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Civil Litigation Settlement Agreement

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Civil Litigation Settlement Agreement

At any time either before or after a lawsuit is filed, a family court matter is pending, a probate proceeding has commenced, or a trust litigation matter is at issue the parties may enter into a voluntary Settlement Agreement to resolve some or all of the issues. Whether it is a complete or partial Settlement Agreement all of the parties must sign and submit the Settlement Agreement to the Court for entry of Judgment on all matters specified by the Settlement Agreement. CA Civ Pro Code § 664.6 See-CODE OF CIVIL PROCEDURE – CCP

A Settlement Agreement can be a useful tool to narrow the issues for trial and thereby eliminate unnecessary issues which the parties agree upon. A Settlement Agreement will reduce the time needed for the attorneys to prepare for trial, to conduct the trial and thereby result in cost savings to the parties and provide finality on the settled issues. A Family Court Settlement Agreement is governed by more stringent legal principles due to the party’s fiduciary obligations. (See Family Court Settlement Agreement) Likewise a Probate Settlement Agreement may also be governed by more stringent fiduciary duties depending on the parties to the pending probate matter. (See Probate Court Settlement Agreement) A Trust litigation Settlement Agreement may also be governed by more stringent fiduciary duties depending upon the parties involved. (See Trust Litigation Settlement Agreement) However, regardless of the forum a Settlement Agreement is always a good approach to resolving undisputed issues prior to trial. The procedure for obtaining a Settlement Agreement is similar to contract formation with several caveats.

The Settlement Agreement Must Be Signed by All Parties

Unlike the steps an attorney may take on behalf of the client that are incidental to the management of a lawsuit,  such as making or opposing motions, seeking continuances, or conducting discovery, the settlement of a lawsuit is not incidental to the management of the lawsuit; it ends the lawsuit. Accordingly, settlement is such a serious step that it requires the client’s knowledge and express consent. (1 Witkin, Cal. Procedure (3d ed. 1985) Attorneys, § 194, pp. 221-222.) As we stated in Blanton v. Womancare, Inc. (1985) 38 Cal. 3d 396 [212 Cal. Rptr. 151, 696 P.2d 645, 48 A.L.R.4th 109]: ” ‘[T]he law is well settled that an attorney must be specifically authorized to settle and compromise a claim, that merely on the basis of his employment he has no implied or ostensible authority to bind his client to a compromise settlement of pending litigation. . . .’ ” ( Id. at p. 404, quoting Whittier Union High Sch. Dist. v. Superior Court (1977) 66 Cal. App. 3d 504, 508 [136 Cal. Rptr. 86].) Levy v. Superior Court, 10 Cal. 4th 578, 583 

The Settlement Agreement Should be Drafted in a Clear and Concise Manner

Settlement negotiations are protected discussions and with limited exceptions are confidential under the California Evidence Code. See- California Code, Evidence Code A proper Settlement Agreement should include the following:

  1. The terms of the Settlement Agreement should be clear to both parties including that the Settlement Agreement is and must be kept confidential.
  2. The Terms of the Settlement Agreement should make it clear that confidentiality applies to the dispute between the two parties, the negotiations that followed and the ultimate Settlement Agreement entered as a Judgment in the court proceedings.
  3. The Settlement Agreement should include language that specifies that breaking the confidentiality clause will be treated as a material breach of the Settlement Agreement.
  4. The Settlement Agreement should include a liquidated damages clause that specifies what monetary damages must be paid if either party breaches.

Of course, there are limitations on the extent and scope of a confidentiality clause but those matters are beyond the scope of this article. For more details or to consult with the Law Offices of Sam Walker regarding your specific situation please use our contact form to schedule a free 15-minute telephonic consultation.

Have Questions On Civil Litigation Settlements in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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The Nuts and Bolts of a Civil Jury Trial

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The Nuts and Bolts of a Civil Jury Trial

In Civil Litigation matters the parties have a right to a jury trial as opposed to family law and probate matters which proceed by a bench trial. A jury trial is different from a bench trial in that the ultimate issues of fact are decided by the jury instead of a judge. When you are involved in a civil litigation matter which proceeds to a jury trial there are several distinct stages of the process which will influence the outcome of the jury trial.

