Don’t Roll the Dice on Discovery Deadlines – It Will Cost You

November 30, 2022 |


Pete Rose once said, “Unfortunately, gambling and winning don’t often go hand-in-hand.” A recent appellate court decision offers a lesson of the high cost of gambling (and procrastination) in litigation. In Golf & Tennis Pro Shop, attorneys made several risky gambles on a discovery deadline, turning what should have been a relatively inexpensive discovery dispute into a very costly one for their clients.

The question before the appellate court in Golf & Tennis Pro Shop was a matter of first impression: If a motion to compel challenges only a party’s written objections, does the 45-day time period for filing that motion begin when the written responses are served or when the verifications are served? Since objections need not be verified, the plaintiff argued, the 45-day time limit to challenge those objections should begin when the pro shop received unverified responses.

The appellate court disagreed. It found that although the construction offered by the plaintiffs (and endorsed by the trial court) made a lot of sense, it did not comport with the Code as it is currently written. The appellate court observed that the only trigger for the clock to run on a motion to compel set forth in the Code is the service of either “verified responses” or “supplemental verified responses.” The conclusion the court was forced to reach is that where a mix of objections and substantive responses are served, the clock on a motion to compel does not start until the written responses are verified, even if the motion only challenges objections.

While the court’s conclusion should have helped the pro shop immensely, the pro shop’s attorneys took unnecessary risks that doomed their motions. Critically, the pro shop’s motion to compel against two plaintiffs was filed one day too late. And while the pro shop’s motion filed against the third plaintiff was timely, the pro shop only served its notice of motion on the 45th day. For reasons never made clear, the pro shop waited a number of months before filing and serving its memorandum in support of its motion. This, the appellate court found, failed to comply with the requirements set forth in the Civil Code.

The pro shop lost big. Its motions to compel were denied because they were untimely. Monetary sanctions were upheld and the pro shop incurred substantial attorney’s fees to litigate a discovery motion on appeal. Worse, the appellate court criticized another bad move by the pro shop’s attorneys in filing only a notice of motion without any supporting papers (memorandum, declarations, etc.) on the last day. Although the attorneys filed the supporting papers in advance of the hearing date, the appellate court found it was “too little, too late.”

Don’t roll the dice on discovery deadlines, even if you think you have the winning argument. Contact litigators Eric Miller and Kelley Lincoln to advise you on how to obtain the information you need to present your best case in a timely and effective way.