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RESOLUTION 08-01-2016 DIGEST Civil Procedure: Personal Service of Discovery Amends Code of Civil Procedure section 2016.050 to allow for personal service of discovery or discovery motions. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Code of Civil Procedure section 2016.050 to read as follows: §2016.050 Sections 1011 and 1013 applies apply to any method of discovery or service of a motion 1 provided for in this title. 2 (Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem : This statute authorizes methods of service for discovery and discovery-related motions. However, Section 1013 only allows service by mail and express mail, and facsimile and electronic service where agreed to by the parties. The most notable exception is personal service. In practice, attorneys do personally serve time-sensitive discovery and discovery responses, so this just codifies the practice of personal service. The Solution : This authorizes personal service of discovery and discovery-related motions. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND PERMANENT CONTACT: Melissa L. Bustarde, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

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RESOLUTION 08-01-2016

DIGEST Civil Procedure: Personal Service of Discovery Amends Code of Civil Procedure section 2016.050 to allow for personal service of discovery or discovery motions. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Code of Civil Procedure section 2016.050 to read as follows: §2016.050 Sections 1011 and 1013 applies apply to any method of discovery or service of a motion 1 provided for in this title. 2

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: This statute authorizes methods of service for discovery and discovery-related motions. However, Section 1013 only allows service by mail and express mail, and facsimile and electronic service where agreed to by the parties. The most notable exception is personal service. In practice, attorneys do personally serve time-sensitive discovery and discovery responses, so this just codifies the practice of personal service. The Solution: This authorizes personal service of discovery and discovery-related motions. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND PERMANENT CONTACT: Melissa L. Bustarde, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

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RESOLUTION 08-02-2016

DIGEST

Amends the California Code of Civil Procedure to require a party employing or retaining an expert for a deposition to produce any document, electronically stored information, or tangible thing for inspection and copying, pursuant with Section 2025.280(a).

Civil Procedure: Production of Documents by Retained Experts through a Notice of Deposition

TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Code of Civil Procedure section 2034.460 to read as follows: §2034.460 (a) The service of a proper deposition notice accompanied by the tender of the expert 1 witness fee described in Section 2034.430 is effective to require the party employing or retaining 2 the expert to produce the expert for the deposition as well as to produce any document, 3 electronically stored information, or tangible thing for inspection and copying, pursuant with 4 Section 2025.280(a) (b) If the party noticing the deposition fails to tender the expert's fee under Section 6 2034.430, the expert shall not be deposed at that time unless the parties stipulate otherwise. 7

. 5

(Proposed new language underlined; language to be deleted stricken)

PROPONENT: Orange County Bar Association STATEMENT OF REASONS The Problem

: Pursuant with CCP § 2034.210(c), demands for expert witness information may include a demand for discoverable reports and writings made by the expert in the course of preparing that expert's opinion. However, CCP §2034.210(c) does not expressly obligate parties to produce any other documents which may be in the expert’s file, or any evidence examined or considered, but not “made by” the expert.

CCP §2034.460 permits parties to utilize a notice of deposition to compel another party to produce their retained expert for deposition. However, CCP §2034.460 does not expressly address whether this includes the ability to require production of documents/evidence at such a deposition. There is a strong implication that the right to require production was intended, in that CCP §2034.410 states that the “procedures for taking oral and written depositions” “apply to a deposition of a listed trial expert witness.” By citing to CCP §2025.010 et seq., it appears that the legislature intended to permit parties to use notices of deposition to not only require retained expert to appear, but also to produce documents/evidence. While some counsel are cooperative and willing to have their experts voluntarily produce their entire files, gamesmanship and sandbagging remain a common practice. This often leads to a

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battle as to whether the party noticing the deposition was obligated to personally serve a subpoena on the retained expert to require the production of relevant documents/evidence. The purpose of expert witness discovery is to give fair notice of what an expert will say at trial. Bonds v. Roy (1999) 20 Cal. 4th 140, 146. The need for pretrial discovery is greater with respect to expert witnesses, because the other parties must prepare to cope with witnesses possessed of specialized knowledge in some scientific or technical field. Bonds, 20 Cal. 4th at 147. The California courts lump together experts “who are parties, employees of parties, or are ‘retained by a party for the purpose of forming and expressing an opinion.’” Kalaba v. Gray (2002) 95 Cal.App.4th 1416, 1421. It would therefore make no sense to treat retained experts as a party controlled witness for the purpose of compelling them to appear for deposition, while simultaneously treating them like independent witness when it comes to compelling them to produce documents/evidence at that same deposition. The Solution

: This resolution is meant to clarify the obligation of parties to not merely produce their retained experts for deposition, but also relevant documents/evidence in the expert’s possession, through a notice of deposition, without a separate subpoena. The added language precisely mirrors CCP §2025.280(a), to create consistency with the obligations which apply to other party controlled witnesses. The proposed additional language also complies with CCP §2034.410, which declares that the “procedures for taking oral and written depositions” set forth in CCP §2025.010 et seq. (which include the ability to require production of documents/evidence at a deposition), are meant to “apply to a deposition of a listed trial expert witness….”

IMPACT STATEMENT This resolution does not affect any other law, statue or rule, other than those identified above. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Jason E. Turner, Esq., 315 West Third Street, Santa Ana, CA 92701, Phone: (714) 543-0593, Fax: (714) 543-0598, Email: [email protected] RESPONSIBLE FLOOR DELEGATE: Jason E. Turner

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RESOLUTION 08-03-2016 DIGEST

Amends Code of Civil Procedure sections 2030.030, 2030.040, 2030.050 and 2030.090 to limit parties to 25 special interrogatories and shifting the burden to the propounding party to establish a need for additional special interrogatories in excess of this presumptive maximum.

