(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.  See C.C.P §2031.240(b)

This document is more commonly known as the “privilege log”.  Although C.C.P. §2031.240(b) does specifically not state the kind of identification that is required, it is expected that for each document withheld that the privilege log state (a) the nature of the document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or document control umber, if any), and (f) the privilege claimed.  See California Civil Discovery Practice (CEB 4th Ed. 2011)  §3.192 citing Wells Fargo Bank v. Superior Court (2000) 22 C4th 201 (pdf) and §33.201 for a sample of a privilege log.

Except in some limited situations, California court’s do not have the right to do an in camera inspection of privileged documents to determine whether or not the document is actually privileged. See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:192.1 citing Southern California Gas Co. v. Public Utilities Communication (1990) 50 C3d 31, 45 (pdf). Therefore, it is important that the privilege log be sufficiently specific enough to allow the court to determine whether the document is or is not (in) fact privileged.”  Wellpoint Health Networks, Inc. v. Sup Ct. (1997) 59 CA4th 110, 130 (pdf). If the log is not sufficiently specific, the trial court may order the objecting party to prepare a new log containing more information about the nature of the document in question.  Kaiser Foundation Hospital v. Superior Court (1998) 66 CA4th 1217, 1228 (pdf).  The court also may conduct a preliminary fact hearing on whether the privilege exists.  See Ev. C. §402. 

So, when you are asserting objections to document requests remember:

You Can’t Do General Objections.  Many attorneys use a preamble before their responses called “General Objections”.  This is improper.  You don’t get to list every conceivable objection and have blanket coverage. C.C.P. §2031.210–240 makes it clear how you are to respond and “General Objections” is not one of them.  See Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 (pdf).

You Can’t Do “Boiler-plate” aka Garbage Objections, as they are an indication of bad faith and you can be sanctioned.  See Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 (pdf).

You Can’t Object to a Document that does not exist.  When counsel for a party objects to production of documents under C.C.P. §2031.240(b), counsel implies that the documents in question exist and have been reviewed.  Objection made to requests for production of document that do not exist or not in the attorney or party’s possession violate an attorney’s ethical duty under Bus & PC §6068(d) to act truthfully and, therefore, constitutes bad faith.  See Bihun v. AT&T Info. Sys (1993) 13 CA4th 976, 991 (pdf) (reversed on other grounds) and CEB §8:10.  Thus, it is important that you review all responsive documents before you respond.     

You Must Provide a Specific factual description of the documents or you run the risk that your objections will be deemed waived.  The purpose of the privilege log in discovery proceedings is to provide specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production, and is intended to permit a judicial evaluation of the claim of privilege. Best Products, Inc. v. Superior Court (2004) 119 CA4th 1181 (pdf). 

The burden is on the party claiming a privilege to establish whatever preliminary facts are essential to the claim if a motion to compel is filed.  Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:192 see Ev. C. §§402, 405.

IF YOU CANNOT UNDERSTAND MY ARGUMENT AND DECLARE, “it’s Greek to me, you are quoting Shakespeare.  If you claim to be more sinned against than sinning, you are quoting Shakespeare.  If you act more in sorrow than in anger, if your wish is father to the thought, if you lost property has vanished into thin air, you are quoting Shakespeare.  If you have ever refused to budge an inch or suffered from green-eyed jealousy, if you have played fast and loose, if you have been tongue-tied-a tower of strength—hoodwinked or in a pickle, if you have knitted your brows—made a virtue necessitated, insisted on fair play, slept not one wink—stood on ceremony—danced attendance on your lord and mater—laughed yourself into stitches, had short shrift—cold comfort, too much of a good thing, if you have seen better days, or lived in a fools paradise, why, be that as it may, the more fool you, for it is a foregone conclusion that you are as good luck would have it, quoting Shakespeare…

It brought a smile to my face when I read the passage as I realized how much of Shakespeare is in our everyday vernacular. There to I realized how many distinctive quotes there that I use over and over again as a Discovery Referee. Here are a few that you should keep handy to sprinkle into your arguments during your discovery battles. 

PHILOSOPHY OF 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 2011) ¶8:1, citing Greyhound Corp. v. Sup. Ct. (1961) 56 C2d 355 (pdf). 

