The title of this blog is a quote from the most basic tenant of the 2016 Discovery Act found in Code of Civil Procedure Section 2017.010 titled Matters Subject to Discovery which reads:

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” [Emphasis added]

The courts and the treatises liberally construe this statute and a party’s right to obtain the identity and location of witnesses.

Weil and Brown’s California Practice Guide: Civil Procedure Before Trial (TRG 2017) at 8:82 and 8:83 reads as follows:

[8:82] “Any discoverable matter”: Section 2017.010 et seq. Includes witnesses with “knowledge of any discoverable matter” . . . i.e., fact or opinion [Gonzales v. Sup. Ct. (City of San Fernando), supra, 33 CA4th at 1546, 39 CR2d at 901 (citing text)]

[8:83] Credibility: information regarding the credibility of witnesses is also discoverable: e.g., grounds for impeachment evidence of bias, etc. The credibility of their statements or testimony is itself “relevant to the subject matter.”

California Civil Discovery Practice Fourth Edition (2017) states:

The identity and location of persons who are not experts but who may have Knowledge of any discoverable matter is relevant to the subject matter of the litigation and is discoverable.  CCP §2017.010; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 C4th 360, 374 

“Our discovery recognizes that ‘the identity and location of persons having [discoverable] knowledge’ are proper subjects of civil discovery”: contact information about identity of class members generally discoverable.

Such persons may be actual witnesses to an event in dispute, or they may have knowledge that is based on heresay See Smith v. Superior Court (1961) 189 CA2d 6, 12; City & County of San Francisco v. Superior Court (1958) 161 CA2d 653, 656

In some cases, the identity of persons who have no information on the specific facts of a case may still be relevant to a claim regarding the opposing party’s regular business practices . . . Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 C3d 785.

In the case of Puerto v. Superior Court (2008) 158 CA4th 1242, the Second District Court of Appeal dealt with the issue of right of privacy for third parties stating:

The fact that we generally consider residential telephone and address information private does not mean that the individuals would not want it disclosed under these circumstances.  ‘While it is unlikely that the employees anticipated broad dissemination of their contact information when they gave it . . . they may reasonably be supposed to want their information disclosed to counsel whose communications in the course of investigating the claims asserted in this lawsuit may alert them to similar claims they may be able to assert. . .

Here, just as in Pioneer, the requested information, while personal, is not particularly sensitive, as it is merely contact information, not medical or financial details, political affiliations, sexual relationships, or personnel information (See, e.g., Pioneer supra, 40 Cal.4th at 372-373; Hooser v. Superior Court (2000) 84 Cal. App. 4th 997, 1004 [101 Cal. Rptr. 2d 341].) This is basic civil discover . . . Nothing could be more ordinary in discovery than finding out the location of identified witnesses so that they may be contacted and additional investigation performed.  (Planned Parenthood, supra, 83 Cal App. t p. 359 [home addresses and telephone numbers are ‘routinely produced during discovery”].)  As the Supreme Court pointed out in Pioneer, the information sought by petitioners here–the location of witnesses –is generally discoverable, and it is neither unduly personal nor overly intrusive. (Pioneer, at p. 373.)

Indeed, it is only under unusual circumstances that the courts restrict discovery of nonparty witnesses’ residential contract information.

Discovery may be prohibited where the information violates the right to privacy and is not necessary to the prosecution of the matter.  [Emphasis added]

RULE OF THE DAY:      You have the right to discover the identity and location of witnesses barring unusual circumstances and the information not being necessary to prosecute your case.

 

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Recently I received a telephone call from an attorney wanting to discuss whether opposing party’s objections to her special interrogatories had any merit.  Listening to the list of objections, it was clear that the opposing party had failed to assert the objections in good faith as the objections included a General Objection preamble and every response included the same boilerplate garbage objections.  However, one of the objections I hadn’t seen before:  “No preface or instruction shall be included with a set of interrogatories.  C.C.P. §2030.060(d).”  The propounding party had placed the definitions of specific terms in a preamble.  Did I think this was ok or not?

