Request for Admissions

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.

However, what I have been seeing lately is that the counsel responding to the written discovery does not understand what their obligations are in responding to written discovery.  It’s as if they never read the statutes and never read any of the treatises.  Instead the responses are full of garbage objections that have no merit and the responses show a failure of a proper investigation. This isn’t just coming from young lawyers but also seasoned lawyers with 15+ years of experience.

In understanding, what a party’s obligations are you need to understand that the purpose of the 1986 Discovery Act is to exchange information between the parties so each side can evaluate their strengths and weaknesses of their case so the case can be resolved before trial.

See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017) §8:1 citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355, 376.

The attorney for the responding party needs to be aware of the statutes in responding to interrogatories, request for admissions and Requests for production of documents each have their own set of requirements for the response.  Yet they have one thing in common:

The code requires that a party must make a reasonable and good faith effort to obtain the information. 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. Superior Court  (1978) 84 CA3d 771, 782. This includes

a party’s lawyer; Smith v. Sup. Ct. (1961) 189 CA 2d 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

experts; Sigerseth v. Superior Court (1972) 23 CA 3d 427,433

See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017) §8:1051-1060

This means that you can’t just pawn off the responses to your client or spend an hour and dictate off the top of your head and then answer “inability to respond.”  See Sinaiko-Healthcare-Consulting-v.–Pacific-Healthcare

Requests for Production of Documents has a very specific obligation as you must make a “diligent search” and a “reasonable inquiry” which can be a very difficult standard for the responding party to meet if challenged.

There are many treatises on Discovery that explain in detail what are a party’s obligations in responding to discovery as well as what are the proper objections to written discovery.  The treatises that I use are:

  • California Civil Discovery Practice 4th Edition (CEB 2017)
  • California Civil Discovery (LexisNexis 2017)
  • Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017)
  • Cal Prac. Guide: Civil Procedure Before Trial FORMS (TRG 2017)
  • California Discovery Citations (TRG 2017)
  • Jefferson’s California Evidence Bench Book 4th Edition (CEB 2017)

I cannot stress how important it is to know your obligations in responding to written discovery as attorneys spend too much time and money arguing over inadequate responses to basic discovery.

 

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

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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?

Statutes governing special interrogatories and requests for admissions do not allow for a preface or instruction.  Only when you are using Judicial Council forms for interrogatories and requests for admissions are a preface or instruction permitted.  See C.C.P. §§2030.060(d) and 2033.060(d).  Yet, both the special Interrogatories and requests for admissions statutes require that any term specifically defined shall be typed with all letters capitalized whenever the term appears. See C.C.P.  §§2030.060(e) and 2033.060(e)

The Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2016) takes a position on this is at ¶8:972, which states:

“[w]hether definitions may be placed at the beginning of specially prepared interrogatories is unclear . . . ”

“. . .However, the fact that §2030.060(e) requires specially defined terms to be capitalized strongly suggests they be placed in a single location.  Presumably, this should be at the beginning of the interrogatories . . . “

The California Civil Discovery Practice, Fourth Edition (CEB 2016) at §7.53 has a different take on prefaces, instructions and definitions for special interrogatories.

Prefaces and Instructions.  To ensure that the limitation on the number of interrogatories not circumvented by a lengthy preface or instructions that might amount to subparts (see §7.335), each interrogatory must be full and complete; no preface or instructions are allowed unless they have been approved by the Judicial Council under CCP §§2033.710 – 2033.740.  CCP §2030.060(d).

Definitions.  Definitions may be used in a set of interrogatories, and defined words must be capitalized whenever they reappear in the interrogatories.  CCP §2030.060(e).  Definitions can help counsel avoid repetition in drafting interrogatories, but they should be tailored to the particular action.  It is important to avoid confusion caused by terms not used in or applicable to the interrogatories propounded.  

Some examples of the use of definitions:

  • Who was the driver of the VEHICLE at the time of the accident on Nov. 1, 2005?  (“VEHICLE” is defined for the purposes of these interrogatories as the 2005 red Jeep Cherokee, California License No. RXV724.)
  • Who was the owner of the VEHICLE at the time of the accident on November 1, 2005?

