Wednesday, July 30, 2014
Friday, July 25, 2014
Thursday, July 24, 2014
How to respond to requests for production of documents in United States District Court
How to respond to
requests for production of documents in United States District Court is the
topic of this blog post. Requests for
production of documents in United States District Court are governed by Rule 34
of the Federal Rules of Civil Procedure (Rule 34) and in United States
Bankruptcy Court by Rule 7034 of the Federal Rules of Bankruptcy Procedure.
The responding party
must serve the responses to the requests for production of documents on the propounding
party and all other parties to the action that have appeared within 30 days
after service unless otherwise stipulated or ordered by the court. This time period is extended to 33 days if
the requests were served by mail.
The responses must
comply with the applicable provisions of Rule 34. Each request must be responded to separately
and under oath and the attorney must sign any response that contains any
objections.
The responding party
should keep in mind that the Federal courts in particular are notoriously
intolerant of generic or “boilerplate” objections that are interposed without
any supporting facts. Examples include
“overbroad and oppressive” where no details are provided as to why the request
is overbroad and oppressive. The use of
boilerplate objections with no supporting facts may result in the imposition of
significant monetary sanctions as well as waiver of the objections.
Responses to requests for producing electronically stored
information should comply with the following provisions of Rule 34:
Rule 34(B) states
that, “For each item or category, the response must either state that
inspection and related activities will be permitted as requested or state an
objection to the request, including the reasons.”
Rule 34(C) states that, “An objection to part of a request
must specify the part and permit inspection of the rest.”
Rule 34(D) states that, “The response may state an objection
to a requested form for producing electronically stored information. If the
responding party objects to a requested form—or if no form was specified in the
request—the party must state the form or forms it intends to use.”
Rule 34(E) states that, “Producing the Documents or
Electronically Stored Information. Unless otherwise stipulated or ordered by
the court, these procedures apply to producing documents or electronically
stored information:
(i) A party must produce documents as they are kept in the
usual course of business or must organize and label them to correspond to the
categories in the request;
(ii) If a request does not specify a form for producing
electronically stored information, a party must produce it in a form or forms
in which it is ordinarily maintained or in a reasonably usable form or forms;
and
(iii) A party need not produce the same electronically
stored information in more than one form.”
Attorneys or parties
who would like to view a portion of a sample 13 page responses to requests for
production of documents in United States District Court under Rule 34
containing brief instructions for responding, a generic verification under oath
with notary acknowledgment for use in most states, a specific verification for
California only, and proof of service by mail sold by the author can use the
link shown below.
*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.
Follow the author on Twitter at: https://twitter.com/LegalDocsPro
You can view sample legal document packages for sale by visiting: http://www.legaldocspro.com
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
Tuesday, July 22, 2014
How to respond to interrogatories in United States District Court
How to respond to interrogatories in United States District Court is the topic of this blog post.
Written interrogatories are governed by Rule 33 of the Federal Rules of Civil Procedure.
The responses to the
interrogatories must be served on the propounding party and all other parties
to the action within 30 days after service unless a stipulation has been
entered into or a court order has been obtained granting an extension of
time. The deadline for the responses is extended
to 33 days if the interrogatories were served by mail.
Rule 33(b)(3) states
that, “Each interrogatory must, to the extent it is not objected to, be
answered separately and fully in writing under oath.”
Any objections to any
particular interrogatory must be stated with specificity as grounds for
objection that are not stated in a timely fashion will be waived unless
otherwise ordered by the court on a showing of good cause. See Rule 33(b)(4).
The responding party
should understand that the Federal courts in particular are notoriously
intolerant of generic or “boilerplate” objections that are interposed without
any supporting facts. Examples include
“vague and ambiguous” where no details are provided as to why the interrogatory
is vague and ambiguous. The use of boilerplate objections with no supporting
facts may result in the imposition of significant monetary sanctions as well as
waiver of the objections.
The responses must
be signed under oath and the attorney must sign any response that contains any
objections.