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 2011) ¶8:71 citing Colonial Life & Accident Insurance Co. v. Sup. Ct. (1982) 31 C3d 785, 790 (pdf). 

“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 2011) ¶8:66 citing Bridgestone-Firestone Inc. v. Sup. Ct. (1992) 7 CA4th 1384, 1392 (pdf). 

Admissibility at trial is not the test for relevancy.  See Davies v. Sup. Ct. (1984) 36 C3d 291, 301 (pdf).  

There is no priority in discovery. C.C.P. §2019.210 (pdf).

Fishing trips are permissible Greyhound Corp. v. Sup. Ct. (1961) 56 C2d 355, 383-385, just be prepared to state what you are fishing for.

The scope of permissible discovery is one of reason, logic and common sense.  Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶ 8:67 citing Lipton v. Sup. Ct. (1996) 48 CA4th 1499, 1611 (pdf)

DISCOVERY PROPOUNDED

The Fourth District Court of Appeal defined “reasonable particularity” in requests for production of documents to mean that they are “reasonably particularized from the standpoint of the party on whom the demand is made.”  Calcor Space Facility, Inc. v. Sup. Ct. (1997) 53 CA4th 216, 222 (pdf).

Any party may obtain discovery ... by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties. C.C.P. §2033.010 (pdf).

 RESPONDING TO DISCOVERY

The code requires that a party must make a reasonable and good faith effort to obtain the information. Regency Health Services, Inc. v. Sup. Ct. (1998) 64 CA4th 1496 (pdf) “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA 3d 771, 782 (pdf). This includes a party’s lawyer Smith v. Sup. Ct. (1961) 189 CA2d 6 (pdf), agents or employees Gordon v. Superior Court (1984) 161 CA 3d 151, 167-168 (pdf), family members Jones v. Sup. Ct. (1981) 119 CA 3d 534, 552 (pdf) and experts.  Sigerseth v. Sup. Ct. (1972) 23 CA 3d 427, 433 (pdf).   See Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2009) ¶ 8:1051-1060 

OBJECTING TO DISCOVERY

“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. Sup. Ct. (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.

“Right of Privacy” “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”  Article I, Section 1 of the California Constitution. 

"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, 723-724 (pdf) or interview independent witnesses Holguin v. Sup Ct. (1972) 22 CA3d 812, 821 (pdf) in order to answer the questions.

Referencing Documents:  It is improper to answer “See Complaint” or “See deposition”. 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 2011) §8:1049 citing Deyo v. Kilbourne (1978) 84 CA 3d 771. The exception to this is C.C.P. §2030.230 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.

MOTIONS

Motions to compel further responses to interrogatories, requests for productions of documents and requests for admissions require that the motion be filed within 45 days. CCP §§ 2030.300(c), 2031.310(c) and 2032.290(c).   Delaying the filing of the motion waives a party’s right to compel further responses. The case of Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681, 685 (pdf) takes the position that the court lacks jurisdiction to order further responses after time has expired. The Second District Court of Appeal upheld this rationale in Sexton v. Superior Court (1987) 58 Cal. App. 4th 1403, 1410 (pdf).

SANCTIONS

Discovery sanctions are not reported to the State Bar. See Bus. & Prof. Code. §6068(o)(3) (pdf) .

Discovery sanctions are not a windfall.  They are to compensate for costs and fees incurred by the party in enforcing discovery or defending a meritless motion.  See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2011) ¶8:1213 citing Caryl Richards, Inc. v. Sup. Ct. (1961) CA2d 300, 303 (pdf).  

In imposing issue and evidence sanctions, the court must tailor the sanction to fit the conduct. McArthur v. Bockman (1989) 208 Cal. App. 3d 1076, 1080-1081 The aggrieved party cannot receive more by way of a sanction then it would have received if it had received the discovery.  Rail Services of America v. State Comp. Insurance Fund (2003) 110 Cal App. 4th 323, 332 (pdf).  

 The “trial court is not required to make findings at all” in granting any discovery sanctions, including terminating sanctions.  See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2011) ¶8:1241.5 citing Ghanooni v. Super Shuttle of Los Angeles (1993) 20 CA 4th 256, 261 (pdf). 

