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
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.
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.
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.
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
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?
In 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.
There 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 .
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).