Civil Discovery: A Further Limitation on Special Interrogatories

TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Code of Civil Procedure sections 2030.030, 2030.040, 2030.050 and 2030.090 to read as follows: §2030.030 (a) A party may propound to another party either or both of the following: 1 (1) Thirty Twenty

(2) Any additional number of official form interrogatories, as described in Chapter 17 4 (commencing with Section 2033.710), that are relevant to the subject matter of the pending 5 action. 6

-five specially prepared interrogatories that are relevant to the subject 2 matter of the pending action. 3

(b) Unless otherwise stipulated in writing, ordered by the court, or unless Except as 7 provided in by Section 2030.070, no party shall, as a matter of right, propound to any other party 8 more than 35 25

(c) Unless a declaration as described in Section 2030.050 has been made,

specially prepared interrogatories. If the initial set of interrogatories does not 9 exhaust this limit, the balance may be propounded in subsequent sets. 10

Unless 11 otherwise stipulated in writing, ordered by the court, or provided by Section 2030.070,

16

a party 12 need only respond to the first 35 25 specially prepared interrogatories served, if that party states 13 an objection to the balance, under Section 2030.240, on the ground that the limit has been 14 exceeded. 15

§2030.040 17 (a) Subject to the right of the responding party to seek a protective order under Section 18 2030.090, any party may seek an order for leave to propound who attaches a supporting 19 declaration as described in Section 2030.050 may propound a greater number of specially 20 prepared interrogatories to another party upon a showing that

(1) The complexity or the quantity of the existing and potential issues in the particular 23 case. 24

if this greater number is warranted 21 because of any of the following: 22

(2) The financial burden on a party entailed in conducting the discovery by oral 25 deposition. 26 (3) The expedience of using this method of discovery to provide to the responding party 27 the opportunity to conduct an inquiry, investigation, or search of files or records to supply the 28 information sought. 29

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(b) If the responding party seeks a protective order on the ground that the number of 30 specially prepared interrogatories is unwarranted, the propounding party shall have the burden of 31 justifying the number of these interrogatories. 32 33 §2030.050 34 Any party moving the court for leave to propound who is propounding or has propounded 35 more than 35 25 specially prepared interrogatories to any other party shall attach to each set of 36 those interrogatories submit 38

a declaration containing substantially the following: 37

DECLARATION FOR ADDITIONAL DISCOVERY 39 40

I, __________, declare: 41 1. I am (a party to this action or proceeding appearing in propria persona) (presently the 42 attorney for __________, a party to this action or proceeding). 43 2. I am propounding to __________ the attached set of interrogatories. 44 3. This set of interrogatories will cause the total number of specially prepared 45 interrogatories propounded to the party to whom they are directed to exceed the number of 46 specially prepared interrogatories permitted by Section 2030.030 of the Code of Civil Procedure. 47 4. I have previously propounded a total of __________ interrogatories to this party, of 48 which __________ interrogatories were not official form interrogatories. 49 5. This set of interrogatories contains a total of __________ specially prepared 50 interrogatories. 51 6. I am familiar with the issues and the previous discovery conducted by all of the parties 52 in the case. 53 7. I have personally examined each of the questions in this set of interrogatories. 54 8. This number of questions is warranted under Section 2030.040 of the Code of Civil 55 Procedure because __________. (Here state each factor described in Section 2030.040 that is 56 relied on, as well as the reasons why any factor relied on is applicable to the instant lawsuit.) 57 9. None of the questions in this set of interrogatories is being propounded for any 58 improper purpose, such as to harass the party, or the attorney for the party, to whom it is 59 directed, or to cause unnecessary delay or needless increase in the cost of litigation. 60 61 I declare under penalty of perjury under the laws of California that the foregoing is true and 62 correct, and that this declaration was executed on __________. 63 64 (Signature) 65 66 Attorney for 67 68 §2030.090 69 (a) When interrogatories have been propounded, the responding party, and any other 70 party or affected natural person or organization may promptly move for a protective order. This 71 motion shall be accompanied by a meet and confer declaration under Section 2016.040. 72 (b) The court, for good cause shown, may make any order that justice requires to protect 73 any party or other natural person or organization from unwarranted annoyance, embarrassment, 74

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or oppression, or undue burden and expense. This protective order may include, but is not limited 75 to, one or more of the following directions: 76 (1) That the set of interrogatories, or particular interrogatories in the set, need not be 77 answered. 78 (2) That, contrary to the representations made in a declaration submitted under Section 79 2030.050, the number of specially prepared interrogatories is unwarranted. 80 (3) That the time specified in Section 2030.260 to respond to the set of interrogatories, or 81 to particular interrogatories in the set, be extended. 82 (4) That the response be made only on specified terms and conditions. 83 (5) That the method of discovery be an oral deposition instead of interrogatories to a 84 party. 85 (6) That a trade secret or other confidential research, development, or commercial 86 information not be disclosed or be disclosed only in a certain way. 87 (7) That some or all of the answers to interrogatories be sealed and thereafter opened only 88 on order of the court. 89 (c) If the motion for a protective order is denied in whole or in part, the court may order 90 that the party provide or permit the discovery against which protection was sought on terms and 91 conditions that are just. 92 (d) The court shall impose a monetary sanction under Chapter 7 (commencing with 93 Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a 94 motion for a protective order under this section, unless it finds that the one subject to the sanction 95 acted with substantial justification or that other circumstances make the imposition of the 96 sanction unjust. 97

(Proposed new language underlined; language to be deleted stricken) PROPONENT: San Mateo County Bar Association STATEMENT OF REASONS The Problem

: Written discovery is perhaps among the most expensive and least profitable ways to conduct discovery. Voluminous special interrogatories, in particular, are often used as a tactical ploy to impose costs and casualties on the opposition. Worse, because the so-called Rule of 35 can be obviated with a simple declaration by the propounding party’s counsel, special interrogatories are almost never limited to 35. For this reason there is no effective limit to the number of special interrogatories. Perhaps this is why the conventional wisdom holds, “Discovery procedures in civil litigation are time-consuming and expensive armaments in a war of attrition, as parties try to induce favorable settlement by grinding down an adversary or expending disproportionate resources in search of the elusive ‘smoking gun.’” Daniel B. Winslow & Alexandra Bedell-Healy, Economical Litigation Agreements, 11 Pepp. Disp. Resol. L.J. 125 (2010); see Andrew J. Wistrich & Jeffrey J. Rachlinski, How Lawyers' Intuitions Prolong Litigation, 86 S. Cal. L. Rev. 571, 626 (2013) (arguing that “the civil justice system . . . withers . . . as unaffordable discovery . . . render it useless and prohibitively expensive for almost every purpose”).

Although written discovery cannot and should not be eliminated. It should be curtailed.

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The Solution

: The California Courts should follow the federal judiciary by capping the presumptive limit of special interrogatories to 25. Further, parties should not be able to propound additional special interrogatories simply by declaring they believe they need to, shifting the burden to the responding party who would otherwise have to expend their own resources moving for a protective order. Instead, like in the federal courts, the propounding party (not the responding party), should bear the burden of moving the court when additional special interrogatories are necessary.