Statutes governing special interrogatories and requests for admissions do not allow for a preface or instruction.  Only when you are using Judicial Council forms for interrogatories and requests for admissions are a preface or instruction permitted.  See C.C.P. §§2030.060(d) and 2033.060(d).  Yet, both the special Interrogatories and requests for admissions statutes require that any term specifically defined shall be typed with all letters capitalized whenever the term appears. See C.C.P.  §§2030.060(e) and 2033.060(e)

The Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2016) takes a position on this is at ¶8:972, which states:

“[w]hether definitions may be placed at the beginning of specially prepared interrogatories is unclear . . . ”

“. . .However, the fact that §2030.060(e) requires specially defined terms to be capitalized strongly suggests they be placed in a single location.  Presumably, this should be at the beginning of the interrogatories . . . “

The California Civil Discovery Practice, Fourth Edition (CEB 2016) at §7.53 has a different take on prefaces, instructions and definitions for special interrogatories.

Prefaces and Instructions.  To ensure that the limitation on the number of interrogatories not circumvented by a lengthy preface or instructions that might amount to subparts (see §7.335), each interrogatory must be full and complete; no preface or instructions are allowed unless they have been approved by the Judicial Council under CCP §§2033.710 – 2033.740.  CCP §2030.060(d).

Definitions.  Definitions may be used in a set of interrogatories, and defined words must be capitalized whenever they reappear in the interrogatories.  CCP §2030.060(e).  Definitions can help counsel avoid repetition in drafting interrogatories, but they should be tailored to the particular action.  It is important to avoid confusion caused by terms not used in or applicable to the interrogatories propounded.  

Some examples of the use of definitions:

  • Who was the driver of the VEHICLE at the time of the accident on Nov. 1, 2005?  (“VEHICLE” is defined for the purposes of these interrogatories as the 2005 red Jeep Cherokee, California License No. RXV724.)
  • Who was the owner of the VEHICLE at the time of the accident on November 1, 2005?

In my opinion, CEB’s recommendation of putting the definition in the individual interrogatory is the better advice even though it is much more convenient for responding party to have the definitions at the beginning.  It is just not worth risking a court denying your motion to compel further answers on procedural grounds.

Decorative Scales of Justice in the CourtroomIn most practices areas, facts are king. The attorney who can discover and present the best “facts” will be the most persuasive when presenting their case to the judge or jury. However, some cases can be won in the law and motion department with a Motion for Summary Judgment and/or Summary Adjudication.  In these cases, the facts are less important than the law. If your case is one that you can win as a matter of law based on inconvertible facts (or the opponents admitted facts) and you believe that a Motion for Summary Judgment or a Motion for Summary Adjudication is appropriate, you need to develop a discovery plan specifically tailored to these motions.

As you know, a Motion for Summary Judgment and/or Summary Adjudication must be supported by admissible evidence. See C.C.P. §437c(b)(1). The moving party must present admissible evidence in support of each undisputed material fact necessary to entity them to judgment (or adjudication of the issue) in their favor. Therefore, if there is no admissible evidence with regard to a material fact, the motion will be denied. The discovery devices listed in order of most the useful to least useful for these motions are:

(1)       Requests for Admissions

(2)       Depositions

(3)       Interrogatories

(4)       Requests for Production of Documents.

Requests for Admissions are the most useful. The main purpose of Requests for Admissions is to set issues to rest by compelling admissions of things that cannot reasonably be controverted.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2015), ¶8:1256, citing Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 C3d 256, 261. If a party admits key facts, including legal conclusions, and/or authenticates documents you are in a better position to win a motion for summary judgment or summary adjudication.  Because a party can deny a request for admission, you should also be serving Form Interrogatory #17.1 as well as a Document Request asking for all documents listed in Form Interrogatory #17.1(d) to make sure that any questionable or frivolous denials are exposed.  See my blog “How to Write Requests for Admissions.”

Depositions are the “next best” discovery method after Request for Admissions. If there are facts, documents, etc. that require an explanation the witness with knowledge is the best means of obtaining this evidence, especially when your opposing counsel provides evasive or non-responsive answers to written discovery. However, the lawyer must be careful to ask precise questions so that there is a clear question and answer for purposes of supporting one or more facts in the separate statement.

Interrogatories are the third most useful discovery device. Interrogatories are good for establishing the basic nature of claims being presented, witnesses that might be available or other such broad based questions. They are usually not precise enough to support Motions for Summary Judgment, except when they are incredibly narrow. However, where the Motion for Summary Judgment is based on an absence of evidence that the opposing side has to support their case, an interrogatory may be useful to show that they were given ample opportunity to present that evidence.

