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Discovery Dreaming

January 20th, 2015 by admin

Discovery Dreaming
By C. Austin Reams

Discovery. I know what you’re thinking. Whoopee! Most attorneys and judges alike love talking about it. At water fountains, gyms, football games, hair salons and barbershops, and holiday gatherings. Everyone revels in the opportunity to chat up the differences between Section 3226 and Federal Rule 26, mull the joyful meaning of a “good faith” conference, and ponder whether it’s more proper to say “Requests” or “Request” for Admission. What fun!

Not!

In fact judges may prefer to order attorneys in a discovery dispute to engage in a duel of death. And lawyers may sometimes feel like that’s a viable option.

All kidding aside, many hate discovery. Nonetheless, ‘tis the season for New Year’s resolutions. Why not ponder whether Oklahoma could benefit from a couple of tweaks to its Discovery Code? (Abandon all hope, ye who read further.)

In this instance, there are two considerations in the offing: (1) a 45-day limitation on making motions to compel; and (2) the mysterious “separate statement” to be attached to any motion to compel written discovery, both of which are used in the jurisprudence of the State of California.

The 45 Day Window

A party seeking supplemental responses to the likes of Interrogatories or Requests for Production must engage in a good faith conference and make a motion to compel within forty-five (45) days of service of the offending written responses, otherwise the right to compel further responses is waived. (California Civil Procedure Sections 2033.290(c), 2031.310(c).) Failure to do so arguably triggers a jurisdictional limitation on the trial court, which means that the belated moving party is out of luck unless the opposing party previously agreed to an extension. The trial Court may have no authority to grant an extension of time to the out-of-time party.

Imagine the profound effect such a rule has on expediting cases through discovery and towards resolution. Parties must raise discovery issues sooner than later, and failure to do so can result in greater pressure to settle, depending on the circumstances. A down-side may be that parties are pressured to bring disputes to the court sooner, even when discovery can be had from other sources, such as depositions, leading to more filed motions. On the flip side, parties faced with a motion to compel supplemental responses may believe it wise to grant extensions to the moving party so as to not burden the court with unnecessary discovery motions.

Hmm. We can imagine what to talk about at half-time during the next Thunder game.

The Separate Statement

California also requires parties moving to compel further responses to written discovery to attach what is known as a “separate statement of objections or disputed answers,” which is a single document that includes a verbatim recital of (1) each separate discovery request to which a supplemental answer is sought, (2) the response or objection to each request, and (3) the arguments and authorities for compelling further responses. (California Rules of Court, Rule 3.1345.) The responding party must also prepare and file a “separate statement” in the same form, with (4) an added category of all arguments and authorities for denying the motion to compel.

As such, the separate statement attached to the responsive brief is often the key document reviewed by the trial court in consideration of the motion. Some benefits to the use of a separate statement may include: the judge may review a single document in making her or his ruling, instead of flipping back and forth between the pages of the moving brief, the responsive brief, and the other discovery requests and responses, typically attached as separate documents in Oklahoma jurisprudence. As described by this Rule, “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 the full response.”

True, the subject discovery requests are filed with motions to compel in Oklahoma and discussed in the brief. But for the most part, it’s often impossible to list all request, responses, arguments, etc., without exceeding the page limitation on briefs. A con to this separate statement instrument may be that it results in often voluminous motions, including the brief, separate statement, and attachments, filed and processed by the court clerk and judges. On the other hand, moving parties must ask themselves whether their motion to compel is really worth such an effort.

Food for thought for the Discovery powers that be. What fun!

Happy New Year!

C. Austin Reams

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