This compromise will far more effectively limit the number of special interrogatories to a reasonable limit while simultaneously preserving a party’s right to propound additional special interrogatories when determined by the court. This is the system employed by the federal judiciary for decades. And no evidence suggests limiting discovery in this way has resulted in an inferior quality of justice in the federal courts as compared to the California courts. Notably, this does not impact a party’s ability to take depositions or seek production of documents—which continues to be unlimited. And although the initial disclosure provision of Rule 26 in the federal system gives parties some additional information for free, virtually all of the same information can be acquired by parties in the California state system by propounding the Judicial Council’s form interrogatories, which do not count against the special interrogatories’ 25. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: B. Douglas Robbins, WOOD ROBBINS LLP, 1 Post Street, Suite 800, San Francisco, CA 94104, tel 415.247.7900 x204; fax 415.247.7901; [email protected] RESPONSIBLE FLOOR DELEGATE: B. Douglas Robbins

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RESOLUTION 08-04-2016 DIGEST

Amends Code of Civil Procedure sections 2033.030, 2033.040, 2033.050 and 2033.080 to limit parties to 25 requests for admission and shifting the burden to the propounding party to establish a need for additional requests for admission in excess of this presumptive maximum.

Civil Discovery: A Further Limitation on Requests for Admissions

RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Code of Civil Procedure sections 2033.030, 2033.040, 2033.050 and 2033.080 to read as follows: §2033.030 (a) No party shall request, as a matter of right, that any other party admit more than 35 25

(b) Unless a declaration as described in Section 2033.050 has been made,

1 matters that do not relate to the genuineness of documents. If the initial set of admission requests 2 does not exhaust this limit, the balance may be requested in subsequent sets. 3

Unless 4 otherwise stipulated in writing, or ordered by the court, a party need only respond to the first 5 35 25

(c) The number of requests for admission of the genuineness of documents is not limited 9 except as justice requires to protect the responding party from unwarranted annoyance, 10 embarrassment, oppression, or undue burden and expense. 11

admission requests served that do not relate to the genuineness of documents, if that party 6 states an objection to the balance under Section 2033.230 on the ground that the limit has been 7 exceeded. 8

12 §2033.040 13 (a) Subject to the right of the responding party to seek a protective order under Section 14 2033.080, any party may seek an order for leave to propound who attaches a supporting 15 declaration as described in Section 2033.050 may request a greater number of admissions 16 by upon

(b) If the responding party seeks a protective order on the ground that the number of 19 requests for admission is unwarranted, the propounding party shall have the burden of justifying 20 the number of requests for admission. 21

another party if the greater number is warranted by the complexity or the quantity of the 17 existing and potential issues in the particular case. 18

22 §2033.050 23 Any party moving the court for leave to request who is requesting or who has already 24 requested more than 35 25 admissions not relating to the genuineness of documents by any other 25 party shall attach to each set of requests for admissions submit

28

a declaration containing 26 substantially the following words: 27

DECLARATION FOR ADDITIONAL DISCOVERY 29 30

I, __________, declare: 31 1. I am (a party to this action or proceeding appearing in propria persona) (presently the 32 attorney for __________, a party to this action or proceeding). 33

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2. I am propounding to __________ the attached set of requests for admission. 34 3. This set of requests for admission will cause the total number of requests propounded 35 to the party to whom they are directed to exceed the number of requests permitted by Section 36 2033.030 of the Code of Civil Procedure. 37 4. I have previously propounded a total of __________ requests for admission to this 38 party. 39 5. This set of requests for admission contains a total of __________ requests. 40 6. I am familiar with the issues and the previous discovery conducted by all of the parties 41 in this case. 42 7. I have personally examined each of the requests in this set of requests for admission. 43 8. This number of requests for admission is warranted under Section 2033.040 of the 44 Code of Civil Procedure because __________. (Here state the reasons why the complexity or the 45 quantity of issues in the instant lawsuit warrant this number of requests for admission.) 46 9. None of the requests in this set of requests is being propounded for any improper 47 purpose, such as to harass the party, or the attorney for the party, to whom it is directed, or to 48 cause unnecessary delay or needless increase in the cost of litigation. 49 50 I declare under penalty of perjury under the laws of California that the foregoing is true and 51 correct, and that this declaration was executed on __________. 52 53 54 (Signature) 55 56 Attorney for 57 58 §2033.080 59 (a) When requests for admission have been made, the responding party may promptly 60 move for a protective order. This motion shall be accompanied by a meet and confer declaration 61 under Section 2016.040. 62 (b) The court, for good cause shown, may make any order that justice requires to protect 63 any party from unwarranted annoyance, embarrassment, oppression, or undue burden and 64 expense. This protective order may include, but is not limited to, one or more of the following 65 directions: 66 (1) That the set of admission requests, or particular requests in the set, need not be 67 answered at all. 68 (2) That, contrary to the representations made in a declaration submitted under Section 69 2033.050, the number of admission requests is unwarranted. 70 (3) That the time specified in Section 2033.250 to respond to the set of admission 71 requests, or to particular requests in the set, be extended. 72 (4) That a trade secret or other confidential research, development, or commercial 73 information not be admitted or be admitted only in a certain way. 74 (5) That some or all of the answers to requests for admission be sealed and thereafter 75 opened only on order of the court. 76 (c) If the motion for a protective order is denied in whole or in part, the court may order 77 that the responding party provide or permit the discovery against which protection was sought on 78 terms and conditions that are just. 79

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(d) The court shall impose a monetary sanction under Chapter 7 (commencing with 80 Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a 81 motion for a protective order under this section, unless it finds that the one subject to the sanction 82 acted with substantial justification or that other circumstances make the imposition of the 83 sanction unjust. 84

(Proposed new language underlined; language to be deleted stricken) PROPONENT: San Mateo County Bar Association STATEMENT OF REASONS The Problem

: “The price of civil litigation, measured by time or treasure, is often too high and too slow and lacks any proportion to the value of the dispute.” Daniel B. Winslow & Alexandra Bedell-Healy, Economical Litigation Agreements, 11 Pepp. Disp. Resol. L.J. 125 (2010); see Maurice E. Stucke, Does the Rule of Reason Violate the Rule of Law?, 42 U.C. Davis L. Rev. 1375, 1490 n.380 (2009) (“Among the themes from a recent survey of over 1,000 trial lawyers were that electronic discovery was a “morass,” the civil discovery system is broken, and 85 percent thought that civil litigation generally and discovery particular are too expensive.”).

Voluminous requests for admission—inevitably paired with Form Interrogatory 17.1 seeking all facts, witnesses, and documents in support of every denial—is often used as a tactical ploy to impose costs and casualties on the opposition. Worse, because the so-called Rule of 35 can be obviated with a simple declaration by the propounding party’s counsel, requests for admission are almost never limited to 35. For this reason there is no effective limit to the number of requests for admission. The Solution

: The California Courts should follow the federal judiciary by capping the presumptive limit of requests for admission to 25. Further, parties should not be able to propound additional requests for admission simply by declaring they believe they need to, shifting the burden to the responding party who would otherwise have to expend their own resources moving for a protective order. Instead, like in the federal courts, the propounding party (not the responding party), should bear the burden of moving the court when additional requests for admission are necessary.

