees.

 

But there is one exception:  supplemental discovery, and that?s the subject of the next part of our discussion of phase III discovery.

 

Follow-Up Discovery ? For Once, Something Is Easy

 

            First, here?s what you don?t get in California:  you don?t get continuing discovery obligations.  If Plaintiff Jones gives an answer to an interrogatory, and either (a) he learns later it isn?t correct; or (b) it later becomes incorrect, incomplete or out of date, she doesn?t have to make a correction.

 

            But here?s what you get instead:  you get the right to serve ?supplemental? interrogatories and inspection demands and requests for admissions.  These are as simple as they can be.  For example:

 

            A supplemental interrogatory, as permitted by Code of Civil Procedure § 2030.070 might say ?If any answer you have given to any interrogatory in this case has changed, or is not presently current, complete and up-to-date, please supplement your response with any additional information.? 

 

            A supplemental inspection demand, as permitted by Code of Civil Procedure § 2031.050  might say:  ?If any response you have given to an inspection demand in this case has changed, or is not presently current, complete please supplement your response with any additional information, and produce any supplemental responsive documents at the Law Offices of ____________ on [date] at [time].?

 

           

            With supplemental responses, you need not worry about the motion cut-off.  There is no provision in the Discovery Act for motions related to supplemental discovery.  But if a responding party fails to provide responsive information when served with supplemental discovery, the propounding party has every right to move at trial to prohibit introduction of evidence not provided in the original discovery  responses if that additional information has not been provided when the opportunity was presented by the service of supplemental discovery.

 

Expert Discovery:  The  Fifty Day Fire-Drill

 

            Non-Californians are often surprised to learn of our method of expert discovery.  The rules can be easily described.  Designing a rational expert discovery plan that follows them to the letter, however, is something else again.

 

            Here are the rules (yes, it's more rules -- but hey, that's what lawyers do, right?):

 

1. The identity, qualifications, work conducted by and opinions of the parties? experts are all protected by the work product doctrine until and unless the procedures for expert disclosure are followed.

 

2. Once a case has been set for trial, any party may serve a ?Demand for Disclosure of Experts? under Code of Civil Procedure § 2034.230.  This demand can also require all other parties to produce ?expert writings,? generally construed to mean reports, notes, files, and other documents having to do with the experts? work and opinions. 

 

3. If any party has served a demand, then fifty days before trial, Code of Civil Procedure § 2034.260 requires that all parties must serve a disclosure with the names and addresses of their trial experts, or, if they have none, a statement that they do not intend to call expert witnesses.  As to any ?retained? expert, party or employee of a party who will be called to give expert testimony (§ 2034.210), the disclosure must include a declaration under penalty of perjury with brief narrative descriptions of the witnesses anticipated testimony and qualifications, a representation that the expert has agreed to testify at trial, a statement of the expert?s charges for deposition testimony and for consulting, and a representation that the expert will be prepared to give a meaningful deposition, including the opinion and its basis, that the expert is expected to give at trial.

 

4. Any party may notice the deposition of a disclosed expert, and, regardless of the location of the expert, the party who has retained an expert, or disclosed a party or party employee as an expert, will, in response, be required to bring the expert to California for deposition.  Travel time and expenses will be borne by the disclosing party, not the deposing party.

 

5. The deposing party will bear the expense of the retained expert?s time during the deposition itself, but not travel time, preparation time, etc.

 

6. Expert depositions must be completed no later than fifteen days before the initially set trial date.

 

OK, let?s examine this a little more closely.  Fifty days before trial, you disclose your experts, and you serve your disclosure by mail.  Everybody gets the disclosures the next day, forty-nine days before trial.  Depositions notices must be ten days if served personally.  So let?s suppose all the expert depositions in a complex product liability case get served personally forty-nine days before trial, setting the depositions ten days or more later.  And expert discovery must be completed in the interval between thirty-nine days before trial and fifteen days before trial, a fourteen day period.

I suppose if none of the lawyers has any other cases or anything else to do, and all of the experts are cooling their heels and twiddling their thumbs while they wait for their expert depositions, this might be possible.  In real life, however, for a complex product liability case, the Discovery Act procedures are completely untenable.  So that brings us to CalBizLit?s Practical  Rules for dealing with expert discovery in a California Product Liability Case (yep, even more rules.  See comment above):

1. When possible, the parties should negotiate their own realistic schedule for disclosing experts and taking their depositions.  Code of Civil Procedure § 2024.060 allows the parties to change the deadlines and cut-offs.  In a complicated case, the parties should pick up the telephone and set a schedule that makes sense.
2.   If they can?t negotiate a schedule because of a lack of cooperation on the plaintiff side, the defense should bend over backward to cooperate, while holding the plaintiff to the code.  For example, defense counsel can (a) send out an expert disclosure that tenders experts for specific, available dates for all his disclosed experts; but (b)  send a notice immediately upon receipt of plaintiff?s disclosure that sets all the experts the tenth day after receipt of the disclosure at one hour intervals.  This puts defense counsel in the position of having been completely reasonable ? having arranged for real dates and times for depositions of defense experts, while demanding that plaintiff?s counsel do her homework, comply with the code and produce experts as required.  It also puts defense counsel in the best possible position for demanding priority of discovery, something that is often important when it comes to experts. 

 

California law provides that retained experts or party experts must appear for deposition within seventy-five miles of the courthouse where the case is pending so long as the opposing party notice their depositions.  Per Code of Civil Procedure § 2034.450, the noticing party can either tender the expert?s fee for testifying with the notice, or at the commencement of the deposition, and the tender should be based on the anticipated length of the deposition.  If the deposition goes over the estimated time, the balance is due within five days.

Here?s something that isn?t covered by any law but is, in my view critical.  There is a tendency among experienced product liability counsel to use the expert?s deposition, at least in part, to demonstrate how knowledgeable he is, and engage in a debate with the expert over some of the more arcane design and other liability issues.  While this probably does no harm, it rarely results in any testimony that is of much use at trial.  And in any event, counsel should never forget, at a minimum, to ask point blank the following, somewhere in the course of the deposition:  (a)  please list for me all of the opinions you have concerning this case;  (b)  please provide the bases for each of your opinions;  and (c)  please describe (or, hopefully, produce) everything you have read, reviewed, considered or relied on in the course of forming your opinions.

 

Once those depositions are done, the next activity is trial.  But that is for a different discussion.

Full post as published by CalBizLit on January 18, 2009 (boomark / email).