I began the process by creating a statewide committee with three plaintiff counsel, three developer counsel, three subcontractor counsel, two insurance coverage counsel, one architects and engineer counsel and one public entity counsel.  Each of these members are prominent lawyers in construction litigation and many have spoken at West Coast Casualty's Annual Construction Defect Seminar.   

Two years and ten drafts later we submitted our final version of the Form Interrogatories–Construction Litigation to the Discovery Committee of the Civil and Small Claims Advisory Committee.  The final draft had approximately 90% consensus with various members having issues with certain parts.  The goal of the final version of the Form Interrogatories–Construction Litigation was to be all-inclusive with the idea that once vetted through the Civil and Small Claims Committee and the comment period some of the proposed interrogatories may be removed.  

In 2011, the Judicial Council formed a second committee to work on the final version of the Form Interrogatories–Construction Litigation.  Included in that committee were two construction litigation attorneys from Consumer Attorneys of California, two construction litigation attorneys from California Defense Council,  and myself.  The five of us worked for more than six months negotiating, rewriting and finalizing the final draft, which was provided to the Civil and Small Claims Committee of the Judicial Council in November of 2011.  

Five years, twenty drafts and hundreds and hundreds of non-billed attorney hours later, the Civil and Small Claims Committee of the Judicial Council is recommending the Form Interrogatories – Construction Litigation be adopted and has invited the public to comment.   

The Civil and Small Claims Committee states in their Invitation to Comment that:

The proposed Form Interrogatories—Construction Litigation (form DISC-005) will follow the same format as the other Judicial Council form interrogatories.  The instructions at the beginning are essentially the same as in the other form interrogatories, with two exceptions.

First, the use of the form will be limited to smaller cases, except with leave of court. In residential construction cases, the proposed form interrogatories are not intended for use in actions that involve more than five residential units, and in complex cases, they are not to be used until after a court has found good cause. Specific comments are requested on these limitations (see the box at the end of this invitation).

Second, the instructions recognize that in many construction cases a document depository is created, so they permit responses in the form of identifying those documents in such a depository that contain the information sought in an interrogatory.

Other notable aspects of the proposed form interrogatories include the following:

As with other civil form interrogatories, parties will be able to attach additional individually crafted interrogatories should they wish.

The definitions in the construction form interrogatories parallel those in the general form interrogatories but add terms specific to construction litigation. In addition, because the use of “Incident” as a defined term would be confusing in these interrogatories, that term has been replaced with “Construction Claim” and “Construction Defect Claim.”

The proposed construction interrogatories are intended to serve as a single integral set of interrogatories rather than as a discrete set of specialty interrogatories for use in addition to or as a supplement to other form interrogatories. Hence, they include interrogatories on several topics included in the general civil form interrogatories, with some tailored to more specifically address construction cases.

None of the questions concerning personal injury from the general form interrogatories are included in the proposed form. Such interrogatories would only infrequently be applicable in a construction case, and the committee concluded that their presence in this set would unnecessarily complicate the form.

The Invitation to Comment also is requesting comments on the following:

Does the proposal appropriately address the stated purpose?

Would the proposed form interrogatories be appropriate and helpful in construction litigation as limited in the instructions? That is, in residential construction cases involving no more than five units, in commercial construction cases not deemed complex, and in complex construction cases only with permission of the court?

Should the instructions allow the form interrogatories for use in somewhat larger residential construction cases as well? Would they be appropriate and useful in actions involving up to 10 residential units? Would some other number—higher or lower—be more appropriate?

Should the defined terms remain formatted as in the attached, in boldface and all capital letters or, in order to make the form more readable, be changed to just boldface, without the capitals? An example of such formatting of defined terms can be seen in Form Interrogatories – Family Law (form FL-145).

I want to thank each of the committee members for their hard work and dedication.  Despite their differences with one another on various issues, as a whole we worked hard as a team and were proud of our end product.  I also want to thank Anne Ronan, staff Attorney for the Judicial Council who too worked endless hours on this project.  Most of all I want to thank the Civil and Small Claims Committee for recognizing all the hard work the attorneys have dedicated to making the Form Interrogatories–Construction Litigation a reality by recommending the interrogatories and inviting the public to comment.    

