The purpose of discovery is to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1 citing Greyhound Corp. v. Superior Court (1961) 55 C.2d. 335, 376.

Serving “[a]ppropriate written interrogatories are one of the means to accomplish the general goals of the discovery process designed to facilitate a fair trial.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 CA4th 377, 389)

“Interrogatories expedite the resolution of lawsuits … [by detecting] sham claims and defenses … [and] may be employed to support a motion for summary judgment or a motion to specify those issues which are without substantial controversy.”  Deyo v. Kilbourne (1978) 84 CA3d 771, 779

When responding to interrogatories, the Discovery Act requires a party to make a reasonable and good faith effort to obtain the information before responding to the interrogatories. Regency Health Services, Inc. v. Superior Court (1998) 64 CA4th 1496.  A party cannot plead ignorance to information, which can be obtained from sources under his control. Deyo v. Kilbourne (1978) 84 CA3d 771, 782  This includes a party’s lawyer Smith v. Superior Court (Alfred) (1961) 189 CA2d 6, agents or employees Gordon v. Sup. Ct.  (1984) 161 CA 3d 151, 167-168, family members Jones v. Superior Court  (1981) 119 CA 3d 534, 552. See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1051-1060.  This means that an attorney can’t just pawn off the responses to the client or spend an hour and dictate the responses off the top of his head.  See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390.

Unfortunately, the propounding party often receives responses to their interrogatories that include a “General Objection” or a “Preliminary Statement”, which is improper, and garbage objections with no substantive responses. Responding parties even use garbage objections to Form Interrogatories which were drafted by the California Judicial Council (The Administrative Office of the Courts) and considered objection proof as to form.   See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:933.

It is patently obvious ungrounded refusal to answer, prolonged delay and incorrect answers to interrogatories seriously inhibit “the principal aim of discovery procedures in general [which] is to assist counsel to prepare for trial….”  Smith v. Circle P. Ranch Company, et al. (1978) 87 Cal.App.3d 267, 273.

Bring your motion to compel further responses to interrogatories as you are entitled to proper responses and, hopefully, the court will make it clear to the responding party that such abuse of the discovery process will not be tolerated.

 

In the case of Victalic Company v American Home Assurance Company the First District Court of Appeal made it very clear that denials to Requests for Admissions are inadmissible.   Here is the court’s reasoning starting at page 23 of the published opinion:

Gonsalves v. Li (2015) 232 Cal.App.4th 1406 (Gonsalves) involved an automobile accident. Plaintiff called defendant as an adverse witness and asked about his qualified denials of plaintiff’s RFAs that he was responsible for the accident. And in closing argument, plaintiff emphasized that the denials were evidence defendant refused to take responsibility for plaintiff’s injuries. (Id. at p. 1413.) The jury returned a verdict for plaintiff for $1,208,642.86. (Id. at p. 1411.) Our colleagues in Division Five reversed, holding it was error for the trial court to allow questions about RFAs.

The court first discussed analogous cases, including Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, holding

that it was improper to ask at deposition “ ‘legal contention questions,’ ” which questions were condemned as requiring the party “ ‘to make a “law-to-fact” application that is beyond the competence of most lay persons.’ ”

(Gonsalves, supra, 232 Cal.App.4th at p. 1415.) These concerns, the court concluded,

“apply to the use of qualified denials to RFA’s in the examinations here. Li was asked to explain ‘by memory and on the spot’ and without the ability to consult with his attorney why he took the legal position that he could not admit or deny certain RFA’s without further inquiry. And he was asked to do this not in a deposition, as in Rifkind, but in front of the jury.” (Id. at pp. 1415–1416.)

And the court went on to hold: “The weight of authority in other jurisdictions also favors Li’s position. Massachusetts’s highest court interpreted a statutory scheme similar to California’s and concluded that denials to RFA’s are not admissible evidence at trial: ‘The purpose of [RFA’s] is to narrow the issues for trial by “identifying those issues and facts as to which proof will be necessary.” [Citation.] A denial . . . is not a statement of fact; it simply indicates that the responding party is not willing to concede the issue and, as a result, the requesting party must prove the fact at trial. [Citations]. The sanction for improperly responding to [RFA’s] is the shifting of the award of incurred expenses[—see rule 36(a) of the Massachusetts Rules of Civil Procedure]. [¶] Further, [Massachusetts Rules of Civil Procedure, rule 36(b)], which governs [RFA’s], does not specifically provide for the admission of denials in evidence. Although the rule states that admissions are conclusively binding on the responding party, it makes no parallel provision for the use of a denial. By contrast, [Massachusetts Rules of Civil Procedure, rule 33(b)], governing interrogatories, states that the answers to interrogatories “may be used [at trial] to the extent permitted by the rules of evidence.” The omission of a similar provision in rule 36(b) indicates that, although admissions have binding effect, denials do not have such an effect and cannot be introduced in evidence.’ [Citation.] Therefore, the trial court ‘incorrectly concluded that a denial of a request for admission is admissible as a prior inconsistent statement’ to impeach a witness at trial. [Citation.]” (Gonsalves, supra, 232 Cal.App.4th at p. 1416, fns. omitted.)