Understanding Jury Instructions

Prior to the trial attorneys for both sides will research the law and locate applicable jury instructions that they want the judge to read to the jury. These instructions may be offered to explain the burden of proof (Beyond a Reasonable Doubt – Clear and Convincing Evidence – Preponderance of the Evidence) to the jurors who will be applying these instructions to the facts of the case which they hear during the trial. Other instructions will be on the applicable legal issue such as the law of self defense or a particular real estate law or any other legal issue which the jury may need an explanation. The jury will apply only the laws as indicated in the jury instructions to the facts of the case in order to decide the outcome. Ultimately the Judge will decide which jury instructions will be read to the jury and whether those instructions will be given at the beginning or end of the trial. It is important to ensure that you have an attorney on your side who understands the significance of the process of selection of jury instructions and knows how to prepare those instructions that will further your legal position. To achieve a positive outcome, you need an attorney familiar with this phase of the jury trial process.

Understanding Jury Selection

The jury selection process is the phase of trial in which your attorney will interview/question potential jurors in the courtroom regarding topics that are applicable to the legal issues in question. The questioning will be designed to determine if any potential juror has an unacceptable bias about issues that are important to your case or has personal experiences or knowledge of circumstances which would be problematic for the juror to serve impartially on your jury. Each side will be given an opportunity to question the potential jurors and to make challenges for cause and/or peremptory challenges to remove certain jurors. Once both sides have had an opportunity to question the potential jurors and make any applicable challenges the judge will empanel the jury. The jury selection process is crucial, and we will approach this process in a professional manner based upon on our knowledge and experience.

Understanding Jury Deliberation

Once each side has presented all their evidence the judge will instruct the jury to deliberate and decide the outcome of the case. In the juror deliberation room, each member of the jury will be asked to provide their verdict on each of the legal issues based upon the facts shown at trial and the jury instructions provided to them by the judge. Once a sufficient number of jurors agree the juror foreman will certify their verdict.

Have Questions On A Civil Jury Trial in Los Angeles or Orange County County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Understanding A Creditor and a Claim?

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Understanding A Creditor and A Claim

An executor or administrator of an estate is required to give notice of administration to all know and reasonably discoverable creditors of the decedent. There is a formal process for giving notice which is the subject of another blog. (See Beneficiaries Residing in Another Country Blog) Once the required notice is given the creditors also have legal requirement and/or procedures for filing a claim against the estate of the decedent and failure to adhere to the legal requirements of the California Probate Code can lead to bar to enforcing the claim.

What is a creditor and a claim? A creditor and a claim are defined by the probate code as follows:

Probate Code § 9000. “Claim”
As used in this division:

(a) “Claim” means a demand for payment for any of the following, whether due, not due, accrued or not accrued, or contingent, and whether liquidated or unliquidated:

(1) Liability of the decedent, whether arising in contract, tort, or otherwise.

(2) Liability for taxes incurred before the decedent’s death, whether assessed before or after the decedent’s death, other than property taxes and assessments secured by real property liens.

(3) Liability of the estate for funeral expenses of the decedent.

(b) “Claim” does not include a dispute regarding title of a decedent to specific property alleged to be included in the decedent’s estate.

(c) “Creditor” means a person who may have a claim against estate property.

More Information

 

When and how must a creditor file a against the Decedent’s Estate? The probate code specifies how and when a creditor must file a claim as follows:

Probate Code § 9150. How a claim is filed

(a) A claim may be filed by the creditor or a person acting on behalf of the creditor.

(b) A claim shall be filed with the court and a copy shall be served on the personal representative, or on a person who is later appointed and qualified as personal representative.

(c) Service of the claim on the personal representative shall be made within the later of 30 days of the filing of the claim or four months after letters issue to a personal representative with general powers. Service shall not be required after the claim has been allowed or rejected.

(d) If the creditor does not file the claim with the court and serve the claim on the personal representative as provided in this section, the claim shall be invalid.

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What form is required to make a claim? The probate code specifies the form for any claim as follows:

Probate Code § 9153. Form for claim

A claim form adopted by the Judicial Council shall inform the creditor that the claim must be filed with the court and a copy delivered pursuant to Section 1215 to the personal representative. The claim form shall include a proof of delivery of a copy of the claim to the personal representative, which may be completed by the creditor.