If you have any questions regarding the Form Interrogatories–Construction Litigation, please do not hesitate to contact me.  

“ Is there any chance you can send me a link to an example "meet & confer" declaration form”

Wouldn’t it be nice to have a Judicial Council form where you could check the boxes on such a form and be done with it? The judge should just assume that you did what needed to be done and grant your motion. Isn’t that the way it should be? I mean, really, aren’t we all professionals and if you say that you met and conferred in good faith your word should be enough. Right? Not quite…

The purpose of the “meet and confer” requirements set forth in C.C.P. §§ 2025.450(b)(2)(pdf)), 2025.480(pdf), 2030.300(b)(pdf), 2031.310(b)(pdf), 2032.250(pdf) and 2033.290(pdf) was for the lawyers to revisit their position, in good faith discuss a resolution and avoid unnecessary discovery motions.

Unfortunately, times have changed since the Discovery Act of 1986 went into effect. No longer can a law firm afford to have an associate sit at the knees of a respected senior partner and watch and listen and not bill. No longer do lawyers have time for the “two martini” lunch in order to get input from their colleagues about cases they are having trouble with. No longer is the legal community so small that you know you are going to see opposing counsel again and fear their retaliation.

For the last twenty years, many of us, had to learn how to litigate by doing and suffering the repercussions. Bad habits, abuse and inaccuracies regarding the law have begat more bad habits, abuses and inaccuracies. It seems like more and more cases are doing battle in the gutter then in the courtrooms. This is most evident in the in the discovery battles and the failure of counsel to “meet and confer” in good faith.  

Despite a party's threat that they will seek sanctions, no court is going to award sanctions if you don't meet and confer in good faith and in fact will sanction you if you don't.  See C.C.P. §2033.290 (pdf) 

The leading case on “meet and confer” requirements is Obregon v. Superior Court (1998) 67 CA4th 424 (pdf). The Second Appellate District stated that in determining whether a party has met and conferred met and conferred in good the court should consider the following relevant factors:

1. The history of the case and the past conduct of counsel as it reflects upon the bona fides of their efforts;

2. the nature and extent of the actual efforts expended;

3. the nature of the discovery requested and its importance to the case;

4. the size and complexity of the case;

5. the effect of expense upon litigation of the case; and

6. whether or not the discovery propounded would be so expensive for the other side that its intent was to force settlement other then to reach the merits of the case. Obregon at 431.

Obregon is a helpful case for the court’s, but what about the litigants. What should they be doing? According to Townsend v. Superior Court (1998) 61 CA 4th 1431 at 1439 (pdf), 

“a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." [Emphasis added]

In order to meet this standard, each side has their own responsibilities. These are my suggestions:

PROPOUNDING PARTY

First: Once you have determined that you will need supplemental responses to you propounded discovery, call opposing counsel and set up a time to meet in person. Tell him/he that you will prepare a written response to his objections so you can go through them.

Second: Review your requests and determine whether or not the objections are valid. Prepare your written “meet and confer” letter in the format of a Separate Statement of Items in Dispute (pdf).  That way you are ready to file your motion to compel further responses, if it becomes necessary. Remember a  “single brief letter” with no explanation why the discovery was proper does not constitute a reasonable and good faith attempt at informal resolution. See Obregon  at 432.

Third: Prepare a draft protective order to bring to the meeting if any objections are as to privacy, trade secrets, etc.

Fourth: Consider bringing in a discovery referee to mediate the discovery disputes, do an in camera review and/or to make a finding if necessary.

Fifth: Make sure you get a written stipulation extending your time to bring a motion to compel further responses. The meet and confer process DOES NOT extend the 45 Day limit within which the propounding party must file a motion to compel further responses.  See Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681 at 683-684 (pdf).

At the meeting:

• Propose a protective order;
• Ask for authorizations for third party custodian of records instead of the document request; and/or
• Agree to narrow the scope of discovery by issues, time, location, etc.

RESPONDING PARTY

First: Offer or agree to an in person meeting to meet and confer.

Second: Prior to the meeting, revisit your objections and determine whether any are garbage objections.  If any are, offer to withdraw them.