Requests for Production of Documents, while essential, are only preliminary. One mistake young lawyers make (and some older ones) is that they believe if a party produces a document it is admissible in evidence. In fact, the Production of Documents even with a verification neither authenticates any document nor establishes the statements made therein.  Thus, it is important to follow up by using the Judicial Council Form Request for Admission and ask for authentication of documents, in addition to obtaining an admission that the document was, for example, sent by mail in the ordinary course of business to establish that the document was not heresy.

One common pitfall lawyers often make in filing a Motion for Summary judgment/summary adjudication is the timing. These motions require an exorbitant amount of time for notice–75 days (plus five for mailing). The last day these motions can be heard is 30 days before trial. Thus the last day to file a Motion for Summary Judgment and/or Summary Adjudication is 105 Days before Trial–that is before expert disclosure (50 days before trial) and the  discovery cutoff (30 days before trial).

Moral of the Story:  The decision to file a Motion for Summary Judgment and/or Summary Adjudication must be considered early in a case so you have adequate time to develop a discovery plan and obtain the discovery you need to file a successful motion.

 

Exasperated JudgeThere are very few discovery cases that come out each year.  Usually they are are significant and involve privileges such as Coito v. Superior Court and Catalina Island Yacht Club v. Superior Court.  The newly reported case  Mitchell v. Superior Court (2015) 243 CA4th 269 is not one of those cases.  However, it does demonstrate a trial court’s error in excluding witnesses at trial, because it did not understand the definition of “INCIDENT” in the Judicial Council Form Interrogatories and what the standard is in issuing evidence sanctions regarding discovery abuse .

The case involved an auto accident in which plaintiff was injured.  Defendant served Judicial Council Form Interrogatories which included Interrogatory No. 12.1.   Interrogatory No. 12.1, which is  under the 12.0 Investigation—General Series, reads as follows:

12.1 State the name, ADDRESS, and telephone number of each individual

(a)  who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT;

(b) who made any statement at the scene of the INCIDENT;

(c) who heard any statements made about the INCIDENT by any individual at the scene; and

(d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).

In her answers to this interrogatory, plaintiff only identified one witness.  Subsequently plaintiff identified three other witnesses whom she intended to call at trial to describe her how the accident affected her physically and how it impacted on her ability to do her job.  The trial court granted defendant’s motion in limine to exclude the testimony of the three witnesses for plaintiff’s failure to divulge their identity in the responses and supplemental responses to interrogatory 12.1.

The Second District Court of Appeals found that the trial court abused it’s discretion stating:

We read interrogatory No. 12.1 to seek the identities of percipient witnesses, witnesses who were at the scene immediately before or after the accident, those privy to statements by percipient witnesses to an accident and those who might have personal knowledge of the accident itself. The interrogatory does not seek the identity of witnesses—such as those whose testimony was excluded by the trial court—who may testify to the physical injuries or physical disabilities suffered by a plaintiff as a result of the accident. Our view that interrogatory No. 12.1 should be narrowly construed to refer to witnesses of the incident itself is bolstered by other form interrogatories, in particular Nos. 12.4 and 16.1, which distinguish between an “incident” and a plaintiff’s “injuries.”

Moreover, exclusion of a party’s witness for that party’s failure to identify the witness in discovery is appropriate only if the omission was willful or a violation of a court order compelling a response. (See Code Civ. Proc., §§ 2023.030, CCP 2030.290, subd. (c), 2030.300, subd. (e); see also Saxena v. Goffney (2008) 159 Cal. App. 4th 316, 333-335 [71 Cal. Rptr. 3d 469]; Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 273–275 [105 Cal. Rptr. 276].) Even if interrogatory No. 12.1 could be construed as a request for the identity of witnesses who would testify to post-accident physical disabilities and difficulties, there was no evidence that plaintiff’s failure to identify the witnesses was willful or that plaintiff contravened a court order to provide discovery.

Accordingly, it was error to impose an evidence sanction based on plaintiff’s failure to divulge the names of the three witnesses in response to interrogatory No. 12.1 or to defendant’s general request for supplemental responses to interrogatories.

