Have you ever been in any of these situations?
Ten days after your client was served with the summons and complaint, the client was personally served with Form Interrogatories, 35 specially prepared interrogatories, 35 requests for admissions and 50 document requests.
Days after an unsuccessful mediation, you are served with 75 requests for admission, 60 special interrogatories, Form Interrogatory #17.1 and 100 requests for documents. A Declaration of Necessity was served with the discovery.
Eleven days before the close of discovery, opposing counsel hand serves you with a Person Most Knowledgeable/Custodian of Records Deposition Notice with 27 separate categories for testimony and 67 requests for documents.
In each of these situations the discovery propounded was proper according to the Code of Civil Procedure.
A party can serve more than 35 Special Interrogatories and more than 35 Requests for Admissions with a proper Declaration of Necessity pursuant to C.C.P. §2030.050 and C.C.P. §2033.050 respectively. Also, there are no limitations on the number of requests for documents a party can propound.
The notice period for a party’s deposition is 10 days. See C.C.P. §2030.050).
In each of these scenarios the responding party can seek relief from the court. This can be done by bringing a Motion to Limit Discovery pursuant to Code of Civil Procedure §2017.010.
This code section titled Matters subject to discovery provides the following forms to use to bring such a motion:
- Notice of Motion for Order Limiting Scope of Discovery
- Declaration Supporting Motion for Order Limiting Scope of Discovery
- Order Limiting Scope of Discovery.
When bringing this motion, the burden shifts to the propounding party to explain why the discovery is necessary as well as the quantity of discovery and the limitations on time to respond to the discovery.
The arguments that I find persuasive for each scenario is:
The discovery being served equals more than 250 discovery requests, assuming Form Interrogatory #17.1 is being propounded. When the discovery was served, an answer not yet been filed and counsel had not been retained. There is not enough time to properly respond to the discovery being propounded. Propounding party has used all of the 35 special interrogatories and requests for admissions and there should be a limit on how many further special interrogatories and requests for admissions can be served to the end of the case.
The discovery is a strategy to get the other side to settle. How much discovery has already been responded to and in what areas of inquiry. The case doesn’t warrant limitless discovery and should be curtailed. The discovery being propounded are on collateral issues. There are more cost-efficient discovery devices that can be used (i.e., PMK and third- party depositions as well as RFA’s for genuineness of documents).
The discovery being propounded is strategic to force a trial continuance or to get the other side to settle. There is no time to determine who is the person most knowledgeable, collect the documents and prepare the witness(es). The parties are still taking expert witnesses, writing motions in limine and preparing for trial. The propounding party has already taken corporate personnel depositions regarding these categories and have produced the same categories of documents in prior productions. If the depositions of the person most knowledgeable and the documents were so important why weren’t the served earlier?
The purpose of the Discovery Act is to exchange information in an orderly and professional manner so each side can obtain the information they need to evaluate their case. It was never meant to be used as a weapon. See Calcor Space Facility, Inc. v. Superior Court (1997) 53 CA4th 216