By the Time Defense Files the MSJ, It's Too Late to Ask for the Evidence You Didn't Get.
We reviewed court orders from over 50 California elder abuse cases. The same pattern: cases lost at MSJ not because the evidence didn't exist — but because nobody asked for it in discovery.
Download the free Sababin discovery package →You're running a practice. You have fifteen cases. When discovery opens, you use the requests that have mostly worked — medical records, care plans, the basics. You're busy. You're not going to call in NCIS to build a custom discovery plan for every case.
And that mostly works. Until MSJ.
Defense files their motion. Their expert says the facility provided care in most material respects. Any gaps were isolated, fell below the threshold of recklessness. Under Sababin, a facility that provides care on most occasions but misses a handful of interventions has not engaged in a significant pattern of withholding.
You look at your records. You can't point to the specific dates. You don't have the turning logs broken down shift by shift. You don't have the staffing records for those night shifts — the ones where the gaps almost certainly happened. You never asked for them with enough specificity to use them now. You have the chart, but you can't build the audit.
The evidence existed. It was in their records the whole time. Nobody asked for it.
We reviewed court orders from over 50 California elder abuse cases. The Sababin "significant pattern of withholding" argument — defense's go-to MSJ move on recklessness — doesn't succeed because defense has great facts. It succeeds because plaintiff can't point to a specific, dated record showing the pattern of omissions. The audit that defeats the argument has to be built in discovery. By the time the MSJ drops, you're either ready or you're not.
The free guide is the discovery package for this one argument — Pattern 6, the Sababin audit:
- The five record categories you need to request, for the full residency period, before you can run the audit
- The document requests, interrogatories, and RFAs — drafted to lock in the care plan requirements, then lock in the specific charting gaps date by date
- The audit spreadsheet — the tool that converts your records into the MSJ opposition. What the care plan required. What the charting reflects. Column A versus column B. Your expert attaches it to their declaration and opines on the pattern.
This is Pattern 6 of 14 in the complete discovery map. Download it free.
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The complete Pattern → Discovery Map — all 14 MSJ defense arguments, with targeted discovery packages for each — is Book 3: Get the Discovery You Need. $97.