HELPFUL HINT: Trial Departments are frequently removed from discovery battles and may not be familiar with the subtleties of the Discovery Act.  Nonetheless, this case and the Biles v. Exxon Mobil Corp (2004) 124 CA4th 1315 that I wrote about in “The Pitfalls of Bad Discovery Habits” are examples of trial courts’ misunderstanding of what a court needs to find before they can impose evidence sanctions. Keep both cases handy as they are important if you are ever opposing a motion in limine to exclude evidence that you didn’t produce during discovery.

businessman sitting at his desk and falling asleep

For years I have been blogging about bad discovery habits from Garbage Objections to unauthorized General Objections, and preached that attorneys must play by the rules. As you know if you have read my blogs, I am quite the supporter of the 1986 Discovery Act, and often express my opinions  on a party’s responsibility during the discovery process.  More importantly, I attempt to educate lawyers about the Discovery Act so they can be well prepared with their arguments when the court makes a wrong turn (yes, it does happen).

The case of Biles v. Exxon Mobil Corp. (2004) 124 CA4th 1315 is an example of the court’s misunderstanding of the Discovery Act and reacting erroneously to a garbage discovery response.  The facts are as follows:

Defendant Exxon served a special interrogatory asking plaintiff to identify “each person who has knowledge specifically of the work at [the Humble refinery] that you contend created your exposure to asbestos fibers.

Plaintiff responded:  “ After a reasonable and good faith inquiry, plaintiff currently has no further information responsive to this Interrogatory.  Plaintiff expressly reserves the right to amend or supplement this Response based on the outcome of such investigation.  Plaintiff’s investigation and discovery are continuing.”

Five months later, Exxon filed a motion for summary judgment.  Plaintiff’s opposition to the summary judgment included a declaration from a witness, which should have arguably defeated Exxon’s motion.  Exxon objected to the declaration of the witness on the ground that the witness had not been identified in plaintiff’s interrogatories responses.  The court sustained the objection and granted motion for summary judgement to Exxon.  The court rationalized its decision to strike the declaration stating:

Look, when you answer an interrogatory and you don’t give any names at all but say you are going to supplement it, the obligation is on you to supplement it as soon as you find out.”

The First District Court of Appeal reversed the trial court on three grounds: (1) there was no evidence that plaintiff’s initial response was willfully false at the time it was served, (2) there is no obligation to supplement without a court order [or having been served with a supplemental interrogatory] and (3) the appropriate sanction if there was any discovery abuse, absent unusual circumstances or a violation of court order, was monetary sanctions, not evidence sanctions.

It took a year for the Court of Appeal to right this wrong and probably thousands of dollars in attorney time that the attorney probably wrote off.  All because of the unnecessary language,  “Plaintiff expressly reserves the right to amend or supplement this Response based on the outcome of such investigation,” included in the discovery response, and due to plaintiff’s encounter with a judge who didn’t know the finer points of the Discovery Act (or ignored them).

A close-up of a Baseball or Softball Home Plate Umpire

Recently I received an e-mail from an attorney who followed my advice regarding General Objections.  It went like this:

“I read your article ‘Why you Need to Bring a Motion to Strike General Objections,’ and filed a ‘Motion to Strike Defendants’ Preliminary Statement and Unmeritorious Objections.’  The Preliminary Statement contained many of the issues you pointed out in your article, and each of defendants’ responses to interrogatories and document requests contained the same 28 lines of objections.  The court then separated the motions to compel from the motions to strike and refused to rule on the motion to strike stating “There is no such motion.” Is the court correct?”

The court is correct that a Motion to Strike pursuant to C.C.P. §435 and C.C.P. §437 is about the pleadings even though the request  “Move to Strike” is often used in discovery (i.e, portions of a declaration, objections in a deposition) even though it is not codified.  However, I have never seen a court refuse to deal with a discovery issue based on semantics of the notice.  In fact, according to Weil and Brown,  Civil Procedure Before Trial (TRG 2015) 9:2.3 citing Sole Energy Co. v. Petrominerals Corp. (2005) 128 CA4th, 187, 192-193 the label of the motion is not determinative.