BE FORWARNED OF A COURT’S IRE

“Twenty-three years ago, the Legislature enacted the Civil Discovery Act of 1986 . . . a comprehensive revision of pretrial discovery statutes, the central precept of which is that civil discovery be essentially self-executing.  More than 10 years ago, Townsend v. Superior Court (1998) 61 CA 4th 1431 (pdf) lamented the all too often interjection of "ego and emotions of counsel and client[s]" into discovery disputes, warning that "[l]ike Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement."  (Townsend at 1436.) Townsend counseled that the "informal resolution" of discovery disputes "entails something more than bickering with [opposing counsel]." (Townsend at 1439) Rather, the statute "requires that there be a serious effort at negotiation and informal resolution." (Townsend at 1438.)” Clement v. Alegre (2009) 177 CA4th 1277 (pdf).

DO YOU HAVE ANY FAVORITE QUOTES YOU WOULD LIKE TO SHARE?

OBJECTIONS TO DEPOSITION QUESTIONS

Objections to the form of questions are waived if not raised at the deposition. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:721 (citing C.C.P. §2025.460 (pdf)(b)). 

Instructing witness not to answer is improper unless objecting on grounds of privilege. CCP §2025.460 (pdf); Stewart v. Colonial Western Agency, Inc.(2001) 87 CA4th 1006 (pdf), 10015.

Speaking objections which counsel explains his rationale for the objection is improper as it is usually used as a tactic to give the deponent a heads up that the area of questioning is dangerous and how he should answer.  This is a form of "coaching" the witness and a protective order may need to be sought.  See CEB, California Civil Discovery Practice (4th ed. 2010) §6:100. 

     PROPER OBJECTIONS:

Calls for Contention:  Rifkind v. Superior Court (1994) 22 CA 4th 1255.

Irrelevant to the Subject matter: C.C.P. §2017.010 (pdf).

Calls for Legal Reasoning:   Sav-On Drugs v. Sup. Ct.(1975) 15 C3d 1 (pdf).

Calls for Narration or Lengthy Explanation

Calls for Speculation or Conjecture

Compound

Harassing and oppressive

Incomplete Hypothetical

Leading (if not an adverse witness)

Unintelligible

Vague and Ambiguous:  Deyo v. Kilbourne(1978) 84 CA 3d 771(pdf).

IMPROPER OBJECTIONS

Answer is known to propounding party:  Alpine Mut. Water Co. v. Sup. Ct.(1968) 259 CA2d 45 (pdf),54.

Argumentative:  C.C.P. §2017.010 (pdf).

Asked and answered:  Coy v. Sup. Ct. (1962) 58 C2d 210 (pdf),218.

Assumes facts not in evidence:  West Pico Furniture v. Sup. Ct. (1961) 56 C2d 407 (pdf),421.

Calls for conclusion:  C.C.P. §2017.010.

Insufficient foundation:  C.C.P. §2017.010.

Hearsay:  C.C.P. §2017.010.

Irrelevant to the issues:  C.C.P. §2017.010.

Calls for a narrative:  C.C.P. §2017.010.

Calls for an opinion:   C.C.P. §2017.010.

Oppressive:  Coy v. Sup. Ct. (1962) 58 C2d 210,218.

Lists of the objections can be found in Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial(TRG 2010) ¶8:721 et seq. and CEB, California Civil Discovery Practice (4th ed. 2010) §6.98.

OBJECTIONS ON THE CLAIM OF PRIVILEGE

You must state the privilege or it will be deemed waived.  See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:725 citing CCP§2025.460 (pdf)(a) and  International Insurance Co. v. Montrose Chemical Corp. of California(1991) 231 CA3d 1367 (pdf),1373.

ABSOLUTE PRIVILEGES

Attorney-Client:   Evid.Code §§950-962.

Confidential Marital Communications:   Evid.Code §§980- 987.

Clergy-Penitent:  Evid.Code §§1030-1034.

Defendant in Criminal Case:  Evid.Code §930.

Domestic Violence Counselor-Victim:  Evid.Code §§1037-1037.8.

Human Trafficking Caseworker-Victim:  Evid.Code §§1038-1038.2.

Official Information and Identity of Informer:  Evid.Code §§1040-1047.

Physician-Patient:  Evid.Code §§990-1007.

Political Vote:  Evid.Code §§1050.

Psychotherapist-Patient:  Evid.Code §§1010-1027.

