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How to Avoid Discovery Sanctions

Earn one hour of General MCLE credit by reading the article below and answering the questions on the Self-Study MCLE test. Send your answers, along with a check ($30 per credit hour for CCCBA members / $45 per credit hour for non-members), to the address on the test form. Certificates are dated as the day the form is received.

Conducting written discovery is a crucial part of litigation. It serves an important purpose and is a practical and efficient way to obtain information and documents. Although utilizing written discovery is important and valuable if used properly, how you conduct yourself through the discovery process is also crucial and can have tremendous consequences for your client’s case. If you abuse the discovery process, you expose yourself and your client to sanctions.

Misuse of the Discovery Process

Code of Civil Procedure section 2023.030 permits the court to impose an array of discovery sanctions against anyone engaging in conduct that is found to be a “misuse of the discovery process.” The discovery statutes broadly define what constitutes such a misuse of the discovery process:

Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.
Using a discovery method in a manner that does not comply with its specified procedures.
Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment or oppression, or undue burden and expense.
Failing to respond or to submit to an authorized method of discovery.
Making, without substantial justification, an unmeritorious objection to discovery.
Making an evasive response to discovery.
Disobeying a court order to provide discovery.
Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.
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.¹

You—and anyone engaging in the offending conduct—may be monetarily sanctioned for any of the above conduct.² Section 2023.030 mandates that the court impose a monetary sanction where such a sanction is authorized by any provision of the discovery statutes unless you can show “substantial justification” for your position or that imposition of sanctions is “unjust.”³ Sanctions are not meant to punish; they are intended to prevent misuse of the discovery process.⁴

Failure to Confer

The court may also award sanctions under Code of Civil Procedure section 2023.020, which provides: “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

A failure to confer is a separate basis for monetary sanctions. Thus, counsel should respond to “meet and confer” letters promptly and address, in good faith, all issues raised by the propounding party. Even if your client’s position on the substantive discovery issues prevails, you may still be subject to sanctions if the court finds that you failed to adequately confer with opposing counsel to avoid a discovery motion.

Failure to Provide Responses or Providing Inadequate Responses

If your client fails to provide timely responses, the propounding party may move to compel your client’s responses and seek monetary sanctions against you and your client.⁵ By failing to provide timely responses, you expose yourself and your client to sanctions and your client waives any objections, including those based on any privilege or attorney work product.⁶

If your client provides evasive, incomplete or insufficient responses, fails to produce all non-privileged responsive documents or objects without merit, the propounding party may also move to compel and seek sanctions against you and your client.⁷

The court must impose monetary sanctions against any party, person or attorney who unsuccessfully makes or opposes a motion to compel further discovery responses unless the court finds substantial justification or that imposition of sanctions is unjust.⁸

The court may also impose non-monetary sanctions for abuse of the discovery process. Those sanctions include: (1) issue sanctions; (2) evidentiary sanctions; (3) terminating sanctions; and (4) contempt sanctions.⁹

These forms of sanctions are usually issued when there are egregious abuses of the discovery process such as violating discovery orders, continuous use of obstructive tactics, “stonewalling” and repeatedly providing meaningless responses to written discovery.¹⁰ Discovery sanction orders are “subject to reversal only for arbitrary, capricious or whimsical action.”¹¹

Some key points to remember in avoiding discovery sanctions—do not interpose objections that are merely “boilerplate.” You should take a critical approach to the specific objections you do make so that you can defend them as having merit if challenged.

If you are on the fence about the validity or force of a particular potential objection, you may well choose to err on the side of not making the objection unless it is related to a privilege and your client wishes to avoid a potential waiver. Boilerplate objections are sanctionable even if made only to avoid a waiver of the attorney-client privilege.¹²

Discovery objections must be specific and you must be able to justify your objections; otherwise, you or your client may face sanctions if a court decides that there was no substantial justification for opposing a motion to compel further responses which challenges the substance of the objections.

You should, therefore, always seek to counsel your client to provide responses in good faith and as best as the client can.¹³ Discovery responses must “reveal all information then available to the party” and cannot “plead ignorance to information which can be obtained from sources under [the party’s] control.”¹⁴ Like witnesses, parties “are required to state the truth, the whole truth, and nothing but the truth in answering written interrogatories” and a party may not provide “deftly worded conclusionary answers designed to evade a series of explicit questions.”¹⁵
On the flip side, strongly consider your grounds before filing a motion to compel. If your motion is denied and if the court finds the motion is made without substantial justification, the court will issue sanctions.

Written discovery is an invaluable tool used in litigation. Just be sure to use it for its intended purpose; otherwise, you expose yourself and your client to sanctions.

Earn one hour of General MCLE credit by answering the questions on the Self-Study MCLE test. Send your answers, along with a check ($30 per credit hour for CCCBA members / $45 per credit hour for non-members), to the address on the test form. Certificates are dated as the day the form is received.

[1] See Code Civ. Proc. § 2023.010(a)-(i).

[2] Code Civ. Proc. § 2023.030(a).

[3] Id.

[4] Crummer v. Beeler (1960) 185 Cal.App.2d 851, 858.

[5] Code Civ. Proc. §§ 2030.290, 2031.300 and 2033.280.

[6] Code Civ. Proc. §§ 2030.290 (a), 2031.300(a) and 2033.280(a).

[7] Code Civ. Proc. §§ 2030.300, 2031.310 and 2033.290.

[8] Code Civ. Proc. §§ 2030.300 (d), 2031.310(d) and 2033.290(d).

[9] Code Civ. Proc. § 2023.030 (b)-(e).

[10] See e.g., Williams v. Travelers Insurance Company (1975) 49 Cal.App.3d 805, 810; Liberty Mutual Fire Insurance Company v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.

[11] Id. at 1102.

[12] See Korea Data Systems Company Ltd. v. Superior Court (Aamazing Technologies Corporation) (1997) 51 Cal.App.4th 1513, 1516.