Third: Determine what is your real complaint to the discovery requests:

• If vague and ambiguous, offer definitions and/or a revised version which you will answer.
• If overbroad and burdensome, then offer a revised version narrowing the scope and/or offer signed authorizations to third party custodian of records.
• If you are objecting on grounds of privacy, trade secrets, etc., prepare a protective order  and bring it to the meeting.

At the meeting:  offer your compromises and don’t try and defend your garbage objections.

MORAL OF THE STORY: Litigators need to put down the sword and talk to one another when the discovery battles begin. These battles cost your clients money and you too much time and angst.

So with the above being said, here are some scenarios and some helpful hints for the party on the receiving end of the "Declaration of Necessity."

At the beginning of a case, opposing counsel serves, form interrogatories with all the appropriate boxes including 17.1 checked, 35 special interrogatories, 35 requests for admissions and 25 requests for production of documents.

Though the above discovery is permitted by code, the total number of interrogatories (remember the subparts in the form interrogatories) and requests are going to be in the hundreds. In responding to this discovery, you are going to spend tens of hours and cost your client thousands of dollars and this is just the initial volley of discovery.

Do not ignore the abusive tactic from opposing counsel. It is important that you set the tone of the case immediately. Send a meet and confer letter to opposing counsel asking him to withdraw the 35 special interrogatories and/or requests for admissions. Advise counsel that:

1. The total of form interrogatories (add subparts including the 17.1 series for each request for admission) the special interrogatories, requests for admissions and the requests for documents are in the hundreds and it will take you tens of hours to respond;
2. Specially prepared interrogatories and requests for admissions are more appropriate for later stages of discovery;
3. Deposition of your client is a more efficient use of time and money at this stage of the litigation;
4. The specially prepared interrogatories and requests for admissions coupled with the other discovery requests are harassing and are intended to waste time and money;
5. he facts and issues in the case are not complex; and
6. If the requests for admissions and specially prepared interrogatories are not withdrawn, you will file a protective order or you will file a protective order when any additional specially prepared interrogatories or requests for admissions are served (if the facts and issues are not complex).

Be prepared to file the protective order asking the court for limiting the discovery and/or more time to respond. It is important that you let the court know that opposing counsel is using discovery as a weapon. If you anticipate future discovery problems with opposing counsel, you may want to request that the court appoint a discovery referee.

After settlement discussions have failed, you are soon served with a slew of discovery including a second set of specially prepared interrogatories and a second set of requests for admissions; both exceed the 35 total limits allowed by the Code of Civil Procedure and both with a "Declaration of Necessity." It is your strong belief that the purpose of the newly propounded discovery is to force you back to the negotiating table.

This is a common tactic and possibly a justifiable one if trial is approaching. However, instead of responding, take a closer look if the propounding party can justify the "Declaration of Necessity." Is the case complex? Would a deposition or subpoena of a third party be more time efficient or cost effective? And, why should your client pay the additional litigation cost because the opposition failed to take into account the limitations in C.C.P. §§ 2030.030(a)(1) and 2033.030(a)(1) in developing their discovery plan?

Send a meet and confer letter to opposing counsel objecting to all specially prepared interrogatories and requests for admissions that exceed 35 because:

1. The facts and issues of the case are not complex;
2. All the other discovery that already has been done;
3. Other discovery devices (i.e., depositions, third party subpoenas, expert witnesses’ depositions) would be more efficient and/or cost effective; and/or
4. The Code of Civil Procedure limits discovery to 35 specially prepared interrogatories and requests for admissions and the fact that opposing counsel has used them all is not your problem. The opposing party needs to take responsibility for their discovery plan.

If you go to court on a motion for protective order, be careful in accusing the opposition of abusing discovery because you wouldn’t settle. The accusation may hurt you more than help you.  Let the court come to that conclusion on its own.

Two years into a complex case you are served with Specially Prepared Interrogatories Set #5-- Interrogatories 152-185, Requests for Admissions Set #3–Requests #57-91, Form Interrogatories Set #4 with 17.1 checked and Requests for Production of Documents, Set #5–Requests 180-222.

