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Understanding Seperate Statements May be Key to Avoiding Unnecessary Denials

by: Richard M. Coleman, Esq.
©The Daily Journal Corporation




I was sent the papers, moving and opposing, for a motion to compel answers at a deposition. Missing was a “separate statement.” I resisted the temptation to recommend denial of the motion on that basis. I wrote the parties, canceling the scheduled hearing and giving the moving party 10 days to supply the separate statement under the California Rules of Court. (An amendment that took effect Jan. 1, 2007, has changed the numbering of the rules.)

“All of the California Rules of Court have the force of law” and “throughout the rules, 'shall' and 'must' are mandatory.” (Introductory statement to the Rules.)

When is a separate statement required?

According to the California Rules of Court, Rule 3.1020 (formerly Rule 335), “[a]ny motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: (1) To compel further responses to requests for admission; (2) To compel further responses to interrogatories; (3) To compel further responses to a demand for inspection of documents or tangible things; (4) To compel answers at a deposition; (5) To compel or to quash the production of documents or tangible things at a deposition; (6) For medical examination over objection; and (7) For issue or evidentiary sanctions.”

A separate statement is not required when no response has been provided to the request for discovery.

What is required in a separate statement?

According to Rule 3.1020(c), “[t]he separate statement must include - for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested - the following: (1) the text of the request, interrogatory, question, or inspection demand; (2) the text of each response, answer, or objection, and any further responses or answers; (3) a statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute; (4) if necessary, the text of all defi nitions, instructions, and other matters required to understand each discovery request and the responses to it; (5) if the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and (6) if the pleadings, other documents in the fi le, or other items of discovery are relevant to the motion, the party relying on them shall summarize each relevant document.”

Little wonder the papers are voluminous. In one case, involving 13 motions, the papers stacked to 31/2 feet.

What is implicit in that list is made explicit in Rule 3.1020(c): “The separate statement must be full and complete so that no person is required to view any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference [emphasis added].”

Yet, time and time again, parties refer to documents the judge is supposed to locate on his or her own. Telling the judicial offi cer “see third amended complaint” invites denial of the motion.

In the case in question, the separate statement was supplied, and the motion was decided on its merits.



Richard M. Coleman, a Fellow of the American College of Trial Lawyers and former president of the Los Angeles County Bar Association, is a mediator with Alternative Resolution Centers [ARC] who also serves as discovery referee. He is on the faculty of Pepperdine’s Straus Institute for Dispute Resolution.

copyright © By Richard M. Coleman, Esq.





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