This compromise will far more effectively limit the number of requests for admission to a reasonable limit while simultaneously preserving a party’s right to propound additional requests for admission when determined by the court. This is the system employed by the federal judiciary for decades. And no evidence suggests limiting discovery in this way has resulted in an inferior quality of justice in the federal courts as compared to the California courts. Notably, this does not impact a party’s ability to request admission as to the genuineness of documents or to request production of documents—which continues to be unlimited. And although the initial disclosure provision of Rule 26 in the federal system gives parties some additional information for free, virtually all of the same information can be acquired by parties in

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the California state system by propounding the Judicial Council’s form interrogatories, which do not count against the requests for admission’s 25. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: B. Douglas Robbins, WOOD ROBBINS LLP, 1 Post Street, Suite 800, San Francisco, CA 94104, tel 415.247.7900 x204; fax 415.247.7901; [email protected] RESPONSIBLE FLOOR DELEGATE: B. Douglas Robbins

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RESOLUTION 08-05-2016

DIGEST Civil Discovery: Separate Statements in Discovery Amends California Rules of Court, rule 3.1345 to mandate more readable, more useful, and more responsive separate statements from movants and opponents in discovery motions. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend California Rules of Court, rule 3.1345 to read as follows: Rule 3.1345 (a) Separate statement required 1 Any motion or opposition involving the content of a discovery request or the responses to 2 such a request must be accompanied by a separate statement. The motions and oppositions that 3 require a separate statement include a motion: 4 (1) To compel further responses to requests for admission; 5 (2) To compel further responses to interrogatories; 6 (3) To compel further responses to a demand for inspection of documents or tangible 7 things; 8 (4) To compel answers at a deposition; 9 (5) To compel or to quash the production of documents or tangible things at a deposition; 10 (6) For medical examination over objection; and 11 (7) For issue or evidentiary sanctions. 12 (b) Separate statement not required 13 A separate statement is not required when no response has been provided to the request 14 for discovery. 15 (c) Contents of separate statement 16 A separate statement is a separate document filed and served with the discovery motion 17 or opposition that provides all the information necessary to understand each discovery request 18 and all the responses to it that are at issue. The separate statement must be full and complete so 19 that no person is required to review any other document in order to determine the full request and 20 the full response. Material must not be incorporated into the separate statement by reference. The 21 separate statement must include--for each discovery request (e.g., each interrogatory, request for 22 admission, deposition question, or inspection demand) to which a further response, answer, or 23 production is requested--the following: 24 (1) The text of the request, interrogatory, question, or inspection demand; 25 (2) The text of each response, answer, or objection, and any further responses or answers; 26 (3) A short and concise statement, by movant, of the factual and legal reasons for 27 compelling further responses, answers, or production as to each matter in dispute; 28 (4) A short and concise statement by the opponent to the motion, of the factual and legal 29 reasons for not compelling further responses, answers, or production as to each matter in dispute; 30 (4) (5) If necessary, the text of all definitions, instructions, and other matters required to 31 understand each discovery request and the responses to it; 32

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(5) (6) If the response to a particular discovery request is dependent on the response 33 given to another discovery request, or if the reasons a further response to a particular discovery 34 request is deemed necessary are based on the response to some other discovery request, the other 35 request and the response to it must be set forth; and 36 (6) (7) If the pleadings, other documents in the file, or other items of discovery are 37 relevant to the motion, the party relying on them must summarize each relevant document. 38 (d) Identification of interrogatories, demands, or requests 39 A motion concerning interrogatories, inspection demands, or admission requests must 40 identify the interrogatories, demands, or requests by set and number. 41 (e) Meaning of Short and Concise Statement 42 The short and concise statement made by movant or opponent (discussed subsections c(3) 43 and c(4) above) shall recapitulate the factual and legal reasons made by the respective parties in 44 their briefing—and no additional reasons—in an abbreviated fashion sufficient to cogently refer 45 to those reasons in the separate statement. The full reason or argument shall not be repeated in 46 the separate statement. 47 (f) Form of the Separate Statement 48 The separate statement shall be in the following format: 49 (1) The separate statement shall be in the form of a five-column chart with the first row 50 entitled “Discovery Demand,” the second row entitled, “Discovery Response,” the third row 51 entitled “Reason(s) for Further Discovery Response,” the fourth row entitled, “Reason(s) Why 52 No Further Response Required,” and the fifth row entitled “Ruling.” 53 (2) The separate statement shall be single spaced, in ten point font, and printed (in paper 54 or as a pdf) in landscape format. If printed on paper, the separate statement shall be printed 55 double-sided when possible. 56 (g) Request for electronic version of separate statement 57 On request, a party must, within three days provide to any other party or the court an 58 electronic version of its separate statement. The electronic version may be provided in any form 59 on which the parties agree. If the parties are unable to agree on the form, the responding party 60 must provide to the requesting party the electronic version of the separate statement that it used 61 to prepare the document filed with the court. Under this subdivision, a party is not required to 62 create an electronic version or any new version of any document for the purpose of transmission 63 to the requesting party. 64

(Proposed new language to be underlined; language to be deleted stricken)

PROPONENT: San Mateo County Bar Association STATEMENT OF REASONS The Problem: Separate statements as currently mandated by the Rules of Court are virtually useless. On the one hand they require too much. On the other hand they require too little. Too Much. Currently separate statements are merely a recapitulation of the arguments already made in memorandum of points and authorities. In fact, out of concern for waiving any argument or any part of any argument, parties often just cut and paste the text from the memorandum into the separate statement. But because the argument must be repeated for each individuated request,