This is a frequent problem in complex cases that last years. The propounding party has either forgotten what they have already served or new attorneys are working on the file and haven’t taken the time to review previous discovery that was propounded. Nonetheless, the only way to handle this is for you to research what discovery you have responded to and how the present propounded discovery is duplicative. Once you have that information, send a meet and confer letter stating:

1. Which interrogatory, request for admission and/or request for documents are duplicative or a subset of which interrogatory, request for admission and/or request for documents that have already been propounded;
2. Suggest what other discovery devices would be more efficient or cost effective (i.e., depositions, expert testimony, site inspections, subpoenas of third party records . . .); and/or
3. Advise the propounding party that if they are not withdrawn you will seek a protective order and/or request a discovery referee to oversee the remaining discovery in the matter in order to get it to trial.

Even though you can object stating that the discovery is duplicative, this is the type of case that you want to be proactive and go to court so you won't spiral into Discovery Hell.

REMEMBER: If a party does not withdraw their excessive specially prepared interrogatories or requests for admissions, you must file a protective order as an objection is not sufficient if a declaration of necessity is attached. See C.C.P. §§ 2030.040(b) and 2033.040(b).

The Attorney General’s Opening Brief completely avoids the fact that signed or recorded witness statements are evidence, and can be used in depositions or at trial. This a critical omission because the entirety of the Attorney General’s position must presuppose that verbatim witness statements can be hidden from the parties and the witnesses because the statements are “not evidence”.  If the Attorney General would just concede the obvious, i.e., that signed and recorded verbatim witness statements “are evidence”, then they must be discoverable. “The admissibility of a document bears on its discoverability in the sense that if the document is admissible, it necessarily is discoverable. (Norton v. Superior Court (1994) 24 Cal.App.4th 1750 (pdf), 1760-1761, 30 Cal.Rptr.2d 217)” From this logical conundrum, the Attorney General’s assertion of “absolute”, or even “qualified” attorney work product for verbatim independent witness’ statements, cannot escape.

Petitioner emphasizes that the Court of Appeal’s majority opinion held that “Signed or recorded witness statements are classic evidentiary material.”

The majority in Coito v. Superior Court (2010) 182 Cal.App.4th 758, 768-769, recognized that “witness statements are classic evidentiary material. They can be admitted at trial as prior inconsistent statements (Evid. Code, § 1235 (pdf)), prior consistent statements (id. § 1236 (pdf)), or past recollections recorded (id., § 1237 (pdf)). Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to [p. 769 of text] prepare for their use.”

Petitioner also points out that “The Court of Appeal’s concurring and dissenting opinion held that signed or recorded witness statements have the characteristics of evidentiary matter.”

The concurring and dissenting opinion agreed that signed and recorded statements also have the “characteristics of evidentiary matter (i.e., a witness statement may be admissible to refresh recollection, or to impeach a witness, or if the witness, or if the witness becomes unavailable to testify).” (Coito, supra, 182 Cal.App.4th at p. 788)

Finally, Petitioner argues that “The complete withholding, or even delayed production of evidentiary witness statements are unjustifiable.”

While it may be an obvious proposition that the suppression of testimony just because one attorney “got there first” is unacceptable because of the adverse consequences for the truth-seeking function of our adversarial system (Coito, p. 769.), it is also significant that delaying production of witness statements at the unilateral election of the opposing counsel is antithetical to all of the purposes of civil discovery.

Discovery should be obtained at the earliest possible state in the proceedings since it plays a significant role in the preparation for depositions and trial, but also in the resolution of cases. An attorney cannot be allowed to delay production of testimony until either the deposition or trial, by invoking the “shield” of either “absolute” or “qualified” attorney work product earlier in the case and then using the testimony as “a sword” whenever it suits the interests of one party. In this case, the Attorney General has provided no justification fo r that notion of civil litigation.

Does Petitioner’s arguments make sense or are her arguments leading the Supreme Court down a slippery slope of the erosion of the attorney work product protection?