In my opinion, CEB’s recommendation of putting the definition in the individual interrogatory is the better advice even though it is much more convenient for responding party to have the definitions at the beginning.  It is just not worth risking a court denying your motion to compel further answers on procedural grounds.

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

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Several times per month I receive questions from attorneys regarding a discovery dilemma.  Mostly the questions offer a novel twist on basic discovery.  However, this latest query was quirkier than most and raised some interesting issues and misconceptions, so I thought I would share it with you.   It went like this:

I served written discovery on a cross-defendant in a case, we are one of the defendants.  Cross-defendant (represented by, the plaintiff’s counsel) has appeared in this case by way of demurrer.  Cross-Defendant has refused to answer for the following reasons, (1) my clients are not parties to the cross-complaint so therefore we cannot propound discovery; (2) the court sustained the demurrer with leave to amend and the amended cross-complaint will be filed shortly by the cross-complainant; and (3) the cross-defendant lives in Europe and I need to go through the Hague Convention.  I don’t think any of these are legitimate reasons for not responding to discovery.

Continue Reading DISCOVERY GAMES AND MISCONCEPTIONS – Are These Objections Legitimate?

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Recently I was contacted to help on a party’s Motion to Compel Further Responses to Form Interrogatories, Requests for Production of Documents, and Requests for Admissions. In viewing opposing counsel’s responses to the discovery, I gazed upon the General Response and Objections preamble in absolute astonishment.  It read as follows:

Continue Reading Why You Need to Bring a Motion to Strike General Objections

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ANSWER:     A fictional document. A non-existent objection neither based in statutory authority nor found in case law. A statement by a party during the discovery phase that they will neither be held to the Code of Civil Procedure nor the rules of evidence.

In my years as a discovery referee, I have found that lawyers have gotten into the bad habit of inserting a preamble in their responses to interrogatories, requests for production and requests for admissions. These preambles often state the obvious as to what their rights are as responding parties. However, many times these preambles state general objections to the entirety of the propounded discovery and insert rights that are contrary to the obligations of the Discovery Act, the evidence code and current case law. Even though several interrogatories, requests for documents and request for admissions may be objectionable on the same ground they may not be objected to as a group. See Hogan and Weber, California Civil Discovery (2d. ed 2009) §51 Continue Reading What is a General Objection?

Overwhelmed Office Worker

Somewhere in the back of your mind you are aware that discovery and Motions for Summary Judgment deadlines are looming. Yet, you really don’t pay attention to them until they are upon us usually around day 45 when you start trying to schedule experts. That is when you realize there are not enough hours in the day and days in the week. Unless you have a case that is a simple slip and fall or a fender bender, the last 100 days before trial can be daunting. Throw in a Motion for Summary Judgment or Summary Adjudication into the mix and you’re swamped. Then there is the ultimate question you ask yourself, “When am I going to find time to prepare for trial.”

The Code of Civil Procedure timeline regarding deadlines for expert disclosure, close of discovery and the last day discovery motions can be heard is demonstrated below.  Seeing it scheduled in black and white is kind of scary. Continue Reading Discovery Plan Part 4 — The Year Before Trial

iStock_000016672124XSmall-1.jpgI recently received an e-mail from a pro-per who asked me

“ 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…

Continue Reading Save Time, Money and Angst — MEET AND CONFER

Southern Belle.jpgAs every lawyer is aware, a party may propound more than 35 specially prepared interrogatories or requests for admissions simply by attaching a Declaration of Necessity (pdf) pursuant to C.C.P. §2030.040 (pdf) and  C.C.P. §2033.040 (pdf) stating the reasons why they need more.  See C.C.P. §2030.050 (pdf) and C.C.P. §2033.050 (pdf).   However, when you receive more than 35 specially prepared interrogatories or requests for admissions, you should ask yourself the question “IS IT REALLY NECESSARY?” Continue Reading “I DECLARE, IT IS NECESSARY”