“ 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).

As I talked about in my first blog "Why Aren't You Using Requests for Admissions", the legislative intent behind requests for admissions is to urge parties to take them seriously. One of the real kickers of this statute is the cost of proof sanctions set out in C.C.P. §2033.420 (pdf). If the responding party is found to have unreasonably denied a request for admission, that party may be ordered to pay the costs and fees incurred by the requesting party to prove the issue at trial. See Garcia v. Hyster Co. (1994) 28 Cal. App. 4th 724, 736 (pdf): Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618, 635-638 (pdf). The court is required to impose the sanction. Again, the word shall is in the statute.

That is all good and well but, really, do you know how to win this motion?  You have heard the horror stories that despite the mandatory language, judges still seem to find a way not to grant this motion.  In fact there is a plethora of case law that carves out exceptions to the rule. Such as (1) when a party has a good faith basis for believing its position to be correct C.C.P. § 2033.420(b)(3), Denver D. Darling, Inc. v. Controlled Environments Construction, Inc. (2001) 89 CA4th 1221, 1239(pdf); (2) the requesting did not have a “direct relationship to one of the central issues in the case” Laabs v. City of Victorville (2008) 163 CA4th 1242, 1276 (pdf); (3) the case settled before had to prove the matters at trial Wagy v Brown (1994) 24 CA 4th 1 (pdf); and (4) responding party either admitted before trial or during trial. Stull v. Sparrow (2001) 92 CA 4th 860 (pdf); Wagy v. Brown (1994), supra. 

They way to win this motion is to set it up from the beginning.  Burlingame attorney Simon Mazzola has been successful in using a preamble in his requests for admissions stating:

Pursuant to Code of Civil Procedure Section 2033.010 (pdf) et seq., [MY CLIENT] hereby requests that [YOUR CLIENT] admit or deny under oath the following Requests for Admissions separately and fully in writing within THIRTY (30) DAYS after service hereof.  If [YOUR CLIENT] cannot admit or deny a request for admission, he must explain why. 

If a Request for Admission cannot be fully answered, answer it to the extent possible.  You are required to make a good faith effort to obtain the information from sources reasonably available to you.  The responses, as required by C.C.P. §2033.220 (pdf) et seq. “must be, as complete and straightforward, as the information available reasonably permits’ . . . and shall admit so much of the matter as is true . . . or as reasonably and clearly qualified by the responding party.”  Weil and Brown, Civil Procedure Before Trial at 8:1323, citing C.C.P. § 2033.220(b)(1). A denial must be unequivocal. C.C.P. § CCP §2033.210 (pdf) et seq. See Holguin v. Sup Ct. (1972) 22 CA3d 812, 820 (pdf), 820 and Smith v. Circle P Ranch Co., Inc.  (1978)  87 C.A.3d 267, 275.

Under C.C.P. §2033.420 (pdf), if the responding party unreasonably denies a request for admission, that party may be ordered to pay the costs and attorneys’ fees incurred by the requesting party in proving that matter at trial after the request for admission was denied. Garcia v. Hyster Co. (1994) 28 Cal. App. 4th 724;  Wimberly v. Derby Cycle Corp. (1997) 56 C.A.4th 618, 635-638 (pdf) The imposition of this sanction is mandatory and the requesting party need not prevail at trial in order to be entitled to the sanction.  A party’s failure to undertake an investigation when the information was at hand does not support the party’s denial of admission and cost-of-proof sanctions were proper.  Smith v. Circle P Ranch Co., Inc.  (1978) 87 C.A.3d 267, 276.  The requesting party need only has to show that he is entitled to “reasonable expenses incurred . . . including reasonable attorneys’ fees” in proving matters unreasonably denied. C.C.P. § 2033.420.

The next step is the use the California Civil Jury Instructions [CCJI] to aid you in drafting your requests.  Remember to keep your RFA’s as simple as possible so there is no room for denial; thus avoiding objections on the ground of compound and conjunctive. Cal.  Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:1287.1

Don’t forget, if the responding party objects, you must file a motion to compel further responses.  See Weil and Brown, Cal.  Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1378; CEB, California Civil Discovery Practice (4th ed. 2010) §9:87 and Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618, 633.

The final step is filing the Motion to Recover Cost of Proof Sanctions.  This motion is brought at the conclusion of a trail or after a motion for summary judgment is granted.  Barnett v. Penske Truck Leasing Co., L.P. (2001) 90 CA4th 494, 498 (pdf).  There is no specification on when or how the motion for expenses of proof should be made.  See CEB, California Civil Discovery Practice (4th ed. 2010) §9:90 and C.C.P. §2033.420.  However, CEB, California Civil Discovery Practice (4th ed. 2010) does provide a form for the motion in Sections 9:123-9.124.