Propounding parties are in a Catch-22 situation.  There is no provision allowing the General Objections or a Preliminary Statement in a discovery response so there is no remedy for it.  The following is my rationale for recommending the filing of such a motion with your motion to compel further responses.

  • The Code does not allow for general objections or preliminary statements.  A party must respond to the individual interrogatory or request and that includes any objection.  See my blog article “What is a General Objection?
  • Each written discovery device allows a party to bring a motion to compel further responses if an objection is “too general.” See C.C.P. §2030.300 and C.C.P. §2031.310.
  • C.C.P. §2023.010(e) says it is a misuse of the discovery process if a party makes an unmeritorious objection to discovery.
  • C.C.P. §2023.010(f) says it is a misuse of the discovery process for making an evasive response to discovery.
  • C.C.P. §2023.030 gives the court power to issue monetary, issue and evidence sanctions on a party for misuse of the discovery process.

Procedurally speaking the proper motion to bring is a Motion to Compel Further Responses pursuant to C.C.P. §2030.300 and C.C.P. §2031.310 with a Request for Sanctions for violation of C.C.P. §2023.010(e) and  C.C.P. §2023.010(f).In that motion, a party should:

  • Point out to the court that the General Objections and Preliminary Statements are not proper and ask the court to overrule the objections or strike them from the response as improper.
  • Request the court require a further response with a ruling that responding party is forbidden to use General Objections or Preliminary Statements in any of their responses.
  • Finally, stress to the court that you are entitled to sanctions.

To answer the attorney’s question “Is the Court correct?”  In my opinion, No!  The court has the “inherent authority to manage and control its docket” and should have ruled on the merits regarding defendant’s improper General Objections and Preliminary Statement.

iStock_000012781059_SmallUnlike Federal Rule Civil Procedure 26(e)(1) – (2), California law does not impose a continuing duty on a party to supplement their interrogatory or document responses.  Biles v. Exxon Mobil Corp. (2004) 124 CA 4th 1315.  Instead, the California Discovery Act has two statutes, C.C.P. §2030.070 and C.C.P. § 2031.050, that allow the propounding party to ask for updated information “bearing on answers already made” and “later acquired or discovered documents, tangible things, land or other property.”

Continue Reading Are You Following Up on Your Opponent’s Discovery Responses?

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Several times per month I receive questions from attorneys regarding a discovery dilemma.  Mostly the questions offer a novel twist on basic discovery.  However, this latest query was quirkier than most and raised some interesting issues and misconceptions, so I thought I would share it with you.   It went like this:

I served written discovery on a cross-defendant in a case, we are one of the defendants.  Cross-defendant (represented by, the plaintiff’s counsel) has appeared in this case by way of demurrer.  Cross-Defendant has refused to answer for the following reasons, (1) my clients are not parties to the cross-complaint so therefore we cannot propound discovery; (2) the court sustained the demurrer with leave to amend and the amended cross-complaint will be filed shortly by the cross-complainant; and (3) the cross-defendant lives in Europe and I need to go through the Hague Convention.  I don’t think any of these are legitimate reasons for not responding to discovery.

Continue Reading DISCOVERY GAMES AND MISCONCEPTIONS – Are These Objections Legitimate?

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Recently I was contacted to help on a party’s Motion to Compel Further Responses to Form Interrogatories, Requests for Production of Documents, and Requests for Admissions. In viewing opposing counsel’s responses to the discovery, I gazed upon the General Response and Objections preamble in absolute astonishment.  It read as follows:

Continue Reading Why You Need to Bring a Motion to Strike General Objections

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ANSWER:     A fictional document. A non-existent objection neither based in statutory authority nor found in case law. A statement by a party during the discovery phase that they will neither be held to the Code of Civil Procedure nor the rules of evidence.

In my years as a discovery referee, I have found that lawyers have gotten into the bad habit of inserting a preamble in their responses to interrogatories, requests for production and requests for admissions. These preambles often state the obvious as to what their rights are as responding parties. However, many times these preambles state general objections to the entirety of the propounded discovery and insert rights that are contrary to the obligations of the Discovery Act, the evidence code and current case law. Even though several interrogatories, requests for documents and request for admissions may be objectionable on the same ground they may not be objected to as a group. See Hogan and Weber, California Civil Discovery (2d. ed 2009) §51 Continue Reading What is a General Objection?