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and because on any given motion dozens if not hundreds of requests are at issue, it is not uncommon to have separate statements that are two, three, four inches thick. The separate statement is now far too large to be of any use to the court. Perhaps this is why some federal courts in California do not allow the parties to file separate statements without leave of court. See N.D. Cal. L.R. 56-2. Too Little. On the other hand, because the California Rules of Court do not currently mandate that opponents provide separate statements, few do. As a result, the separate statement is just a one-sided document that repeats the movant’s arguments from the memorandum of points and authorities. This defeats the whole point of the separate statement which is to provide a neat and tidy location to compare argument to argument. The Solution: An example of how the separate statement document is supposed to work can be found in the context of motions for summary judgment. See Cal. R. Ct. 3.1350(h). There the rules mandate the parties provide a table that contains (1) the facts, (2) the evidence in support, and (3) the evidence controverting (if any). This gives the court a convenient way to compare and contrast the evidence from each side simply by locating the fact in controversy and examining the table row on that page. Building on that model, the rule for a discovery separate statement should require movant and opponent to provide reasons for and reasons against compelling further responses for any particular discovery response. The resolution here instructs the movant to draft a table with short and concise arguments. The responding party will request an electronic copy of the movant’s separate statement—again modeled after the motion for summary judgment language rule, see Cal. R. Ct. 3.1350(i)—and provide opposition argument. Once complete, the totality of the controversy for any given request, will be encapsulated within table cells, often on a single page. The result should be a document the court can refer to when thinking about the arguments for and against simply by glancing at the contents of any given row. As compared to the status quo, this should produce a document of some utility to the court. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: B. Douglas Robbins, WOOD ROBBINS LLP, 1 Post Street, Suite 800, San Francisco, CA 94104, tel 415.247.7900 x204; fax 415.247.7901; [email protected] RESPONSIBLE FLOOR DELEGATE: B. Douglas Robbins

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RESOLUTION 08-06-2016

DIGEST Civil Procedure: Informal Discovery Conferences Adds Code of Civil Procedure section 2016.080 to permit Superior Court Local Rules to require parties to participate in informal discovery conferences with the trial courts prior to filing motions to compel further responses to written discovery. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to add Code of Civil Procedure section 2016.080 to read as follows: §2016.080 1 Local rules may require the parties to participate in an informal discovery conference 2 with the court before filing a motion to compel further responses pursuant to Chapters 9, 13, 14 3 or 16, and to include the fact of their participation in said informal discovery conference in the 4 meet and confer declaration provided for in Code of Civil Procedure section 2016.040. 5

(Proposed new language underlined; language to be deleted stricken)

PROPONENT: Women Lawyers Association of Los Angeles STATEMENT OF REASONS The Problem: Some trial courts have either required or offered to have the parties come before the Court/Judge for an Informal Discovery Conference before filing a motion to compel further responses to written discovery. The Informal Discovery Conferences are a great way for the judge to get a quick look at the controversy and try to resolve it without the hundreds or thousands of pages of a separate statement, exhibits, etc. They work in the vast majority of the cases and resolve the matter without anyone filing a motion to compel thus saving the courts and the parties a lot of time, money etc. However, there is no statutory authority to allow a court to require an Informal Discovery Conference. The Solution: This resolution would not require that all jurisdictions have Informal Discovery Conferences, it would just give the Superior Courts authority to require them and authority to pass Local Rules relating to them and the procedures governing them. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: Shaun Dabby Jacobs, Los Angeles City Attorney’s Office, 200 N. Main Street, 7th Floor, Los Angeles, CA 90012; (213) 978-8288; [email protected] RESPONSIBLE FLOOR DELEGATE: Shaun Dabby Jacobs

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RESOLUTIONS 08-07-2016

DIGEST Civil Procedure: Cost recovery for electronic presentation of evidence Amends Code of Civil Procedure section1033.5 to allow electronic presentation of evidence as a recoverable cost. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Code of Civil Procedure section1033.5 to read as follows: §1033.5 (a) The following items are allowable as costs under Section 1032: 1 (1) Filing, motion, and jury fees. 2 (2) Juror food and lodging while they are kept together during trial and after the jury 3 retires for deliberation. 4 (3) (A) Taking, video recording, and transcribing necessary depositions, including an 5 original and one copy of those taken by the claimant and one copy of depositions taken by the 6 party against whom costs are allowed. 7 (B) Fees of a certified or registered interpreter for the deposition of a party or witness 8 who does not proficiently speak or understand the English language. 9 (C) Travel expenses to attend depositions. 10 (4) Service of process by a public officer, registered process server, or other means, as 11 follows: 12 (A) When service is by a public officer, the recoverable cost is the fee authorized by law 13 at the time of service. 14 (B) If service is by a process server registered pursuant to Chapter 16 (commencing with 15 Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the 16 amount actually incurred in effecting service, including, but not limited to, a stakeout or other 17 means employed in locating the person to be served, unless those charges are successfully 18 challenged by a party to the action. 19 (C) When service is by publication, the recoverable cost is the sum actually incurred in 20 effecting service. 21 (D) When service is by a means other than that set forth in subparagraph (A), (B), or (C), 22 the recoverable cost is the lesser of the sum actually incurred, or the amount allowed to a public 23 officer in this state for that service, except that the court may allow the sum actually incurred in 24 effecting service upon application pursuant to paragraph (4) of subdivision (c). 25 (5) Expenses of attachment including keeper's fees. 26 (6) Premiums on necessary surety bonds. 27 (7) Ordinary witness fees pursuant to Section 68093 of the Government Code. 28 (8) Fees of expert witnesses ordered by the court. 29 (9) Transcripts of court proceedings ordered by the court. 30 (10) Attorney's fees, when authorized by any of the following: 31 (A) Contract. 32 (B) Statute. 33

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(C) Law. 34 (11) Court reporter fees as established by statute. 35 (12) Court interpreter fees for a qualified court interpreter authorized by the court for an 36 indigent person represented by a qualified legal services project, as defined in Section 6213 of 37 the Business and Professions Code or a pro bono attorney as defined in Section 8030.4 of the 38 Business and Professions Code. 39 (13) Models and enlargements of exhibits and photocopies of exhibits, including 40 electronic presentation of the exhibits, which may include rental costs of the presentation 41 equipment, preparation of the exhibits for electronic formatting and presentation and a 42 reasonable fee for a technical consultant to operate the equipment during trial may be allowed if 43 they were reasonably helpful to aid the trier of fact. 44 (14) Any other item that is required to be awarded to the prevailing party pursuant to 45 statute as an incident to prevailing in the action at trial or on appeal. 46 (b) The following items are not allowable as costs, except when expressly authorized by 47 law: 48 (1) Fees of experts not ordered by the court. 49 (2) Investigation expenses in preparing the case for trial. 50 (3) Postage, telephone, and photocopying charges, except for exhibits. 51 (4) Costs in investigation of jurors or in preparation for voir dire. 52 (5) Transcripts of court proceedings not ordered by the court. 53 (c) Any award of costs shall be subject to the following: 54 (1) Costs are allowable if incurred, whether or not paid. 55 (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather 56 than merely convenient or beneficial to its preparation. 57 (3) Allowable costs shall be reasonable in amount. 58 (4) Items not mentioned in this section and items assessed upon application may be 59 allowed or denied in the court's discretion. 60 (5) When any statute of this state refers to the award of "costs and attorney's fees," 61 attorney's fees are an item and component of the costs to be awarded and are allowable as costs 62 pursuant to subparagraph (B) of paragraph (10) of subdivision (a). Any claim not based upon the 63 court's established schedule of attorney's fees for actions on a contract shall bear the burden of 64 proof. Attorney's fees allowable as costs pursuant to subparagraph (B) of paragraph (10) of 65 subdivision (a) may be fixed as follows: (A) upon a noticed motion, (B) at the time a statement 66 of decision is rendered, (C) upon application supported by affidavit made concurrently with a 67 claim for other costs, or (D) upon entry of default judgment. Attorney's fees allowable as costs 68 pursuant to subparagraph (A) or (C) of paragraph (10) of subdivision (a) shall be fixed either 69 upon a noticed motion or upon entry of a default judgment, unless otherwise provided by 70 stipulation of the parties. 71 Attorney’s fees awarded pursuant to Section 1717 of the Civil Code are allowable costs 72 under Section 1032 of this code as authorized by subparagraph (A) of paragraph (10) of 73 subdivision (a). 74