Good luck and let me know if you are successful. 

If opposing counsel refuses to take the motion off calendar, then you must respond to the motion by:

1. Serving a verified response that is in "substantial compliance" with CCP 2033.210 (pdf), 2033.220 (pdf) and 2033.230 (pdf) before the hearing on the motion; and
2. Provide a declaration to the court stating you have provided "substantially compliant " responses and that your failure to timely respond was due to “mistake, inadvertence, or excusable neglect”   See C.C.P. §2030.280(a)(1),(2).

In order to defeat this motion you need a strong declaration. Your declaration should contain:

• Date when the "substantially compliant" responses were served.
• Details of the “mistake, inadvertence, or excusable neglect” that caused your failure to not timely respond.
• All your meet and confer discussions with opposing counsel including your offer to pay monies.

If you do the above, the Motion to have Admissions be Deemed Admitted should be defeated as most judges would rather have the case decided on the merits. However, you will be sanctioned, but the question is how much. If you “fell on the sword” and admitted your “mistake, inadvertence, or excusable neglect” and you tried to meet in good faith to resolve the situation; the sanctions shouldn't be too ugly.

NEXT:   Cost of Proof Sanctions

A motion to compel answers to requests for admissions in the absence of a response may seem to be a wasted motion when you have the ability to bring a motion to have matters deemed admitted.   Yet, there are benefits in choosing this motion.  Bringing a motion to have matters deemed admitted throws down the gauntlet in the discovery process.  It is a “gotcha” motion. It also has legal malpractice overtones to it because someone screwed up by not getting the answers in on time and the ramifications for their client are harsh.  By bringing a Motion to Compel Answers to Requests for Admissions the propounding party gets the answers they want, keeps peace during the litigation and prevents the discovery process from escalating to an all out war.   However, this is a more lengthy process to get “substantially compliant” answers or evidence sanctions, so I don’t recommend it.   

Motion for Admissions be Deemed Admitted

This motion is quick and dirty.  If you have not received responses to your Requests for Admissions, then you can file the motion.  You don’t have to meet and confer.  There are no time limitations in bringing the motion.  And, most importantly, on the day of the hearing you either have (1) your requests for Admissions Deemed Admitted or (2) “substantially compliant” responses and sanctions in your pocket.   Unlike the other discovery statutes dealing with the failure to respond, C.C.P. §2030.280 (pdf)   has teeth!  It states:       

If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210 (pdf), 2033.220 (pdf), and 2033.230 (pdf).
(2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

In other words, the responding party has to give you the “substantially compliant” responses before the hearing as well as a declaration that the attorney and the attorney needs to fall on the sword and admit that it was the result of his “mistake, inadvertence or excusable neglect.” to defeat the motion.

It also states:

(b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010 (pdf)).

(c) The court shall make [an] order [that the genuineness of any documents and the trust of any matters specified in the requests be deemed admitted], unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is MANDATORY that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. [emphasis added]

In essence, the statute is saying that “substantially compliant” responses served prior to the hearing defeats a motion to have matters deemed admitted, and that it is MANDATORY that a monetary sanction be imposed against the responding party.  This is the only place in the Discovery Act that imposes MANDATORY sanctions.  However, no sanctions can be imposed for delay in responding to Requests for Admissions if answers were provided prior to the filing of the motion. 

Remember:  A “deemed admitted” order establishes by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained there.” Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1375.1 citing Wilcox v. Birtwhistle (1999) 21 C4th 973 (pdf), 979. 

Motion to Compel Further Responses

The procedural requirements for a Motion to Compel Further Responses is the same as for the other discovery devices.  However, there is one additional thing you need to be aware of – YOU NEED TO FILE THIS MOTION IF YOU WANT COST OF PROOF SANCTIONS!  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1378; CEB, California Civil Discovery Practice (4th ed. 2010) §9:87 and Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618 (pdf) , 633.    You need to bring this motion if any of the following are in the responses:

• Garbage objections
• Evasive responses
• Partial or qualified admissions
• Responding party states that they lack sufficient information to admit or deny
• Admitting part and failing to admit or deny the remainder of the request
• Denying part failing to admit or deny the remainder of the request

Another aspect to this motion is that you can’t compel a party to admit even if they made the same admission in a deposition or in interrogatories.  In the case of Hoguin v. Sup. Ct. (1972) 22 CA 3d 812 (pdf)  at page 815 the Second District Court of Appeal stated “We do not see, however, how any court can force a litigant to admit any particular fact if he is willing to risk a perjury prosecution or financial sanctions”

Good luck on your motions!!