Attorneys or parties who would like to view a portion of
a sample 10 page responses to interrogatories in United States District Court
under Rule 33 containing brief instructions for responding, a generic
verification under oath with notary acknowledgment for use in most states, a
specific verification for California only, and proof of service by mail sold by
the author can use the link shown below.
Over 300 sample legal documents for California and Federal litigation for sale.
To view more information on over 300 sample legal documents
for California and Federal litigation visit: https://legaldocspro.myshopify.com/products
The author of this blog post, Stan Burman, is an
entrepreneur and retired litigation paralegal that worked in California and
Federal litigation from January 1995 through September 2017 and has created
over 300 sample legal documents for sale.
Do you want to use this article on your website, blog or
e-zine? You can, as long as you include this blurb with it: “Stan Burman is the
author of over 300 sample legal documents for California and Federal litigation
and is the author of a free weekly legal newsletter. You can receive 10 free
gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for
more information.
Follow Stan Burman on Twitter at:
Follow Stan Burman on Google Plus at:
DISCLAIMER:
Please note that the author of this blog post, Stan Burman
is NOT an attorney and as such is unable to provide any specific legal advice.
The author is NOT engaged in providing any legal, financial, or other
professional services, and any information contained in this blog post is NOT
intended to constitute legal advice.
The materials and information contained in this blog post
have been prepared by Stan Burman for informational purposes only and are not
legal advice. Transmission of the information contained in this blog post is
not intended to create, and receipt does not constitute, any business
relationship between the author and any readers. Readers should not act upon
this information without seeking professional counsel.
Sunday, July 20, 2014
Saturday, July 19, 2014
Code of Civil Procedure section 415.50 service by publication in California
Code of Civil Procedure section 415.50 service of a summons
and complaint by publication in California is the topic of this blog post. Code
of Civil Procedure section 415.50 authorizes service by publication but only if
certain strict requirements are met. A
summons and petition in a dissolution (divorce), legal separation or nullity
proceeding in California can also be served by publication.
Service by publication while necessary in some cases is very
expensive, in fact the cost of service by publication in most cases will equal
or exceed $500.00 or more! In fact the
cost is one of the biggest drawbacks to service by publication. As a result service
by publication should only be considered as a last resort in cases where a
defendant or respondent truly cannot be served in any other authorized
manner. Anyone considering requesting
service by publication should consider retaining an experienced “skip tracer”
to locate the defendant or respondent as the fee will almost surely be much
less than service by publication.
Another disadvantage is that the defendant or respondent may
file a motion to vacate any judgment even years after the judgment is entered
and may stand a good chance of having their motion granted if they can show
that the plaintiff or petitioner failed to exercise reasonable diligence in
attempting to locate them, committed perjury in obtaining the publication order
or submitted a defective affidavit or declaration.
The plaintiff or petitioner must submit an affidavit or
declaration under penalty of perjury showing that the defendant or respondent
cannot, with reasonable diligence, be served in another authorized manner, that
a cause of action exists against such person or that person is a necessary or
proper party to the action. See Code of Civil Procedure § 415.50(a)(1).
It should be stressed that even a verified complaint or
petition for dissolution or other family law proceeding is not a substitute for
the required affidavit or declaration establishing that a cause of action
exists against the defendant or respondent.
Alternatively the plaintiff can submit an affidavit or
declaration stating that the party to be served has or claims an interest in
real or personal property in California that is subject to the court's
jurisdiction, or the relief demanded in the action consists wholly or in part
in excluding such party from any interest in such property. See Code of Civil
Procedure § 415.50(a)(2).
Service by publication is the least likely method to give a
defendant or respondent actual notice of the proceeding as it essentially
imparts only what is known as "constructive" notice. Thus the “reasonable
diligence" required is much more burdensome than that which would allow
for substitute service under Code of Civil Procedure § 415.20.
Essentially section 415.50 authorizes only a last resort
form of service where the whereabouts of the defendant or respondent are
unknown and he or she has no known fixed location where service in another
authorized manner can be performed.
The California Courts of Appeal have stated that an order
permitting service by publication may not rest simply on the alleged
"actual ignorance" of the whereabouts of the defendant or respondent.