(Proposed new language underlined; language to be deleted stricken)

PROPONENT: Bar Association of Northern San Diego County

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STATEMENT OF REASONS The Problem: It is now commonplace to utilize the electronic presentation of evidence at jury trials, and even, so a certain extent, bench trials. Although courts have held that the cost of having a technician present to assist with the electronic presentation of evidence can be a recoverable cost, it is not specifically identified in Code of Civil Procedure §1033.5. Many judges are still reluctant to award these costs to a prevailing party, even though electronic presentation of evidence is vital in jury cases where the jury otherwise would not see key documentary evidence until they reach the jury deliberation room. The Solution: This codifies existing case law and clarifies that the cost to convert exhibits to electronic format, use electronic presentation equipment and for a technical consultant to run the electronic evidence is a recoverable cost if reasonably helpful to a trier of fact. The court still retains discretion to disallow these costs if they truly were not necessary or unhelpful (i.e., a simple bench trial where the judge has a copy of all of the exhibits). IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND PERMANENT CONTACT: Melissa L. Bustarde, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

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RESOLUTION 08-08-2016 DIGEST Civil Procedure: Deposition Officer for Production of Business Records Amends Code of Civil Procedure section 2020.420 to clarify that an attorney may be a Deposition Officer in a Deposition Subpoena. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Code of Civil Procedure section 2020.420 to read as follows: §2020.420 The officer for a deposition seeking discovery only of business records for copying under 1 this article shall be either (a) a professional photocopier registered under Chapter 20 2 (commencing with Section 22450) of Division 8 of the Business and Professions Code, or (b) a 3 person exempted from the registration requirements of that chapter under Section 22451 of the 4 Business and Professions Code, including the attorney for any party. This deposition officer shall 5 not be financially interested in the action, other than as an attorney representing a party, or shall 6 not be a relative or employee of any attorney of the parties. Any objection to the qualifications of 7 the deposition officer is waived unless made before the date of production or as soon thereafter 8 as the ground for that objection becomes known or could be discovered by reasonable diligence. 9

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County. STATEMENT OF REASONS The Problem: When an attorney serves a Deposition Subpoena for Production of Business Records and wishes to have the documents produced directly to him, it is recommended by the leading practice guide that the attorney leave the “Deposition Officer” section of the Judicial Council form blank, and check box (c) which indicates that the documents are to be produced “by making the original business records …available for inspection at your business address to the attorney’s representative and permitting copying …” (See, Weil & Brown, California Civil Procedure Before Trial, § 8:547.2.) This precludes the option of having the records delivered under option (a) [delivering copies to the attorney] or (b) [delivering a copy at the witnesses’ address], and requires that the attorney go to the subpoenaed party’s office and make copies. In practice, the subpoenaed party typically wants to simply copy the records and provide them to whoever is named as “Deposition Officer” by the date and time indicated in the “Deposition Officer” box. If the box is left blank, it leads to confusion on the subpoenaed third party’s part as to when and to whom the documents are to be produced and whether they have to produce original documents or copies. The Solution: This Resolution amends Section 2020.420 to make clear that the attorney or an attorney’s employee can serve as Deposition Officer in order to obtain business records from a

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third party. If the attorney placed his or her own name in the box as Deposition Officer, the attorney runs afoul of Section 2020.420, and may be subject to an objection that will delay production. Therefore, allowing the attorney to serve as Deposition officer will aid third parties to the litigation in production of business records, and will clarify that any of the three methods on the Judicial Council Form may be used to do obtain records. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Mary V.J. Cataldo, Procopio, Cory, Hargreaves & Savitch, LLP, 12544 High Bluff Drive, Ste. 300, San Diego, CA 92130; (760) 444-1773 RESPONSIBLE FLOOR DELEGATE: Mary V.J. Cataldo

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RESOLUTION 08-09-2016 DIGEST Civil Procedure: Service of expert witness information Amends Code of Civil Procedure section 2034.260 to allow service of expert witness information by all means permitted by the Code. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Code of Civil Procedure section 2034.260 to read as follows: §2034.260 (a) All parties who have appeared in the action shall exchange information concerning 1 expert witnesses in writing on or before the date of exchange specified in the demand. The 2 exchange of information may occur at a meeting of the attorneys for the parties involved or by a 3 mailing serving the information on or before the date of exchange. 4 (b) The exchange of expert witness information shall include either of the following: 5 (1) A list setting forth the name and address of any person whose expert opinion that 6 party expects to offer in evidence at the trial. 7 (2) A statement that the party does not presently intend to offer the testimony of any 8 expert witness. 9 (c) If any witness on the list is an expert as described in subdivision (b) of Section 10 2034.210, the exchange shall also include 11 or be accompanied by an expert witness declaration signed only by the attorney for the party 12 designating the expert, or by that party if that party has no attorney. This declaration shall be 13 under penalty of perjury and shall contain: 14 (1) A brief narrative statement of the qualifications of each expert. 15 (2) A brief narrative statement of the general substance of the testimony that the expert is 16 expected to give. 17 (3) A representation that the expert has agreed to testify at the trial. 18 (4) A representation that the expert will be sufficiently familiar with the pending action to 19 submit to a meaningful oral deposition concerning the specific testimony, including any opinion 20 and its basis, that the expert is expected to give at trial. 21 (5) A statement of the expert's hourly and daily fee for providing deposition testimony 22 and for consulting with the retaining attorney. 23

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: This statute limits service of the expert witness information exchange to an in-person meeting between counsel or by mail. However, Code of Civil Procedure §2016.050 expressly permits any method of discovery to be served in accordance with Section 1013 (which