Next: Responding to the Motions

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

(b) Each answer shall:

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(2) Deny so much of the matter involved in the request as is untrue.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.

The Discovery Act does not have such strident language for responding to interrogatories or an inspection demand.  This is because Requests for Admissions are not designed to uncover factual information.  Rather, their main purpose is to set issues at rest by compelling admission of things that cannot reasonably be controverted.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1256 citing Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 C3d 256,261.    So when responding to Requests for Admissions, remember to answer as follows:

Admit:     If any portion of the Request for Admission is true then you must admit to that portion of the request.  You are also allowed to have a hybrid response-- admit the part of the request that is true while denying another part.  See C.C.P. §2033.220(b)(1) and Valero v. Andrew Younquist Construction (2002) 103 CA 4th 1264, 1273 (pdf), 1273.  It is unclear whether or not you need to supply facts to make the request true.  However, it is a good idea if it puts the issue to rest.  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1232 - 1234.

Deny:     The responding party should not deny based solely on quibbles of with the wording of the request.  It may be improper to deny a Request for Admission outright if the request is at least partially true.  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1332.  A denial of all or any portion of the request must be unequivocal.  American Federation of State, County & Municipal Employees v. Metropolitan Water District of Southern California (2005) 126 CA4th, 247, 268 (pdf)  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1333-1334.1 give these helpful hints on what is unequivocal:

•  
  • Denial “on advice of counsel” is unequivocal “in spite of the rather weaseling qualification.” Hoguin v. Sup. Ct. (1972) 22 CA 3d 812, 820 (pdf)
  •  “As framed, denied” is also unequivocal. Smith v. Circle P Ranch Co., Inc. (1978) 87 CA3d, 267, 275 (pdf)   Denials following a “boilerplate” statement “without waiving these objections” was unequivocal. American Federation of State, County & Municipal Employees v. Metropolitan Water District of Southern California (2005) 126 CA4th, 247, 268.

Denials on “Information and Belief”:    This is not a proper objection as it is neither “straight     forward” and complete nor is it one of the options listed C.C.P. §2033.220. Also, this is in essence a response claiming “inability to admit or deny” for lack of sufficient information which has additional requirements as discussed above. 

Unlike interrogatories and or inspection demands, failure to properly respond to Request for Admissions in a timely matter can have great repercussions for you and your client.   

FAILURE TO RESPOND

All objections are waived. However, responding party may seek relief from the waiver similar to the way you can do it for interrogatories and inspection demands.  C.C.P. §2030.280(a) (pdf)

Motion for Admissions to be Deemed Admitted may be filed pursuant to C.C.P. §2030.280(b) (pdf).  The statute states “the court shall make this order” unless proposed responses” in substantial compliance with C.C.P. §2033.220 are filed before the hearing.  However, even though you filed delayed responses, you will be sanctioned because sanctions are MANDATORY pursuant to the code if your tardy responses came after the motion was filed. C.C.P. §2030.280(c) (pdf)

RESPOND BUT EITHER NOT TIMELY AND/OR NOT VERIFIED.  

Untimely or unsworn responses to request for admissions are tantamount to no response at all.  Zorro, Inc. Co. V. Great Pacific Securities Corp. (1977) 69 CA3d 90 7 (pdf)  

Motion for Admissions to be Deemed Admitted also can be brought. C.C.P. §2030.280(b) (pdf)

FAILURE TO MAKE A REASONABLE INVESTIGATION 

The propounding party may bring a Motion to Compel Further Responses  or bring a Motion for Admissions to be Deemed Admitted if the answering party has not made a reasonable inquiry or has access to “readily available” information that would enable to admit or deny the matter.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1348

Alternatively, costs may be awarded after trial against a party for failure to inform oneself before answering C.C.P. Section 2033.420(a).  The court may find there was no “good reason” for the failure to admit [Smith v. Circle P. Ranch Co., Inc. (1978) 87 CA3d 267–proof showing that responding party failed to investigate, when the means of obtaining the information were at hand, supports finding there were no “good reasons” for its denial; hence cost of proof sanctions were justified.] Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶ 8:1348

 FAILURE TO ADMIT

 If it is found that you have unreasonably denied a Request for Admission, you may be ordered to pay attorney’s fees and costs incurred by the propounding party in proving the matter.  C.C.P. §2033.420(b) (pdf).  This can occur either after a motion for summary judgment or trial.  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1404 citing Barnett v. Penske Truck Leasing (2001) 90 CA4th 494, 497-499 Remember, that the cost of proof sanction is designed to compensate for unnecessary having to prove matters that should have been admitted.  Thus, cost of proof sanctions can be awarded even if the propounding party lost the case.  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1405 citing Smith v. Circle P. Ranch Co., Inc. (1978) 87 CA3d 267, 276.