Over the years friends and colleagues have called me up asking for a quick answer on a discovery question that they have. The phone call usually went like this “I want to get plaintiff’s phone records, how do I do that?” or “I forgot to disclose experts, am I too late?” or “They want to send my client to a psychiatrist. Can I object?” I know the answers to these questions which are “Yes,” “No” and “Yes.” However, to get the statutory authority, I rely on the charts I have prepared and published over the last 18 years. The California Civil Discovery--Charts for the Everyday Litigator " (pdf)  was recently updated and now available to you for download. 

Hope it helps!!

Attorneys easily spew out the objection “the information you are seeking is not relevant to the subject matter of the litigation” as easily as they say “Good morning.”  If you are the propounding party your reaction is probably to be to yell out “It is too relevant!” because it doesn’t even appear that the responding party actually thought it through before spewing out the objection.   But what exactly is relevancy?  It seems to be a nebulous term that invokes images of catching clouds with your hands or like Supreme Court Justice Potter Stewart’s definition of pornography “I know it when I see it”?

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.             

However, this definition isn’t exactly helpful either.  Unfortunately, there is no bright line test to determine what is relevant.  Instead you must rely on numerous cases that bounce you from flipper to flipper like a pinball to get a sense as to what relevancy means for Discovery. 

The overriding philosophy of the Discovery Act is that discovery should be liberally construed in order to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf) at 391.  Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:71 citing Colonial Life & Accident Insurance Co. v. Superior Court (1982) 31 C3d 785,790 

“Relevant to the subject matter” is broader than relevancy to the issues which determines admissibility of evidence at trial. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:66 citing Bridgestone-Firestone Inc. v. Sup. Ct. (1992) 7 CA4th 1384 (pdf),1392  In fact, admissibility at trial is not the test.  See Davies v. Superior Court (1984) 36 C3d 291 (pdf),301.  You may discover heresay (Smith v. Superior Court (1961) 189 CA2d 6 (pdf),11 or inadmissible opinions and conclusions (Greyhound Corp. v. Superior Court, Supra at 391).   You may also discover irrelevant matters so long as their revelation may lead to the discovery of admissible evidence. Dodge, Warren & Peters Insurance Services, Inc. v. Riley (2003) 105 CA4th 1414 (pdf).  Remember that you are not limited to the pleadings as the pleadings can always be amended when you discover new facts or causes of action. Anti-Defamation League of B’nai B’rith v. Superior Court (1998) 67 CA4th 1072 (pdf).  The phrase “subject matter involved in the pending action has been defined to include not only the acts that constitute the cause of action, but also circumstances and physical facts which the action arises, including the property, contract, or other things in dispute.   See CEB California Civil Discovery Practice (2010) 4^th Ed 1:37 citing Darbee v. Superior Court (1962) 208 CA 2d 680 (pdf),688.  However, Weil and Brown said it best: “the scope of permissible discovery is one of reason, logic and common sense.”See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:67 

Hint: If you can articulate why you think this information might lead to the discovery of admissible evidence then you should be able to discover it. 

So now what do you do? The answer is another discovery device. In Carter v. Superior Court (1990) 218 CA3d 994 (pdf) the court held even though a party had missed the deadline for compelling inspection of documents under C.C.P. Section 2031 it did not bar him from requesting the same documents be brought to a deposition. Therefore, you can serve any of the following discovery devices and pretty much get the same result:

• Interrogatories–Use requests for admissions coupled with Form Interrogatory 17.1 and request for documents.
• Request for Production of Documents –Use deposition notices with a document requests, corporate deposition notices with a document request and/or third party subpoena for deposition with documents.
• Request for Admissions –use special interrogatories or deposition notices

One thing you can’t do is reserve the same interrogatories, requests for documents and/or requests for admissions and “reset the clock.”  Sexton at 1408 citing Professional Colleges, Magna Institute, Inc. v. Sup. Ct. (1989) 207 CA 3d 490.

Your other alternative is let the objections stand.  Then at trial serve a motion in limine excluding all evidence that was not produced in discovery. If a party does not cough up the info during discovery they can’t use it at trial.

These are a few suggestions on the dreaded draconian 45-Day Rule. Does anyone have any more?

Not only are most objections garbage, we tend to recycle our garbage objections from one case to the next. Sometimes, we pick up other attorneys’ garbage objections and contribute to more litter. This is done over and over again without even thinking what it is doing to the environment of the litigation.