Finally, Gonsalves noted that appellate courts in at least three states have similarly held that denials of RFA’s are inadmissible at trial, citing to Winn Dixie Stores, Inc. v. Gerringer (Fla.Dist.Ct.App. 1990) 563 So.2d 814, 817; Mahan v. Missouri Pacific Railroad Co. (Mo.Ct.App. 1988) 760 S.W.2d 510, 515; and American Communications v. Commerce North Bank (Tex.App. 1985) 691 S.W.2d 44, 48.) (Gonsalves, supra, 232 Cal.App.4th at pp. 1416–1417.)

I received a comment about one of my blogs saying:

Many young(er) attorneys abuse discovery as a matter of course – as if they have been taught how to be obstructionists at law school. I also think newer attorneys do the scorched earth route to create more billing.  One dope sent me objections that were over 100 pages.

I have written many blogs regarding how to handle discovery abuse by opposing counsel.  These include filing motions to compel further responses, filing motions for protective orders and how to recover sanctions.

Continue Reading DO YOU KNOW WHAT YOUR OBLIGATIONS ARE IN RESPONDING TO WRITTEN DISCOVERY?

The title of this blog is a quote from the most basic tenant of the 2016 Discovery Act found in Code of Civil Procedure Section 2017.010 titled Matters Subject to Discovery which reads:

“Unless otherwise limited by order of the court in accordance with this title, 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. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” [Emphasis added]

The courts and the treatises liberally construe this statute and a party’s right to obtain the identity and location of witnesses.

Continue Reading Discovery May Be Obtained of the Identity and Location of Persons Having Knowledge of Any Discoverable Matter

 

A row of six blue mailboxes on a street in Charleston, South Carolina. Focus is on the first mailbox's rusty screw head.

When I was a research attorney for Alameda County Superior Court, my judge drilled into me to always check the proof of service to make sure that it was signed and service on all parties had properly been made.  As a Discovery Referee, I still review the proof of service first and I am always amused when the proof of service is signed saying that I was already served.  Recently I was reading Aaron Morris’ article “Don’t be that Attorney—Ten Ways to Make Yourself Look Foolish”,  a humorous article that many of us lawyers always wanted to write about the outlandish positions attorneys take.  I specifically enjoyed his third pet peeve and had to pass it along.

So here it is

Continue Reading To Sign or Not to Sign Your Proof of Service

gears concept

Recently I received a telephone call from an attorney wanting to discuss whether opposing party’s objections to her special interrogatories had any merit.  Listening to the list of objections, it was clear that the opposing party had failed to assert the objections in good faith as the objections included a General Objection preamble and every response included the same boilerplate garbage objections.  However, one of the objections I hadn’t seen before:  “No preface or instruction shall be included with a set of interrogatories.  C.C.P. §2030.060(d).”  The propounding party had placed the definitions of specific terms in a preamble.  Did I think this was ok or not?

Continue Reading Avoiding the Technical Mistakes When Drafting Written Discovery

Decorative Scales of Justice in the CourtroomIn most practices areas, facts are king. The attorney who can discover and present the best “facts” will be the most persuasive when presenting their case to the judge or jury. However, some cases can be won in the law and motion department with a Motion for Summary Judgment and/or Summary Adjudication.  In these cases, the facts are less important than the law. If your case is one that you can win as a matter of law based on inconvertible facts (or the opponents admitted facts) and you believe that a Motion for Summary Judgment or a Motion for Summary Adjudication is appropriate, you need to develop a discovery plan specifically tailored to these motions.

Continue Reading Discovery and the Motion for Summary Judgment

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 .

Continue Reading The Interrogatory Says What it Says

businessman sitting at his desk and falling asleep

For years I have been blogging about bad discovery habits from Garbage Objections to unauthorized General Objections, and preached that attorneys must play by the rules. As you know if you have read my blogs, I am quite the supporter of the 1986 Discovery Act, and often express my opinions  on a party’s responsibility during the discovery process.  More importantly, I attempt to educate lawyers about the Discovery Act so they can be well prepared with their arguments when the court makes a wrong turn (yes, it does happen).

Continue Reading The Pitfalls of Bad Discovery Habits

A close-up of a Baseball or Softball Home Plate Umpire

Recently I received an e-mail from an attorney who followed my advice regarding General Objections.  It went like this:

“I read your article ‘Why you Need to Bring a Motion to Strike General Objections,’ and filed a ‘Motion to Strike Defendants’ Preliminary Statement and Unmeritorious Objections.’  The Preliminary Statement contained many of the issues you pointed out in your article, and each of defendants’ responses to interrogatories and document requests contained the same 28 lines of objections.  The court then separated the motions to compel from the motions to strike and refused to rule on the motion to strike stating “There is no such motion.” Is the court correct?”

Continue Reading DISCOVERY GAMES AND MISCONCEPTIONS – Is the Court Correct That There is No Motion to Strike in Discovery?