Also, denying a matter that should have been admitted in a sworn response might also subject you to a criminal prosecution for perjury.  See CEB Section 9:53 citing Hoguin v. Sup. Ct.  (1972) 22 CA 3d 812, 820. 

 Hint:  Take the time and make the effort in responding to requests for admissions as your answers may come back and bite you if you don’t.

C.C.P. §2033.060 (pdf)  sets forth the basic tenants as to how a request for admission must be drafted:        

• Each request must be numbered consecutively.  C.C.P. §2033.060(a)
• The first paragraph immediately shall state he identity of the party requesting the admissions, the set number, and the identity of the responding party.  C.C.P. §2033.060(b)
• Each request shall be “separately set forth.”  C.C.P. § 2033.060(c)
• Each request shall be “full and complete in and of itself” and there shall be no preface or instructions.  C.C.P. §2033.060(d)
• No carry over definitions.  C.C.P. §2033.060(e) 
• No subparts or “compound, conjunctive or disjunctive” requests.   C.C.P. §2033.060(f)
• If you are requesting an admission of the genuineness of documents, then they must be attached.  C.C.P. §2033.060(g)

The discovery treatises also give some helpful advice.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), §8:1287.1 states:

Keep your RFA’s as simple as possible so there is no room for denial!  This will avoid objections on the ground of ‘compound and conjunctive.

Keep in mind that any admission obtained will probably be construed narrowly.  So, make sure there is no room for quibbling as to what was admitted!

CEB, California Civil Discovery Practice (4th ed. 2010) §9:17 advises that because the court has broad discretion in determining admissibility and relevance of evidence and scope and effect of an admission the

. . . RFA’s must be clear concise and unambiguous.  See Fredericks v. Kontos Indus., Inc. (1987) 189 CA 3d 272, 277 (pdf) (if admission is susceptible to more than one meaning, trial court must exercise its discretion to determine scope and effect of admission ‘so that it accurately reflects what facts are admitted in the light of other evidence’.  Trial courts may consider parol evidence that explains an admission but cannot use parol evidence to contradict the plain meaning of a response to an RFA; if a response to an RFA is unambiguous, the matter admitted is conclusively established.  Monroy v. City of Los Angeles (2008) 164 CA4th 248, 260 (pdf)

However, the best advice I was ever given was when I was admonished by a Judge.  During a Case Management Conference the Judge asked me what were the jury instructions I was going to use at trial.  I responded “Your Honor we don’t even have a trial date yet.”  The Judge replied “Then how do you know what discovery you need to prove your case?”   I went back to my office and whined to our seasoned trial attorney.  He had no sympathy for me and said “The Judge is right. Go look at the jury instructions and figure out your case.”  With my tail between my legs I went to the library and looked at jury instructions for the first time.  They were amazing.  They were one page road maps as to what I had to prove.  Right then and there I started using requests for admissions. 

As an example, using California Jury Instruction 1201 Titled Strict Liability—Manufacturing Defect—Essential Factual Elements (pdf), I would write my requests as follows:

Request # 1:    Admit that [name of defendant] [manufactured/ distributed/ sold] the [product].

Request #2:     Admit that the [product] contained a manufacturing defect when it left [name of  defendant]’s possession.

Request #3:     Admit that [name of plaintiff] was harmed while using the [product] in a reasonably foreseeable way. 

Request #4:     Admit that the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm.

I would then serve these Requests for Admissions with Form Interrogatory #17.1 and a Request for Production of Documents for “all documents listed in your answers to Form Interrogatory 17.1(d)."    The foundation of my discovery plan was now set and I was in a position to receive effective evidence or, in the alternative, cost of proof sanctions. 

• Each request must be numbered consecutively.  C.C.P. §2033.060(a)
• The first paragraph immediately shall state he identity of the party requesting the admissions, the set number, and the identity of the responding party.  C.C.P. §2033.060(b)
• Each request shall be “separately set forth.”  C.C.P. § 2033.060(c)
• Each request shall be “full and complete in and of itself” and there shall be no preface or instructions.  C.C.P. §2033.060(d)
• No carry over definitions.  C.C.P. §2033.060(e) 
• No subparts or “compound, conjunctive or disjunctive” requests.   C.C.P. §2033.060(f)
• If you are requesting an admission of the genuineness of documents, then they must be attached.  C.C.P. §2033.060(g)

The discovery treatises also give some helpful advice.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), §8:1287.1 states:

Keep your RFA’s as simple as possible so there is no room for denial!  This will avoid objections on the ground of ‘compound and conjunctive.