Garbage objections fuel the ire of opposing counsel. The “meet and confer” letter that is soon to follow is usually full of hostility and threats. Any amicable relationship you had hoped for with opposing counsel is on the cusp of being destroyed. More important, you are now costing your client more money in attorneys’ fees and possibly in settlement.  So before you throw out the trash, look at these common objections and why they will be overruled:

“Ambiguous”      Valid objection only if the question is totally unintelligible. A party has a duty to answer if “the nature of the information sought is apparent.” Deyo v. Kilbourne (1978) 84 CA 3d 771(pdf), 783. Rather than sustaining the objection, the judge may ask the propounding to rephrase the question or request. See Cembrook v. Superior Court (1961) 56 C2d 423 (pdf), 430   Hint: instead of objecting state what you think the interrogatory is asking then answer.

“Hearsay”     Discoverable as long as it may lead to admissible evidence.  C.C.P. §2017.010 (pdf),  Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf), 391  Hint:  Don't confuse rules of evidence with rules for discovery.  Discovery rules are more liberal.

“Irrelevant”     The interrogatory must be relevant to the subject matter of the litigation. Deaile v. General Tel. Co. (1974) 40 CA3d 841 (pdf), 850.  Hint: fishing trips are permissible Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf), 383-385, just be prepared to state what you are fishing for.

“Overbroad”     Valid only if the question calls for an undue burden such as “shotgun” interrogatories” as they are too general (i.e., “Please state the identity of each and every person who has knowledge of the relevant facts of the litigation.”)  See CEB, California Civil Discovery Practice (4th ed. 2009) §7.85

“Burdensome and Oppressive"  The showing required to sustain this objection is that the intent of  the party was to create an unreasonable burden, or that burden created does not weigh equally with what requesting party is trying to obtain from it. See Mead Reinsurance Co. v. Superior Court (1986) CA3d 313 (pdf). In the Mead case, the objecting party showed that it would require the review of over 13,000 claims files requiring five claims adjusters working full time for six weeks.

"Information equally available to asking party"     The only time this objection works is if a party has to go get public records [Bunnell v. Sup. Ct. (1967) CA2d 720 (pdf), 723-724] or interview independent witnesses [Holguin v. Sup Ct. (1972) 22 CA3d 812 (pdf), 821] in order to answer the questions.

Referencing Documents:    The “see complaint” type  answer is not proper.  If the question requires reference to some other document, then the document should be identified and its contents summarized so that the answer by itself is fully responsive to the interrogatory. Weil and Brown Civil Procedure Before Trial (TRG 2009) §8:1049 citing Deyo v. Kilbourne (1978) 84 CA 3d 771(pdf). The exception to this is C.C.P. §2030.230 (pdf) where the code allows the answering party to allow the interrogating party to inspect the files and records. However, the answering party must show: (1) a compilation, abstract, audit or summary of its records is necessary in order to answer the interrogatory; and (2) no such compilation etc. exists; and (3) the burden or expense of preparing or making it would be substantially the same for the asking party as it would for the answering party.

Though the statutory authorities used above are for interrogatories, there is corresponding statutory authority for requests for production of documents and requests for admissions.  The case law can be applied for other discovery devices.

"Vague, ambiguous, overbroad, burdensome, oppressive, not likely to lead to admissible evidence and the information is equally accessible to the defendant.  Plaintiff further objects on the grounds of attorney client privilege and the work product doctrine.  See Nacht & Lewis Architect, Inc. v. Superior Court (1996) 47 CA4th 214 (pdf). 

Does this sound all too familiar?  The frustration level is high with attorneys as it will take at a minimum 121 days to get basic information if you have to file a motion to compel further responses.  Meanwhile the court is scheduling a trial date and your discovery train hasn't even left the station. 

The purpose of discovery is to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary.  Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2009) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961).  Unfortunately, now it appears the call of the wild is “Let the games begin” as the dreaded process unfolds. 

(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.

