MOTION FOR PROTECTIVE ORDER

XXX

XXX

XXX

XXX

NOTICE TO DEFENDANTS AND TO THEIR ATTORNEY(S) OF RECORD AND SPECIAL NOTICE TO THIS HONORABLE COURT:

NOTICE IS HEREBY GIVEN that on ________________________ at _________.M., or as soon after that as the matter can be heard, in Dept. 13 of the above-entitled Court located at ______________________ Plaintiff XXX will move this Court for a Protective Order, as justice requires.

This Motion will be based on the grounds that the Defendants are abusing the discovery process by making overly burdensome and oppressive discovery requests.

Further, the motion will be based on this Notice of Motion and the Memorandum set forth below, and on the records and file herein, and on such evidence as may be presented at the hearing of the motions.

Dated: ___________

Respectfully Submitted,

___________________________

XXX

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

1. Background

The incidence giving rise to this action began when Defendants constructed a fence between the property they owned and the Plaintiff’s property. The fence is so close to Plaintiff’s building wall that it prohibits Plaintiff from maintaining the siding, such as painting and making repairs. The fence also acts as a barrier and collects leaves from the nearby trees between the fence and the side of the Plaintiff’s home. Plaintiff informed Defendants on numerous occasions of the problems associated with the fence, but the Defendants have taken no action to correct the problems.

Plaintiff then instituted the instant case and sued the Defendant for creating a nuisance and for intentional infliction of emotional distress. Consequently, the parties entered the discovery process, and exchanged discovery requests. However, Defendants are abusing the discovery process by making overly burdensome and oppressive discovery requests.

1. Arguments

Code of Civil Procedure section 2031.060 (b) authorizes the Court to issue protective orders restricting the use of discovery methods where the Court determines that a selected method of discovery is unduly burdensome, taking into account the needs of the case. A court has the discretion to limit the scope of discovery if it determines that “the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (XXX(a). Code of Civil Procedure section 2031.060 (b) provides: The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (XXX).

Further, under California Code of Civil Procedure §2025.420, the court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. “One of the powers which has always been recognized as inherent in courts, which are protected in their existence, their powers and jurisdiction by constitutional provisions, has been the right to control its order of business and to so conduct the same that the rights of all suitors before them might be safeguarded.” XXX. “We have often recognized the ‘inherent powers of the court … to insure the orderly administration of justice.”’XXX.

California law is clear that the discovery act, while broad, does not support fishing expeditions that “place more burden on the adversary than the value of the information warrants.”XXX. Thus, in considering whether discovery is appropriate, “courts must weigh the relative importance of the information sought against the hardship which its production might entail.” Id., at 384. Moreover, discovery is meant to take the “game element” out of litigation, not to inject it into the process. See, Rutter Group, California Practice Guide,XXX

According to well-established California law, protective order motions are directed to the court’s inherent power to control the proceedings before it; thus, a protective order may be granted on the court’s own determination that “justice so requires.” XXX. For this reason, the grant or denial of relief therefore lies within the sound discretion of the law and motion judge and is reviewable only for abuse of discretion. Ibid.

In the instant action, Defendant’s discovery requests are unduly burdensome because the requests are burdensome and oppressive. Specifically, the Defendants filed and served: Form Interrogatories containing 48 interrogatories, Special Interrogatories containing 26 interrogatories, Request for production of Documents containing 16 requests, and Defendants Request for Admissions to Plaintiff Set One containing 10 requests.  Plaintiff asserts that all information requested by the Defense is either in their possession and/or publicly available. For instance, e-mails to and from the City of Pacific Grove with respect to the fence issue are readily available to the defense from the City of Pacific Grove. Also Defendants are in possession of photos pertinent to this case, and the names of all individuals involved and citations issued. It follows; all information with respect to the fence which is the subject matter of this litigation is readily available to the Defense except photos taken by the Plaintiff. Said photos are substantially the same as the photos taken by the Defense attorney, Mr. Pinelli. The only difference between the images taken by Mr. Pinelli and those by the Plaintiff Merry is time and a tape measure to indicate distance.

Therefore, it is Plaintiff’s contention that the Defense overstepped the required number of interrogatories since they have all the information they want to discover in their possession or is publicly available. Asking 100 discovery requests is using discovery as a weapon. The limit is 35 for Limited Cases. Justice therefore requires that the Court grant Plaintiff’s motion for a protective order to protect Plaintiff from an undue burden, oppression, harassment, and expense.

• Conclusion

WHEREFORE, Plaintiff requests this Court grant the following Order(s): this Honorable Court issues an Order granting Plaintiff Protection from Defendant’s abuse of the discovery process; this Honorable Court issues an Order directing Defendants to modify their Discovery Requests, to reflect Plaintiff’s concerns above, and, and this Court grants any other Order it deems just.

DATED:

Respectfully submitted,

___________________________

RORY MERRY

CERTIFICATE OF SERVICE

I hereby certify that on [ENTER DATE], a copy of the foregoing document has been sent to the Defendants in the following address:

[ENTER DEFENDANT’S ADDRESS]

DATED:

___________________________

XXX

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