More Information

What happens if a creditor does not file a claim against the estate on time? The probate code specifies that any late filed claims are barred as follows:

Probate Code § 9002. Claim requirement
Except as otherwise provided by statute:

(a) All claims shall be filed in the manner and within the time provided in this part.

(b) A claim that is not filed as provided in this part is barred.

More Information

Have Questions On Creditor and Claims in Los Angeles or Orange County County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Understanding Motions for Summary Judgment in California

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Motion for Summary Judgment and Adjudication

Either party in a civil lawsuit may request that the Court dismiss the opposing party’s entire case or specific causes of action or defenses under California Code of Civil Procedure Section 437c. (Reference Material)

Plaintiff’s Motion for Summary Judgment

If you are the Plaintiff and you believe that the opposing party’s response fails to set forth any defense to the entire complaint you may file a Motion for Summary Judgment against the Defendant. The motion cannot be made until at least 60 days after the Defendant files an answer or otherwise makes a general appearance. The Motion for Summary Judgment must comply with strict procedural guidelines and requires the moving party to submit all the following:

(1)  Notice of motion by [moving party] for summary judgment or summary adjudication or both;

(2)  Separate statement of undisputed material facts in support of [moving party’s] motion for summary judgment or summary adjudication or both;

(3)  Memorandum in support of [moving party’s] motion for summary judgment or summary adjudication or both;

(4)  Evidence in support of [moving party’s] motion for summary judgment or summary adjudication or both; and

(5)  Request for judicial notice in support of [moving party’s] motion for summary judgment or summary adjudication or both (if appropriate).

 

(Reference Material) Once these documents have been prepared they must be filed and served upon the opposing party in a sufficient time to allow the hearing to proceed at least 30 days prior to the date set for trial. (Reference Material)

Defendant’s requirements upon receipt of a Motion for Summary Judgment

Once the Defendant is served with the Motion for Summary Judgment they must respond timely and serve their response at least 14 days prior to the date set for the hearing on the Motion for Summary Judgment. The Defendant’s opposition to the Motion for Summary Judgment must also be supported by evidence including a Separate Statement of Undisputed Facts.

Plaintiff’s reply to the Defendant’s response to the Motion for Summary Judgment

Once the Plaintiff receives service of the Defendant’s response to the Motion for Summary Judgment they will have to file and serve their Response at least five days prior to the scheduled hearing.

The Hearing on the Motion for Summary Judgment

At the hearing, the Plaintiff and the Defendant will have the opportunity to argue their case before the judge. A judge will grant a Plaintiff’s Motion for Summary Judgment if it is conclusively proven that there are no disputable facts,

The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.

Have Questions On Motion for Summary Judgment and Adjudication in Los Angeles or Orange County County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Can My Landlord/Lender Evict Me During The COVID-19 Pandemic?

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Can My Landlord/Lender Evict Me During The COVID-19 Pandemic?

The Covid-19 pandemic has impacted nearly everyone to a greater extent than others. Most people who have non-essential employment or business income have seen a great reduction in their net income to the point where paying rent or a mortgage becomes impossible. If you are impacted by the Covid-19 and need assistance dealing with an unreasonable landlord or lender the following information is pertinent to your concerns and you may contact the Law Office of Sam Walker for a free telephonic consultation to discuss your option.

MUST I PAY RENT/MORTGAGE PAYMENT DURING THE PANDEMIC?

The Governor of the State of California issued a State of Emergency on March 4, 2020, which essentially required non-essential workers to stay home. (Learn More)  Other small businesses have been closed down completely and millions of Californian’s have been forced to file for unemployment or seek out a Small Business Loan. If you have been impacted by the Covid-19 pandemic you are still required to pay your rent/mortgage because there has not been as of the date of this blog any federal or State of California moratorium on rent/mortgage.

CAN I BE EVICTED BY MY LANDLORD OR LENDER FOR NON-PAYMENT OF MY RENT OR MORTGAGE?

The good news is that the Governor issued an executive order on March 27th limiting the legal rights of landlords and/or lenders to evict anyone from their home. The order prohibits landlords from evicting tenants for nonpayment of rent and prohibits enforcement of evictions by law enforcement or courts. It also requires tenants to declare in writing, no more than seven days after the rent comes due, that the tenant cannot pay all or part of their rent due to COVID-19. The tenant would be required to retain documentation but not required to submit it to the landlord in advance. And the tenant would remain obligated to repay full rent in a timely manner and could still face eviction after the enforcement moratorium is lifted. The order takes effect immediately and provides immediate relief to tenants for whom rent is due on April 1st.