Instead, the courts "necessarily" must require a showing of exhaustive
attempts to locate respondent.
Even the fact that a defendant or respondent cannot be
physically located does not mean there is no available alternative method of
service. For example, where a defendant or respondent has a known post office
box, "reasonable diligence" to effect service other than by
publication requires attempted Code of Civil Procedure § 415.30 service by mail
at the P.O. box; otherwise, an application for published summons is
"defective as a matter of law." Transamerica Title Ins. Co. v.
Hendrix (1995) 34 Cal.App.4th 740, 746--though D was unlocatable, P knew D's
post office address and that his mail was being picked up there.
And the supporting declaration(s) attesting to the efforts
made to locate the defendant or respondent and to effect alternative service must be
executed by persons with personal knowledge of the facts such as the process
server and/or attorney who conducted the search and submitted to the court in
application for an order authorizing service by publication. General
allegations and conclusions that the defendant or respondent cannot be found
are insufficient. see Transamerica Title
Ins. Co. v. Hendrix, supra, 34 Cal.App.4th at 742-743--declaration stating
"Defendant's address unknown" defective "as a matter of law".
Note that submitting defective reasonable diligence
declarations can have serious consequences even if the Court orders service by
publication.
Unless an affidavit or declaration is submitted
demonstrating on personal knowledge that a plaintiff or petitioner exercised
the requisite reasonable diligence to locate respondent, a judgment based on
published service is void and subject to direct or collateral attack.
The court order authorizing service by publication must
direct summons to be published in a named California newspaper most likely to
give defendant or respondent actual notice and, if defendant or respondent
resides out of state, may also order publication in a named newspaper outside
California that is most likely to give actual notice. The court's order must
further direct that a copy of the summons, complaint or petition and order for
publication "be forthwith mailed" to defendant or respondent if his
or her address is ascertained before expiration of the time prescribed for
publication. Code of Civil Procedure § 415.50(b); Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42-43
--selection of Riverside newspaper for publication failed "most likely to
give actual notice" standard where Ps admitted D no longer resided in
Riverside and received mail elsewhere.
Publication must occur at least once a week for four
successive weeks (unless the court, in its discretion, orders a longer period).
Generally, five days should elapse between the successive publication dates. Code of Civil Procedure § 415.50(b); see Government
Code § 6064.
An order for publication does not preclude service in
another authorized manner. If alternative service is made during the
publication period, published summons is superseded. Code of Civil Procedure § 415.50(d).
Service by publication is deemed complete, and the 30-day
response period commences to run, on the 28th day following the first day of
publication (inclusive of the first day). Code of Civil Procedure § 415.50(c); see Government
Code § 6064.
However, the response period may begin sooner if another
authorized manner of service is performed in the interim.
Over 300 sample legal documents for California and
Federal litigation for sale.
To view more information on over 300 sample legal documents
for California and Federal litigation visit: https://legaldocspro.myshopify.com/products
The author of this blog post, Stan Burman, is an
entrepreneur and retired litigation paralegal that worked in California and
Federal litigation from January 1995 through September 2017 and has created
over 300 sample legal documents for sale.
Do you want to use this article on your website, blog or
e-zine? You can, as long as you include this blurb with it: “Stan Burman is the
author of over 300 sample legal documents for California and Federal litigation
and is the author of a free weekly legal newsletter. You can receive 10 free
gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for
more information.
Follow Stan Burman on Twitter at:
Follow Stan Burman on Google Plus at:
DISCLAIMER:
Please note that the author of this blog post, Stan Burman
is NOT an attorney and as such is unable to provide any specific legal advice.
The author is NOT engaged in providing any legal, financial, or other
professional services, and any information contained in this blog post is NOT
intended to constitute legal advice.
The materials and information contained in this blog post
have been prepared by Stan Burman for informational purposes only and are not
legal advice. Transmission of the information contained in this blog post is
not intended to create, and receipt does not constitute, any business
relationship between the author and any readers. Readers should not act upon
this information without seeking professional counsel.
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