DISCOVERY, THE NEED TO RESPOND
By Richard J Boggan JD
Although, what is discoverable has its long radius of inclusion, it does not mean that all things that the defense requests are discoverable, and
must be objected to. The point being is that when a Lien Claimant is served with a notice to produce from a defense attorney it must be
responded to before the defense gets a motion to compel discovery from the Judge. Supply what you think relates to the claim and what is
reasonable and object to those you think is burdensome, unrelated, privileged, etc.,. But you have to respond absolutely, failure to respond
will certainly have negative consequences. Ameri-Medical Corp. v. Workers' Comp. Appeals Bd., 42 Cal. App. 4th 1260, 50 Cal. Rptr. 2d
366, 1996 Cal. App. LEXIS 168, 61 Cal. Comp. Cas. (MB) 149, 96 Cal. Daily Op. Service 1292, 96 D.A.R. 2181 (Cal. App. 2d Dist. 1996)
“The court further held that respondents, when asserting a violation of the statute as an objection to payment of a bill, had a legitimate interest
in identifying impermissible charges in the billings, but did not have a right to unfettered access to petitioner's business records. Respondents
could only seek discovery of relevant and unprivileged information.”
LIBERTY MUTUAL INSURANCE COMPANY et al., Petitioners, v. THE SUPERIOR COURT OF SAN MATEO COUNTY,
Respondent; GUNDA FRYSINGER, Real Party in Interest. No. A056957 COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE
DISTRICT, DIVISION FIVE.10 Cal. App. 4th 1282; 13 Cal. Rptr. 2d 363; 1992 Cal. App. November 6, 1992, Decided;
“Consistent with these federal decisions, we hold that when a plaintiff seeks to depose a corporate president or other official at the highest
level of corporate management, and that official moves for a protective order to prohibit the deposition, the trial court should first determine
whether the plaintiff has shown good cause that the official has unique or superior personal knowledge of discoverable information. If not, as
will presumably often be the case in the instance of a large national or international corporation, the trial court should issue the protective order
and first require the plaintiff to obtain the necessary discovery through less intrusive methods. These would include interrogatories directed to
the high-level official to explore the state of his or her knowledge or involvement in plaintiff's case; the deposition of lower level employees
with appropriate knowledge and involvement in the subject matter of the litigation; and the organizational deposition of the corporation itself,
which will require the corporation to produce for deposition the most qualified officer or employee to testify on its behalf as to the specified
matters to be raised at the deposition. (§ 2025, subd. (d)(6).) Should these avenues be exhausted, and the plaintiff make a colorable showing of
good cause that the high-level official possesses necessary information to the case, the trial court may then lift the protective order and allow
the deposition to proceed.”
Further in LIBERTY MUTUAL INSURANCE COMPANY et al., Petitioners, v. THE SUPERIOR COURT OF SAN MATEO COUNTY
(supra):
“We do not believe, as real party suggests, that this holding will frustrate a plaintiff's ability to penetrate high levels of corporate management
in a search for truth. Specifically, we do not agree with real party that a high-level official's protestation of ignorance of a lawsuit is self-serving
and automatically suspect. Lower level officials, with some probable connection to a plaintiff's case, are not permitted to avoid deposition by
filing conclusory affidavits of ignorance. (See discussion in Amherst Leasing Corporation v. Emhardt Corporation (D.Conn. 1974) 65 F.R.D.
121, 122.) In the case of an official at the head of corporate operations, however, expressions of ignorance of a specific case or claim are not
implausible. At any rate the procedure outlined above will prevent undue harassment and oppression of high-level officials while still providing
a plaintiff with several less intrusive mechanisms to obtain the necessary discovery, and allowing for the possibility of conducting the high-
level deposition if warranted.”
LIBERTY MUTUAL INSURANCE COMPANY et al., Petitioners, v. THE SUPERIOR COURT OF SAN MATEO COUNTY (supra):
“Although prerogative writs generally do not issue to review discovery rulings, a writ may issue to review questions of first impression to
provide guidance to the bench and bar. ( Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, [23 Cal.Rptr. 375
[373 P.2d 439].) Even when subject to prerogative writ review, a trial court's discovery ruling is not to be disturbed unless the court has abused
its discretion. ( Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 171 [84 Cal.Rptr. 718 [465 P.2d 854].) CA(2a)(2a) We conclude
it amounts to an abuse of discretion to withhold a protective order when a plaintiff seeks to depose a corporate president, or corporate officer
at the apex of the corporate hierarchy, absent a reasonable indication of the officer's personal knowledge of the case and absent exhaustion of
less intrusive discovery methods.”
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