You are entitled to collect evidence in your Trust or Will lawsuit, but it is not always easy to do so. The California Code of Civil Procedure sets out an entire section designed to help you collect evidence, referred to as the Discovery Act. And while the methods to conduct discovery seem fairly straightforward, that is not always the way it works in practice.
In theory, you have the right to ask questions of the opposing party to a lawsuit using both form and special interrogatories. You can ask to see documents using inspection demands, ask questions in person using depositions (or take a deposition using written questions, which is rarely used), and even request the opposing party admit facts using requests for admission. While you may use one (or all) of these methods, the response you receive back is not always what is required under the code.
That brings us to motions to compel. If the opposing party is not answering discovery appropriately, you have the right to file a motion with the court where you will ask the judge to order the opposing party to comply with your discovery request. But filing a motion to compel requires you to jump through a few hoops.
First, you have to give the opposing party reasonable time to respond. Each of these discovery methods (except depositions) requires a thirty-day response time (plus an extra five days if you mail the discovery to your opponent, or an extra two days if sent by overnight delivery). But it does not end there. Most of the time the opposing party will ask for an extension of time, which must be reasonably granted otherwise the court will not look kindly on you when you bring your motion to compel.
Notice I said “reasonably” granted, so the time extension should match the length and complexity of the discovery. If you send out a set of five questions, then an extra thirty days to respond is not reasonable. But if you send out a set of seventy-five questions, then a longer extension may be appropriate. The goal here is to act reasonably so the court knows you tried to play fair.
Second, you must meet and confer, which means you have to explain your position to the opposing side and ask them to respond. Typically this happens in writing, but it can also be done in person or over the phone. And typically each side accuses the other of not engaging in a “meaningful” meet and confer process. So what does it mean to be meaningful?
To be meaningful, you have to lay out the legal and factual problems you have with the response. Many times a party may not answer as required under the Discovery Act or they just state an objection with no answer whatsoever. You have to go through each of those responses and explain why it is not in compliance with the Discovery Act. The other side then needs to either agree to supplement their responses to give better answers or state why they think the initial response is appropriate. If the parties agree, then problem solved. If not, then it’s on to the motion to compel.
Third, you have to prepare and file a motion to compel. You only have forty-five days after you are served with responses to file a motion to compel (plus five days if the responses were sent to you by mail, or two days if the responses were sent by overnight delivery). And that time can go fast if you have a lot to meet and confer about beforehand.
When you file a motion to compel you have to draft a notice of motion, the motion itself contains the legal arguments for your positions, plus a separate statement. The separate statement lists the initial discovery request that was served, the answer that was received, and the deficiency in that answer. You have to do this for every single discovery request to which you are trying to compel a further answer. If you have a set of seventy-five interrogatories, and you have a problem with each one of them, then grab an espresso and be prepared to burn the mid-night oil because it will take a while to prepare a separate statement for each one of those interrogatories.
Once you have all of this completed, you file your motion, give notice to the opposing side, and wait for your hearing date. Hopefully you get everything you are asking for. Sometimes you do and sometimes you don’t.
So why go through all of this in the first place? It’s the only way to ensure you have the evidence you need come time of trial. The Discovery Act was supposed to make trials more transparent for everyone. That may be true, but it takes a lot of work to get transparency.