The code requires that a party must make a reasonable and good faith effort to obtain the information. Regency Health Services, Inc. v. Superior Court (1998) 64 CA4th1496 (pdf)“A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA3d 771,782. This includes a party’s lawyer Smith v. Sup. Ct (Alfred) (1961) 189 CA 2d 6, agents or employees Gordon v. Sup. Ct. (U.Z.MFG.Co) (1984) 161 CA 3d 15,167-168, family members Jones v. Superior Court (Benny) (1981) 119 CA 3d 534, 552 and experts who have been retained by a party and designated as a trial witness.  Sigerseth v. Superior Court(1972) 23 CA 3d 427,433.   See Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2009) ¶ 8:1051-1060  This means that you can't just pawn off the responses to your client or spend an hour and dictate off the top of your head and then answer "inability to respond."  See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390   The statute and the case law make it very clear that a party and the attorney must be proactive in obtaining the information to respond to the interrogatories.  

Discovery motions are by no means the Courts' favorite motions to hear and, unfortunately, they have seen the above interrogatory response too many times.  So don't be surprised if you get sanctioned for providing false or evasive answers.  See CCP §2030.300 

 Next:  Are Your Responses Garbage?

Official Form Interrogatories--General (Disc-001) 

For years the Courts had found that the Form Interrogatories were objection proof as to form with minor exceptions.  These minor exceptions usually involved case specific issues such as  checking the box with the definition of "INCIDENT" versus creating your own definition for "INCIDENT" and cases which involve complex business transactions.   

"Have you or ANYONE ACTING ON YOUR BEHALF interviewed any individual concerning the INCIDENT? (If so, identify them.)" 

The Third District Court of Appeal found that Form Interrogatory 12.2 was objectionable on the grounds of work product stating:

[c]ompelled production of a list of potential witnesses interviewed by opposing counsel would necessarily reflect counsel's evaluation of the case by revealing which witnesses or persons who claimed knowledge of the incident (already identified by defendants' response to interrogatory No. 12.1) counsel deemed important enough to interview.

For the last 14 years, litigants have objected to Form Interrogatory 12.2 as well as other Form Interrogatories in 12.0 series based on Nacht & Lewis.  However, on March 4, 2010, the Fifth District Court of Appeal ruled in the case of Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf) that Form Interrogatory No. 12.3 which states: 

“Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from any individual concerning the INCIDENT? If so, for each statement state..." 

was not protected by the work product privilege.  The court stated at pages 768,769:

... witness statements are classic evidentiary material. They can be admitted at trial as prior inconsistent statements (Evid. Code, § 1235), prior consistent statements (id., § 1236), or past recollections recorded (id., § 1237). Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use.   Moreover, a witness statement could contain information favorable to the party denied access, who otherwise could use the statement to refresh the witness’s recollection, impeach the witness’s testimony, or rehabilitate the witness after cross-examination. These impacts on the quest for truth simply are not justified by the policy of encouraging lawyers to prepare their cases for trial or the policy of protecting the diligent attorney from others who would take advantage of his or her industry. (§ 2018.020.) “The purpose of the [work product] doctrine is to prevent incompetent counsel from taking unfair advantage of his adversary’s efforts in preparation for trial, not to suppress relevant testimony which happened to have been obtained by the opposition.” (Jasper Construction, Inc. v. Foothill Junior College Dist. (1979) 91 Cal.App.3d 1, 16 [153 Cal.Rptr. 767].)

With these two cases in conflict with one another, the California Supreme Court has granted review.  In the meantime, Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf) is not citable pursuant to California Rules of Court.   

I believe that the California Supreme Court will uphold Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf).   First of all, the basic purpose of the discovery is to take the "game element" out of trial preparation.  See Weil and Brown Civil Procedure Before Trial (TRG 2009) ¶8:1 citing Greyhound Corp. v. Superior Court (1961) 56C2d 355, 376; Emerson Elec. Co. v. Superior Court(1997) 16 C4th 1101, 1107.  Second, knowing whether or not there are witness statements is not protected under a document production as you would have to disclose the information in a privilege log, so why should it be different for interrogatories.  Third, California has a work product statute--C.C.P.  §2018.010 et seq.-- which codifies California law which makes witnesses statements qualified work product.  And, finally, C.C.P §2018.060 allows allows any party to request an in camera review of the documents, which the defendants in Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf). did not request.    Do you agree?