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

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

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

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

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

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

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

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

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

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

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

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

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

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Last week I received a phone call from an attorney asking what is the authority that says a party has the right to conduct discovery.  I responded, “The Discovery Act!”  Counsel stated that they needed more because a special master in their construction defect case refused to allow them to serve discovery and was demanding authority to prove that they had such a right.  I thought it was such a basic concept in civil litigation that I was amazed that it even was an issue.

I went to the discovery treatises in order to provide the attorney with authority.  I reviewed Weil and Brown California Practice Guide Civil Procedure Before Trial (TRG 2013), California Civil Discovery (Hogan and Weber 2013) California Discovery Citations (TRG 2013) and California Civil Discovery Practice (CEB 2013).  The CEB treatise had the best discussion regarding a party’s right to discovery in a civil action.  The following is an excerpt from the book: Continue Reading You Have The Right To Conduct Discovery!!