Case Number: 13K08310    Hearing Date: August 05, 2014    Dept: 77

The Court expects counsel and their clients to comply with the discovery provisions of the Code without the need for Court intervention. The Court likewise expects counsel to carefully utilize the discovery tools provided by the Code. “[D]iscovery devices [are] be used as tools to facilitate litigation rather than as weapons to wage litigation. These tools should be well calibrated; the lancet is to be preferred over the sledge hammer.” Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal. App. 4th 216, 221.

Based on the Court’s review of the papers, the issues presented by way of this motion are ones that the parties should have been able to work out without court intervention.

As such, the motion is continued to September 23, 2014, at 8:30 a.m.

Barbara Mandell and Nancy Young are ordered to meet and confer face-to-face or by telephone on or before August 26, 2014, in good faith, to resolve this motion. The Court strongly encourages counsel to informally resolve the motion; counsel on both sides have good reasons to do so. If the motion is fully resolved it is to be promptly taken off-calendar by the moving party via email to the court clerk at smcdept77@lasuperiorcourt.org. If the meet and confer does not resolve the motion in its entirety, on or before noon on September 9, 2014, counsel are each to serve in this department detailed declarations which state: (1) which issues remain unresolved notwithstanding the Court-ordered meet and confer; (2) why each issue remains unresolved; and (3) why counsel cannot informally resolve these issues without need for court intervention.

Barbara Mandell and Nancy Young are each ordered to personally appear at the continued hearing on the motion (i.e., pursuant to CRC 3.670(e)(2) no telephonic appearance will be permitted) to meet and confer in the courthouse to fully resolve their discovery differences; they should bring with them whatever materials are needed to make this court-ordered meet and confer session productive and entirely successful. They are to be prepared to spend whatever time is necessary after the matter is first called to informally resolve the subject discovery motions. Counsel need not appear if the motion is taken off-calendar by email to the court clerk by the moving party at least 9 court days prior to the continued hearing date.

Finally, the court notes that if a deposition notice or subpoena served on the entity sufficiently describes the matters on which questions will be asked, the entity is under a duty to designate and produce the officers, directors, managing agents or employees “most qualified” to testify on its behalf having knowledge of such matters. CCP § 2025.230. The person or persons designated by the entity must testify “to the extent of any information known or reasonably available to the deponent (entity).” Moreover, when a request for documents is made, the witness or someone in authority “is expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held.” Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1396. If the subject matter of the questioning is clearly stated, the burden is on the entity, not the examiner, to produce the right witnesses. And, if the particular officer or employee designated lacks personal knowledge of all the information sought, he or she is supposed to find out from those who do. The purpose of this provision is to eliminate the problem of trying to find out who in the corporate hierarchy has the information the examiner is seeking. See Maldonado v. Superior Court, supra, 94 Cal. App. 4th 1390, 1395.

In this case, it appears that plaintiff may have failed to comply with the deposition notice by producing its most qualified person to testify, or that the person failed to make a reasonable inquiry regarding who might be holding responsive documents. Further, plaintiff’s poorly drafted opposition exceeds the page limitations of CRC 3.1113. In this case, the moving party has made a persuasive argument that this motion should be granted, at least in part.

Regardless, it seems that the dispute likely could be handled by a post-deposition document production, rather than by a new deposition. The parties are ordered to further meet and confer. The parties should be able to come up with a solution to many of the issues remaining without plaintiff having to produce another qualified person for an additional deposition.

Finally, counsel on both sides of this action need to reorient the manner in which they are approaching this action. Counsel are now ordered to comply with Local Rule 3.26 in its entirety, which rule is now made mandatory in this action by this order.

Moving party to give notice.