Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Discovery

Excessive Interrogatories Violate the Rules of Civility, Appellate Court Says

There are two important but subtle rules of civil discovery that come to the surface in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). The first is that you cannot submit the same interrogatory twice: if you don't like the answer (or lack of an answer) you got the first time, you had better move to compel — do not ask the question again. The second is, if you are going to ask a lot of questions (here, 723 of them), you had better be sure they are necessary. Here, they were found to violate the local rules of civility.

Bonus Appellate Tip: Carefully consider your requests for sanctions. If you win a discovery dispute and are awarded sanctions over $5,000, your order is now immediately appealable. Which, in this case, reversed the discovery victory.

Tip: This dispute would not have been immediately reviewable on appeal had the successful movant not sought monetary sanctions. Consider carefully whether to seek discovery sanctions.

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9th Cir. Reverses $1.8B Summary Judgment Against Discovery Abuser, Suggests District Court Impose Terminating Sanctions Instead

The Good News for Defendant: The Ninth Circuit reversed plaintiff's summary judgment on its breathtaking $1.8 billion Lanham Act claim.
The Bad News: In light of all defendant's discovery abuses, the Ninth Circuit wonders aloud whether the district court, when reconsidering the matter, might simply enter a default judgment against it on remand.

There is no duck blind in civil discovery: you don't get to take shots at the other side's evidence if they don't get to take shots at yours.

The concurrence concludes with this chilling suggestion: "I share the majority's opinion that the district court could consider entering discovery sanctions. See supra note 5. In my view, appropriate sanctions could even include a default judgment against Defendants-Appellants, if the district court deems it justified."

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Court Abused Its Discretion by Denying $4M Sanctions Request for Abusive Discovery

The Discovery Act provides for mandatory sanctions for discovery abuses unless the court finds the offending party acted with substantial justification or the sanction would be "unjust." Plaintiffs in Kwan Software Eng'g, Inc. […]

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New Discovery Cutoff Extensions, and Other Civil Procedure Updates

Governor Newsom recently signed SB 1146, which among other provides new Code Civ. Proc., § 599, which extends "any deadlines that have not already passed as of March 19, 2020" […]

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