Thursday, January 25, 2007

So What Is Good Cause?

In the past week, I have appeared for two ex parte motions in two different counties. I lost both of them.

Normally, I do not like losing in the least. However, I was trying to take the grown-up mature approach to this one and figure out how I went wrong.

In both case, I was going in ex parte to get an order shortening time. In both cases, they were so that I could file motions to compel responses to discovery. In no particular order:

Case A, the discovery judge read the ex parte application. He ruled against me after he asked a couple questions. His denial was absed on the fact that we had served the underlying discovery request so late without any good cause to have delayed for so long. Ok, fine that makes sense. It was a tactical decision made by the attorney I was assisting that did not pan out the way it was hoped.

Case B, the discovery judge read the a similar ex parte application. In this one, more was aalleged as to the good cause. The application laid out what the issues were, why the discovery was needed, and the reason that the motion was coming so late (We could not have discovered the information any earlier). There was no way to have possibly brought the motion to compel any earlier. The application laid this out, along with the position that the opoosition was taking position that they were denying a number of things which would pertinent to the case, especially when it came to the habitability of the place. Finally, the motion also laid out how these issues would be relevant at trial. And the judge denied it saying that there was no evidence of good cause.

So will someone explain where the threshold is? In case A, I see why the judge denied. In case B, .... I just don't know. The only good thing I can say is, in both cases we won.

1 comment:

The Uncivil Litigator said...

Depends on the jurisdiction of course, but judges generally hate discovery disputes and are loathe to wade into them and grant relief unless they absolutely have to. Judges don't want to create reputations for granting such relief and thereby encouraging other lawyers to constantly pester them with discovery disputes. And truth be told, many discovery disputes can be resolved by the lawyers through phone calls without using up judicial resources. Just my 2 centavos.