Keep in mind that any admission obtained will probably be construed narrowly.  So, make sure there is no room for quibbling as to what was admitted!

CEB, California Civil Discovery Practice (4th ed. 2010) §9:17 advises that because the court has broad discretion in determining admissibility and relevance of evidence and scope and effect of an admission the

. . . RFA’s must be clear concise and unambiguous.  See Fredericks v. Kontos Indus., Inc. (1987) 189 CA 3d 272, 277 (pdf) (if admission is susceptible to more than one meaning, trial court must exercise its discretion to determine scope and effect of admission ‘so that it accurately reflects what facts are admitted in the light of other evidence’.  Trial courts may consider parol evidence that explains an admission but cannot use parol evidence to contradict the plain meaning of a response to an RFA; if a response to an RFA is unambiguous, the matter admitted is conclusively established.  Monroy v. City of Los Angeles (2008) 164 CA4th 248, 260 (pdf)

However, the best advice I was ever given was when I was admonished by a Judge.  During a Case Management Conference the Judge asked me what were the jury instructions I was going to use at trial.  I responded “Your Honor we don’t even have a trial date yet.”  The Judge replied “Then how do you know what discovery you need to prove your case?”   I went back to my office and whined to our seasoned trial attorney.  He had no sympathy for me and said “The Judge is right. Go look at the jury instructions and figure out your case.”  With my tail between my legs I went to the library and looked at jury instructions for the first time.  They were amazing.  They were one page road maps as to what I had to prove.  Right then and there I started using requests for admissions. 

As an example, using California Jury Instruction 1201 Titled Strict Liability—Manufacturing Defect—Essential Factual Elements (pdf), I would write my requests as follows:

Request # 1:    Admit that [name of defendant] [manufactured/ distributed/ sold] the [product].

Request #2:     Admit that the [product] contained a manufacturing defect when it left [name of  defendant]’s possession.

Request #3:     Admit that [name of plaintiff] was harmed while using the [product] in a reasonably foreseeable way. 

Request #4:     Admit that the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm.

I would then serve these Requests for Admissions with Form Interrogatory #17.1 and a Request for Production of Documents for “all documents listed in your answers to Form Interrogatory 17.1(d)."    The foundation of my discovery plan was now set and I was in a position to receive effective evidence or, in the alternative, cost of proof sanctions. 

 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 2010), ¶8:1256, citing Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 C3d 256, 261 (pdf). If a party admits key facts, including legal conclusions, you may be in a position to move for a motion for summary judgment or summary adjudication.  Since requests for admissions are conclusive (unless the court permits an admission to be withdrawn or interprets it so as to limit its effect), the response can't be explained away in a declaration as can be done with answers to interrogatories or deposition questions.

            Second Reason:  Replacing Contention Interrogatories

By serving your requests for admissions with Form Interrogatory #17.1, you have effectively replaced contention interrogatories.  Form Interrogatory 17.1 was specifically designed to cover all the information that is sought with contention interrogatories--state all facts, all witnesses and all documents that support your position.  Also, serving 35 requests for admissions with Form Interrogatory #17.1 (with its four officially sanctioned subparts) is the functional equivalent of serving 140 special interrogatories.  By serving 35 requests for admissions and Form Interrogatory #17.1, you don't have to serve a "Declaration of Necessity" as you would if you served 140 special interrogatories.  It is also very likely that you will want to serve more special interrogatories as the case progresses, so why waste your 35 special interrogatories and take a chance on getting a motion for protective order granted against you?

Third Reason:  Costs of Proof Sanctions

The legislative intent behind requests for admissions was to urge parties to take them seriously.  One of the real kickers of this statute is the cost of proof sanctions set out in C.C.P. §2033.420 (pdf).  If the responding party is found to have unreasonably denied a request for admission, that party may be ordered to pay the costs and fees incurred by the requesting party to prove the issue at trial.  See Garcia v. Hyster Co. (1994) 28 Cal. App. 4th 724, 736 (pdf): Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618, 635-638 (pdf).  The court is required to impose the sanction.  Again, the word shall is in the statute. See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1404 et seq.

Consider using Requests for Admissions--it  is a very effective discovery device. 

NEXT:  How to Draft Your Requests for Admissions. 

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.