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includes mail, express mail, and facsimile or electronic transmission, if agreed to by the parties). There is no rational reason for limiting the method of service to essentially personal service by the attorneys or by mail. The Solution: This allows the expert witness information to be served in any manner authorized by the Code for discovery, in addition to an in-person service by counsel. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND PERMANENT CONTACT: Melissa L. Bustarde, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

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RESOLUTION 08-10-2016 DIGEST Government Code: Electronic Recording of Unlimited Civil Proceedings Amends Government Code section 69957 to expand electronic recording of proceedings; provides requirements for transcripts. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Government Code section 69957 to read as follows: §69957 (a) If an official reporter or an official reporter pro tempore is unavailable to report an 1 action or proceeding in a court, subject to the availability of approved equipment and equipment 2 monitors, the court may order that, in a limited civil case, inclusive of probate cases, or a 3 misdemeanor or infraction case, the action or proceeding be electronically recorded, including all 4 the testimony, the objections made, the ruling of the court, the exceptions taken, all 5 arraignments, pleas, and sentences of defendants in criminal cases, the arguments of the 6 attorneys to the jury, and all statements and remarks made and oral instructions given by the 7 judge. A transcript derived from an electronic recording may be utilized whenever a transcript of 8 court proceedings is required. Transcripts derived from electronic recordings shall include a 9 designation of “inaudible” or “unintelligible” for those portions of the recording that contain no 10 audible sound or are not discernible. The electronic recording device and appurtenant equipment 11 shall be of a type approved by the Judicial Council for courtroom use and shall only be 12 purchased for use as provided by this section. A court shall not expend funds for or use 13 electronic recording technology or equipment to make an unofficial record of an action or 14 proceeding, including for purposes of judicial notetaking, or to make the official record of an 15 action or proceeding in circumstances not authorized by this section. 16 (b) Notwithstanding subdivision (a), a court may use electronic recording equipment for 17 the internal personnel purpose of monitoring the performance of subordinate judicial officers, as 18 defined in Section 71601 of the Government Code, hearing officers, and temporary judges while 19 proceedings are conducted in the courtroom, if notice is provided to the subordinate judicial 20 officer, hearing officer, or temporary judge, and to the litigants, that the proceeding may be 21 recorded for that purpose. An electronic recording made for the purpose of monitoring that 22 performance shall not be used for any other purpose and shall not be made publicly available. 23 Any recording made pursuant to this subdivision shall be destroyed two years after the date of 24 the proceeding unless a personnel matter is pending relating to performance of the subordinate 25 judicial officer, hearing officer, or temporary judge. 26 (c) Prior to purchasing or leasing any electronic recording technology or equipment, a 27 court shall obtain advance approval from the Judicial Council, which may grant that approval 28 only if the use of the technology or equipment will be consistent with this section. 29 (d) A transcript derived from an electronic recording must be prepared by a California 30 certified shorthand reporter or a professional recording service that has been certified by the 31 federal court system or the Administrative Office of the Courts. A transcript derived from an 32

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electronic recording must be prepared in a typewritten format consistent with such rules as 33 adopted by the Judicial Council of California. 34

(Proposed new language underlined; language to be deleted stricken) PROPONENT: San Diego County Bar Association STATEMENT OF REASONS The Problem: Current law limits the availability of electronic recording of court proceedings to limited civil cases, misdemeanors and infractions. It does not allow electronic recording in unlimited civil cases, inclusive of probate, even if the courtroom has approved electronic recording equipment. The problem is that court reporters are no longer provided by the court in most departments hearing civil and probate cases, or their availability has been severely restricted, as a result of budget cuts. This leaves litigants with a choice of foregoing an oral transcript of the proceedings or to hire their own certified shorthand reporters if they want the proceedings reported. Current law authorizing electronic recordings of court proceedings does not specify the manner in which a typewritten transcript of an electronic recording must be prepared. California Rules of Court, rule 2.952(g), contains the requirements for the preparation of a transcript of an electronically recorded proceeding. However this allows a party to prepare what purports to be a transcript and allows the potential for gamesmanship. The Solution: This resolution amends Government Code section 69957 to expand the allowable use of electronic recording of proceedings to include all civil cases, inclusive of probate proceedings, where an official court reporter or official reporter pro tempore is unavailable to report the proceedings and the courtroom has an approved electronic recording system available. This resolution also codifies that the preparation of a typewritten transcript from an electronically recorded proceeding must be prepared by a certified shorthand reporter or an approved professional recording service certified by the federal courts or Administrative Office of the Courts. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Similar to Resolutions 06-02-2013, 08-03-2013, and 07-03-2012. Prior legislation, AB 215 (2013-2014 Reg. Sess.), died in committee. Related to AB 803 (2011) which failed to pass and would have eliminated current Government Code section 69957 and mandated the Judicial Council implement electronic reporting in at least 20% of all superior court courtrooms in the state and continue phasing in electronic reporting by expanding it an additional 20% on an annual basis. AUTHOR AND/OR PERMANENT CONTACT: Darin L. Wessel, Manning & Kass, Ellrod, Ramirez, Trester, LLP, 550 W. C Street, Suite 1900, San Diego, CA 92101, (619) 515-0269, [email protected]

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RESPONSIBLE FLOOR DELEGATE: Darin L. Wessel

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RESOLUTION 08-11-2016

DIGEST Civil Procedure: Service of Application of Good Faith Settlement Amends Code of Civil Procedure section 877.6 to allow service of an application of good faith settlement by personal service. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Code of Civil Procedure section 877.6 to read as follows: §877.6 (a) (1) Any party to an action in which it is alleged that two or more parties are joint 1 tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good 2 faith of a settlement entered into by the plaintiff or other claimant and one or more alleged 3 tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of 4 Section 1005. Upon a showing of good cause, the court may shorten the time for giving the 5 required notice to permit the determination of the issue to be made before the commencement of 6 the trial of the action, or before the verdict or judgment if settlement is made after the trial has 7 commenced. 8 (2) In the alternative, a settling party may give notice of settlement to all parties and to 9 the court, together with an application for determination of good faith settlement and a proposed 10 order. The application shall indicate the settling parties, and the basis, terms, and amount of the 11 settlement. The notice, application, and proposed order shall be given by certified mail, return 12 receipt requested or personally served. Proof of service shall be filed with the court. Within 25 13 days of the mailing of the notice, application, and proposed order, or within 20 days of personal 14 service, a nonsettling party may file a notice of motion to contest the good faith of the settlement. 15 If none of the nonsettling parties files a motion within 25 days of mailing of the notice, 16 application, and proposed order, or within 20 days of personal service, the court may approve the 17 settlement. The notice by a nonsettling party shall be given in the manner provided in 18 subdivision (b) of Section 1005. However, this paragraph shall not apply to settlements in which 19 a confidentiality agreement has been entered into regarding the case or the terms of the 20 settlement. 21 (b) The issue of the good faith of a settlement may be determined by the court on the 22 basis of affidavits served with the notice of hearing, and any counteraffidavits filed in response, 23 or the court may, in its discretion, receive other evidence at the hearing. 24 (c) A determination by the court that the settlement was made in good faith shall bar any 25 other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-26 obligor for equitable comparative contribution, or partial or comparative indemnity, based on 27 comparative negligence or comparative fault. 28 (d) The party asserting the lack of good faith shall have the burden of proof on that issue. 29 (e) When a determination of the good faith or lack of good faith of a settlement is made, 30 any party aggrieved by the determination may petition the proper court to review the 31 determination by writ of mandate. The petition for writ of mandate shall be filed within 20 days 32