On April 6th, the California Judicial Council provided further protections to those persons impacted by Covid-19 by enacting Emergency Court Rules which would prevent any landlord or lender from initiating unlawful detainer proceedings. The pertinent parts of the Emergency Rules are as follows:

(b) Issuance of summons

A court may not issue a summons on a complaint for unlawful detainer unless the

court finds, in its discretion and on the record, that the action is necessary to protect public health and safety.

(c) Entry of default

A court may not enter a default or a default judgment for restitution in an unlawful detainer action for failure of defendant to appear unless the court finds both of the following:

(1) The action is necessary to protect public health and safety; and

(2) The defendant has not appeared in the action within the time provided by

law, including by any applicable executive order.

Essentially until 90 days after the Governor lifts the State of Emergency which is currently set to expire at the end of May 2020 a Court may not issue a Summons or enter a Default Judgment against any person thereby preventing any use of the Courts to effect an eviction unless there are health and safety concerns under which an eviction may be justified.

Have Questions on Eviction in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Civil Procedure Before Trial – Motion to Strike All or Any Pleading

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Civil Procedure Before Trial – Motion to Strike All or Any Pleading

To commence a lawsuit a Plaintiff/Petitioner will file a Complaint, Objection or other pleading which requests relief from the Court. In civil matters a Complaint for damages is filed, in Family Court a Petition for Dissolution of Marriage is filed and in Probate Court a Petition for Administration of the Trust and/or Probate. Regardless of the Court any party may file a Motion to Strike all or a portion of any Pleading, “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof…” (Cal Code Civ Proc § 435) http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=435.

Prior to filing any Motion to Strike the Moving Party must Meet & Confer with opposing counsel to determine if an agreement can be reached and the necessity of filing a Motion to Strike can be avoided,  “Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Cal Code Civ Proc § 435.5) https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-435-5.html

Both Parties are required to provide legal support for their position during the Meet & Confer process to allow the opposing party the opportunity to review the legality of the opposing party’s position, “As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.” (Code Civ. Proc., § 435.5) https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-435-5.html

The Meet & Confer process is required to be initiated by the Moving Party at least five days prior to the date required for filing the Motion to Strike but if the Parties are not able to conduct the Meet & Confer conference prior to the deadline the Moving Party can obtain an automatic 30-day extension by filing a Declaration with the Court regarding their efforts to Meet & Confer prior to the deadline, “The parties shall meet and confer at least five days before the date a motion to strike must be filed. If the parties are unable to meet and confer at least five days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 435.5) https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-435-5.html

The purpose of these Statutes is to ensure that the Parties have the opportunity to review the opposing parties’ legal position prior to filing any Motion to Strike.

A Motion to Strike can be used to Strike any improper matter from a Pleading and/or any improper manner of Pleading,

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Cal Code Civ Proc § 436) https://casetext.com/statute/california-codes/california-code-of-civil-procedure/part-2-of-civil-actions/title-6-of-the-pleadings-in-civil-actions/chapter-4-motion-to-strike/section-436-authority-of-court-upon-motion

 

The grounds for filing a motion to Strike must appear on the face of the challenged Pleading or must be based upon a matter for which Judicial Notice (See Blog on Judicial Notice) may be taken,

(a) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Cal Code Civ Proc § 437) https://law.justia.com/codes/california/2005/ccp/437c-438.html

Have Questions On Civil Procedures in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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California Code of Civil Procedure Section 128.5 Sanctions

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California Code of Civil Procedure Section 128.5 Sanctions

Often times when involved in litigation there arises a dispute in which one party is alleged to have acted improperly and subject to Sanctions. A California Superior Court may impose Sanctions upon a party or their attorney if the Court finds that the party or their attorney has engaged in actions or tactics which were “made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”  (CCP 128.5(a)),

The California Legislature explained that an action or tactic is considered frivolous if it is, “…totally and completely without merit or for the sole purpose of harassing an opposing party.” (CCP 128.5(b)(2)) The burden to prove that an action or tactic was “frivolous” is on the party filing the motion for sanctions. (Bach v. McNelis (Cal. App. 3d Dist. Jan. 31, 1989), 207 Cal. App. 3d 852)

In order to file a successful motion for sanctions the legislature set forth several requirements and/or decisive factors which a court would be required to consider including but not limited to the following:

(A) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.