Self Incrimination:  Evid.Code §§940.

Sexual Assault Counselor-Victim:  Evid.Code §§1035-1036.2.

Testify Against Spouse:  Evid.Code §§970-973.

QUALIFIED PROTECTIONS 

Disclosure may be compelled if the Court finds that the interests of justice in obtaining the information outweighs the protection.  See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:110.5 citing Gonzalez v. Superior Court (1995) 33 CA4th 1539, 1548.

Invasion of Privacy:  California Constitution Article 1 (pdf), Section 1.

Taxpayers Privilege  Rev. & Tax C. §19542 (pdf)See Schnabel v. Superior Court (1993) 5 C4th 704 and Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:112 - 124.6.

Trade Secret:  C.C.P. §2019.210 (pdf) and Evid.Code 1160-1063  Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:129.

Work Product:  C.C.P. §2018.030 (pdf).

Have you ever been in a middle of a deposition and found yourself saying "OBJECTION!! There’s this case that says . . . " but you can’t quite remember what the name was, where you saw it or even where you might find it?  And, yet, it is right on point. Well, the following is a list of cases and statutes for depositions that you should keep in the back of your legal pad as they may come in handy.

Special Interrogatory No. 1 requested a description of "all economic damages you have sustained . . . " Plaintiffs objected on the grounds of "vague and ambiguous" because defendant hadn’t specifically referred to Civil Code Section 1431.2(b)(1), which defines "economic damages."

Special Interrogatory No. 2 asked "Please state the amount of such damages identified in Interrogatory No. 1."  Plaintiffs objected on the grounds that the special interrogatory was not complete in itself and because he has 30 days to answer No. 1 so he should have another 30 days more to answer Interrogatory No. 2.             

Nine months after the Special Interrogatories were propounded, the Discovery Referee, found that the plaintiffs had "deliberately misconstrued the question" as to economic damages and determined that "the objections and each of them to be unreasonable, evasive, lacking in legal merit and without justification". Clement at 1284  The Referee recommended that the motion to compel further responses be granted and that plaintiffs were to reimburse defendant $4,950.00 for legal fees, $40 for filing the motions to compel and $1,642.50 for defendants portion of the Discovery Referee’s fees for a total sanction of $6,632.50. The trial court agreed with the recommendation. 

The First District Court of Appeal had no sympathy for plaintiffs appeal stating in its opening discussion:         

Twenty-three years ago, the Legislature enacted the Civil Discovery Act of 1986 . . .  a comprehensive revision of pretrial discovery statutes, the central precept of which is that civil discovery be essentially self-executing.  More than 10 years ago, Townsend v. Superior Court(1998) 61 CA 4th 1431 (pdf) lamented the all too often interjection of "ego and emotions of counsel and client[s]" into discovery disputes, warning that "[l]ike Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement."  (Townsend at 1436.) Townsend counseled that the "informal resolution" of discovery disputes "entails something more than bickering with [opposing counsel]." (Townsend at 1439) Rather, the statute "requires that there be a serious effort at negotiation and informal resolution." (Townsend. 1438.)

This case illustrates once again the truth of Townsend's observations, as well as highlighting the lengths to which some counsel and clients will go to avoid providing discovery(in this case by responding to straightforward interrogatories with nit-picking and meritless objections), resulting in delaying proceedings, impeding the self-executing operation of discovery, and wasting the time of the court, the discovery referee, the opposing party, and his counsel.  [Emphasis added]

The First District Court of Appeal affirmed the Discovery Referee’s order awarding sanctions and gave the following admonishment:

...we feel compelled to observe that resort to the courts easily could have been avoided here had both parties actually taken to heart Justice Stone’s admonitions in Townsend ‘the statute requires that there be a serious effort at negotiation and informal resolution (Townsend at 1438) Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that [a]rgument is not the same as informal resolution’ (id at p. 14370; and that 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." (Townsend at 1439) [Emphasis added]

In the year since Clement v. Alegre was published it has been cited in two unpublished Appellate Court decisions, six Code of Civil Procedure annotations, seven different treatises and three appellate briefs.  This is one case you should keep in your arsenal when you are requesting sanctions.       

I thank Mike Liberty for forwarding me this case. Please forward me any other discovery cases or issues that you would like to be discussed.

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. 

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.

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?