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after service of written notice of the determination, or within any additional time not exceeding 33 20 days as the trial court may allow. 34 (1) The court shall, within 30 days of the receipt of all materials to be filed by the parties, 35 determine whether or not the court will hear the writ and notify the parties of its determination. 36 (2) If the court grants a hearing on the writ, the hearing shall be given special precedence 37 over all other civil matters on the calendar of the court except those matters to which equal or 38 greater precedence on the calendar is granted by law. 39 (3) The running of any period of time after which an action would be subject to dismissal 40 pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 41 8 of Part 2 shall be tolled during the period of review of a determination pursuant to this 42 subdivision. 43

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: This statute limits service of the application for a good faith settlement to certified mail (**Please note the application procedure in subsection (a)(2) is different from the motion for good faith settlement commonly used in subsection (a)(1)). Although a more reliable form of service should be required for the application period because failure to object automatically deems it a good faith settlement, there is no reason that personal service, the most reliable form of service, cannot be used. The Solution: This allows an application for good faith settlement to be personally served, in addition to service by certified mail. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND PERMANENT CONTACT: Melissa L. Bustarde, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

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RESOLUTION 08-12-2016 DIGEST

Amends California Rules of Court, rule 3.1308 to allow the court to notify parties of tentative rulings via telephone, via internet, or via e-mail.

Civil Motion Practice: Tentative Rulings Via Internet And E-Mail

TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Rules of Court, Rule 3.1308 to read as follows: Rule 3.1308 (a) Tentative ruling procedures 1 A trial court that offers a tentative ruling procedure in civil law and motion matters must 2 follow one of the following procedures: 3 (1) Notice of intent to appear required 4 The court must make its tentative ruling available by telephone, internet, or electronic 5 mail

(2) No notice of intent to appear required 17

, and also, at the option of the court, by any other method designated by the court, by no 6 later than 3:00 p.m. the court day before the scheduled hearing. If the court desires oral 7 argument, the tentative ruling must so direct. The tentative ruling may also note any issues on 8 which the court wishes the parties to provide further argument. If the court has not directed 9 argument, oral argument must be permitted only if a party notifies all other parties and the court 10 by 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must 11 notify all other parties by telephone or in person. The court must accept notice by telephone and, 12 at its discretion, may also designate alternative methods by which a party may notify the court of 13 the party's intention to appear. The tentative ruling will become the ruling of the court if the 14 court has not directed oral argument by its tentative ruling and notice of intent to appear has not 15 been given. 16

The court must make its tentative ruling available by telephone and also, at the option of 18 the court, by any other method designated by the court, by a specified time before the hearing. 19 The tentative ruling may note any issues on which the court wishes the parties to provide further 20 argument at the hearing. This procedure must not require the parties to give notice of intent to 21 appear, and the tentative ruling will not automatically become the ruling of the court if such 22 notice is not given. The tentative ruling, or such other ruling as the court may render, will not 23 become the final ruling of the court until the hearing. 24 (b) No other procedures permitted 25 Other than following one of the tentative ruling procedures authorized in (a), courts must 26 not issue tentative rulings except: 27 (1) By posting a calendar note containing tentative rulings on the day of the hearing; or 28 (2) By announcing the tentative ruling at the time of oral argument. 29 (c) Notice of procedure 30 A court that follows one of the procedures described in (a) must so state in its local rules. 31 The local rule must specify the telephone number for obtaining the tentative rulings and the time 32 by which the rulings will be available. 33

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(d) Uniform procedure within court or branch 34 If a court or a branch of a court adopts a tentative ruling procedure, that procedure must 35 be used by all judges in the court or branch who issue tentative rulings. 36 (e) Tentative rulings not required 37 This rule does not require any judge to issue tentative rulings. 38

(Proposed new language underlined; language to be deleted stricken) PROPONENT: San Mateo County Bar Association STATEMENT OF REASONS The Problem

: As of late, the vast majority of courts issuing tentative decisions do so, most commonly via their web site or through e-mail. And although the Rules of Court currently mandate that tentative decisions, if issued, be published via telephone, only a small faction of parties ever use the telephone to check tentative decisions. The reason why retrieval of telephonic tentative rulings are disfavored by the parties is because (1) it is often difficult to understand the speaker/robot reciting the tentative; (2) a party cannot study the language of the tentative without calling back multiple times until the complete message can be transcribed; and (3) waiting for a party’s own tentative to be read in a mass of other tentative decisions for that calendar can be tiring and time consuming.

But because the court is required by the Rules of Court to issue telephonic tentatives, the court must continue to expend time and resources on a system that very few litigants like and very few litigants use. The Solution

: Virtually anyone with a telephone now has internet and e-mail access. Electronic written communications are now inexpensive and ubiquitous. And parties without either phone or internet, can, at least, enjoy free internet access at the public library. They cannot, however, enjoy free telephone service in the same way. Meanwhile all California attorneys are expected to have some minimal facility with the internet, the competence to submit electronic filings, and to communicate with the court via e-mail. The State Bar now requires all attorneys to have e-mail addresses and to post them on the State Bar’s website.

The courts should be given the option to issue their tentatives via telephone, via internet, or via e-mail, as they see fit. They should be allowed to expend their resources in a way that makes economic sense. If any particular court decides that it does not serve its community to issue telephonic tentatives and wants to issue them via the internet instead, they should be allowed to do so. Courts should not be compelled to expend their limited resources providing services that few if any litigants choose to use anymore. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: B. Douglas Robbins, WOOD ROBBINS LLP, 1 Post Street, Suite 800, San Francisco, CA 94104, tel 415.247.7900 x204; fax 415.247.7901; [email protected] RESPONSIBLE FLOOR DELEGATE: B. Douglas Robbins