(B) If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.

(See, CCP 128.5 (f)(1)) Accordingly, the “Motion for Sanctions” must be made separately from all other motions and must describe in detail the action or tactic that was made in bad faith that is frivolous or solely initiated to cause unnecessary delay. As for the 21 day “Safe Harbor” provision the legislature specifically amended California Code of Civil Procedure Section 128.5 on January 7, 2017 to make crystal clear the that the requirement for a 21 day “Safe Harbor” provision was mandatory and was identical to the requirements that its previous version referred to under California (Code of Civil Procedure Section 128.7).   The Legislature amended CCP 128.5 due to conflicting rulings on the requirement to provide a 21 day “Safe Harbor” to the opposing party. The 21 day “Safe Harbor” requirement is a mandatory waiting period from the time of service of the proposed motion for sanctions on the opposing party and the date upon which it can be filed with the court, “the safe harbor period is mandatory and the full 21 days must be provided” (Nutrition Distribution, LLC v. Southern SARMs, Inc. (2018) 20 Cal.App.5th 117, 125) Failure to comply with the 21 day safe harbor requirement renders the motion for sanctions improper. Even if the motion for sanctions has merit the court must deny the request if the filing party failed to provide the opposing party the 21 day “safe harbor” notice of their intent to file prior to filing the motion for sanctions.

Have Questions On Civil Litigation in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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California eDiscovery

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California eDiscovery

The California Civil Discovery Act, Cal Code Civ Proc § 2016.010 et seq., includes the applicable rules for eDiscovery of Electronically Stored Information (ESI).  ESI can include any information stored in an electronic medium such as on a computer hard drive or other portable electronic storage device used for storing computer files, photographs, documents or any other electronic information.  A party to a legal proceeding may obtain discovery of any “reasonably accessible” ESI “…by inspecting, copying, testing, or sampling documents…and electronically stored information in the possession, custody, or control of any other party to the action.” (Cal Code Civ Proc § 2031.010, 2031.280, 2031.280)

When requesting ESI the parties should specify the “form or forms” in which the ESI should be produced, “a party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced.” (Cal Code Civ Proc § 2031.030)  Absent a request for a particular form of production the responding party will be required to produce the ESI as those records “are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand.” (Cal Code Civ Proc § 2031.280)  Generally, an ESI discovery request will seek production of electronic files which may include emails, text messages and social media postings but any type of ESI that is relevant to the lawsuit can be requested.  A party generally only is permitted to make one eDiscovery request throughout the conduct of the litigation and therefore should specify all type of ESI sought and further specify the form for production of the ESI.  If the parties have a disagreement regarding the scope or form of production of ESI they will be required to Meet and Confer prior to filing any motion regarding discovery.  (Cal Rules of Court, Rule 3.724)

With the production of mass information through eDiscovery there is a heightened possibility of inadvertent production of privileged information or attorney work product to the opposing party.  The legislature provides some protection from these inadvertent disclosures in that if a party inadvertently produces privileged information they may provide notice to the opposing party and the opposing party is then required to sequester the privileged information and refrain from use of such information without a further court order. (Cal Code Civ Proc § 2031.285)  The California Courts have also made it clear that inadvertent disclosures of privileged information even in the absence of a sufficient privilege log does not waive any claim of privilege if determined by the Court to be valid. (Catalina Island Yacht Club v. Superior Court, 242 Cal. App. 4th 1116 (Cal. App. 4th Dist. 2015)

The parties duties to maintain the integrity of their ESI may begin before the actual lawsuit is filed if the parties reasonably expected their dispute to proceed to litigation. Once the parties reasonably expect their dispute to proceed to litigation they may not alter, delete or swipe any ESI and can be sanctioned for doing so.  It is crucial that you speak to any attorney immediately if you have a dispute which will likely require filing a lawsuit so that you may be advised on all your ESI duties to preserve evidence. Furthermore, the parties will generally send a “Legal Hold” letter to the opposing party where there is an actionable dispute which specifies the ESI retention and protection required.

Have Questions On eDiscovery in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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