CASE MANAGEMENT ORDERS

Step 8: Manage Discovery

The court should devise a comprehensive discovery plan that controls both the scope and the timing of all discovery. Such a plan is necessary to prevent the following abuses:

1.The undertaking of extensive discovery before all parties are joined, which tends not only to cause repetitive discovery procedures, but also to raise complex issues as to the usability of such discovery at trial;

2. Numerous discovery disputes involving timing and scheduling conflicts;

3. Repetitive procedures in which the same questions are put serially to each complaining homeowner or to each foreman and superintendent who worked on the project;

4. Successive demands to inspect the same records or property;

5. Permitting the scope of discovery to become so excessive as to prevent the case from being ready for trial at a foreseeable time;

6. Permitting discovery to be used as a weapon to exact substantial "cost of defense' contributions to settlement from parties who are only marginally involved or not culpable.

After imposing a stay upon all discovery the court may solicit proposals from counsel for a systematic plan for completing all necessary discovery. Every proposal submitted should be prepared on a timeline so that a precise date upon which each phase of discovery will be completed is shown. As an alternative, the court may appoint a discovery referee, pursuant to Code of Civil Procedure section 639(e), to confer with counsel and recommend a discovery plan. Such an appointment does not require agreement by the parties and the discovery referee will then be available to hear other discovery disputes that may arise. In reviewing these proposals and arriving at a workable plan, the court may wish to consider the following:

A. Inspection of documents. A timely exchange of relevant documents can be accomplished by ordering the establishment of a document depository. The depository will usually be a commercial copying business which will agree to provide space for the temporary storage of all documents deposited by the parties, a facility for the parties to use, to inspect the documents and designate those that they wish to copy, and reasonable rates to be charged for the making of copies. A committee of counsel representing the various classes of interests in the litigation may be appointed by the court to solicit proposals from, and select a suitable depository subject to court approval. The committee should be ordered to make said selection and report it to the court in writing by a date certain, with copies served on all parties on the service list. The report should include the name, address, and telephone number of the depository, the hours during which documents may be inspected, the rates to be charged for copies, and any other pertinent information.

After giving the parties a reasonable opportunity to object to the depository selected by the committee, the court may approve the selection and order all parties to deposit their documents therein by a date certain. The order should designate the documents to be deposited, and should direct that any objection or representation of inability to comply must contain all of the information required by the Discovery Act (Code Civ. Proc., §2031(f)(2)&(3)), and must be served on all parties on the service list by the date ordered for deposit of the documents in the depository.

All aspects of document production should be controlled by the imposition of finite time limits. If the order that the parties deposit their documents in the depository is issued on date X, the time limit for depositing the documents can be X plus 30, the time limit for the parties to inspect the document in the depository and order copies can be X plus 90, and the time limit for hearings on motions to compel further production can be X plus 135. These dates can be shortened or lengthened as appropriate, but specific time limits should be imposed. If the parties are permitted to defer inspection of documents until shortly before trial, the trial date will have little, if any, credibility, because discovery will not have been completed.

The court should anticipate the possibility that one or more parties will not comply with the order to deposit documents in the depository by the deadline, and it should take steps to minimize the disruption to the case management order that will be caused by such disobedience. The committee appointed to select the depository can be ordered to submit the manes of all non-complying parties to the court or to the discovery referee within five days after the deposit deadline, so the court or discovery referee can immediately issue orders to show cause to said parties. The court may also consider forewarning the parties that substantial, not nominal, monetary sanctions will be imposed for failure to deposit documents in the depository on time.

B. Interrogatories. The indiscriminate, bilateral exchange of boilerplate interrogatories among the parties should be prohibited. One approach that may be used is to stay all further interrogatories pending completion of the following:

a) A statement of defects claimed by the parties

b) A statement by the prime contractor or developer attributing potential responsibility for each defect claimed by the plaintiffs to specific subcontractors, material men or design professionals;

c) A statement of work by each defendant and cross-defendant identifying the nature of its participation in the project and the material men and sub-subcontractors to which it delegated any portion of its responsibility;

d) A statement of insurance from each party designating its carriers, policy limits and types of coverage;

e) A statement by the plaintiffs of the method and cost of repair of the defects listed.

The foregoing statements should be ordered by finite dates with no further interrogatories permitted thereafter, except by order of the court upon a showing of good cause.

Another approach is to appoint a committee or committees to develop a unified set of interrogatories to be sent to the:

a) plaintiffs;

b) developer or prime contractor;

c) subcontractors and material men;

d) design professionals;

e) real estate brokers.

No further interrogatories should be permitted except by order of the court or discovery referee on a showing of good cause.

C. Site Inspection and Testing. After the plaintiffs produce the list of defects that define the subject matter of the action, the defendant sand cross-defendants will want to make a physical inspection of the premises and, in some cases, such inspection will involve substantial intrusion upon, or even damage to, the property or the improvements thereon. There may be requests to excavate or expose sub-surface conditions, take core samples of concrete or soil, or remove portions of walls, ceilings, floors, or roofs to gain access to suspected sources of complaint.

The court or discovery referee should manage such requests so as to minimize their intrusive effect upon the residents of the property, prevent, duplication of testing, and insure that the procedures do not foment additional litigation by creating new disputes over alleged damage to property.

Proposals for such tests should specifically describe the test, the location or locations at which it is to be done, and what, if any, damage will be done by conducting the test. The proposals should also contain a clear commitment to repair any damage, whether foreseen or unforeseen. Testing should be scheduled with sufficient notice, so that any interested party has the opportunity to be present while the test is being conducted.

D. Depositions. Depositions should ordinarily be deferred until after the discovery mentioned above has been conducted, and the court should consider reversing the usual preference for taking percipient witness depositions before depositions of experts. The fundamental issues in the typical construction defect case are:

(1) What are the defect?

(2) Who is responsible for correcting them?

(3) What will it cost to do so?

The identification of the defects is better facilitated by the procedures mentioned above than by the taking of depositions, and the issues of responsibility and cost of correction will be the subjects of expert opinion evidence. In order to enable each party to gauge the relative strength or weakness of its case and to prepare for trial, it will be necessary for the parties to exchange expert witness information much earlier than the seventy days before trial specified in Code of Civil Procedure section 2034(b). The court should therefore consider requiring the exchange of such information soon after the defects are identified and scheduling the taking of expert depositions soon after the premises are inspected.

Percipient witness depositions, on the other hand, seldom bear upon the fundamental issues in the case, and the number of such depositions tends to expand in proportion of the time available to take them. Exceptions will occur, but they can be accommodated by permitting individual percipient witness depositions at an earlier date upon a motion and showing of good cause.

The order in which depositions are taken can be established by appointing a committee representative of the various interests in the case, to obtain the names of desired deponents from the parties, and propose a schedule of depositions. The right to object to such schedule and the right to a hearing on such objections before the court or discovery referee should be afforded to all parties.

The foregoing recommendations constitute limitations upon statutory discovery rights. Such limitations are proper if they are made in the form of a protective order issued in response to a motion therefore by one or more of the parties.