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:
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?
I 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…
As 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”
As I talked about in my first blog “Why Aren’t You Using Requests for Admissions”, the legislative intent behind requests for admissions is to urge parties to take them seriously. One of the real kickers of this statute is the cost of proof sanctions set out in C.C.P. §2033.420 (pdf). If the responding party is found to have unreasonably denied a request for admission, that party may be ordered to pay the costs and fees incurred by the requesting party to prove the issue at trial. See Garcia v. Hyster Co. (1994) 28 Cal. App. 4th 724, 736 (pdf): Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618, 635-638 (pdf). The court is required to impose the sanction. Again, the word shall is in the statute.
Requests for admissions may be used to (1) establish the truth of specified facts, (2) admit a legal conclusion, (3) determine a party’s opinion relating to a fact, (4) settle a matter in controversy, and (5) admit the genuineness of documents. See C.C.P. §2033.010 (pdf); Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶¶8:1288 – 8:1301.2; CEB California Civil Discovery Practice 4th Edition §§ 9:17 – 9:20. However that is all good and dandy, but how to write a request for admission in order to obtain effective evidence or to set up a cost of proof sanction is difficult.
C.C.P. §2033.060 (pdf) sets forth the basic tenants as to how a request for admission must be drafted:
- Each request must be numbered consecutively. C.C.P. §2033.060(a)
- The first paragraph immediately shall state he identity of the party requesting the admissions, the set number, and the identity of the responding party. C.C.P. §2033.060(b)
- Each request shall be “separately set forth.” C.C.P. § 2033.060(c)
- Each request shall be “full and complete in and of itself” and there shall be no preface or instructions. C.C.P. §2033.060(d)
- No carry over definitions. C.C.P. §2033.060(e)
- No subparts or “compound, conjunctive or disjunctive” requests. C.C.P. §2033.060(f)
- If you are requesting an admission of the genuineness of documents, then they must be attached. C.C.P. §2033.060(g)
The discovery treatises also give some helpful advice. Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), §8:1287.1 states:
Keep your RFA’s as simple as possible so there is no room for denial! This will avoid objections on the ground of ‘compound and conjunctive.
Keep in mind that any admission obtained will probably be construed narrowly. So, make sure there is no room for quibbling as to what was admitted!
CEB, California Civil Discovery Practice (4th ed. 2010) §9:17 advises that because the court has broad discretion in determining admissibility and relevance of evidence and scope and effect of an admission the
. . . RFA’s must be clear concise and unambiguous. See Fredericks v. Kontos Indus., Inc. (1987) 189 CA 3d 272, 277 (pdf) (if admission is susceptible to more than one meaning, trial court must exercise its discretion to determine scope and effect of admission ‘so that it accurately reflects what facts are admitted in the light of other evidence’. Trial courts may consider parol evidence that explains an admission but cannot use parol evidence to contradict the plain meaning of a response to an RFA; if a response to an RFA is unambiguous, the matter admitted is conclusively established. Monroy v. City of Los Angeles (2008) 164 CA4th 248, 260 (pdf)
However, the best advice I was ever given was when I was admonished by a Judge. During a Case Management Conference the Judge asked me what were the jury instructions I was going to use at trial. I responded “Your Honor we don’t even have a trial date yet.” The Judge replied “Then how do you know what discovery you need to prove your case?” I went back to my office and whined to our seasoned trial attorney. He had no sympathy for me and said “The Judge is right. Go look at the jury instructions and figure out your case.” With my tail between my legs I went to the library and looked at jury instructions for the first time. They were amazing. They were one page road maps as to what I had to prove. Right then and there I started using requests for admissions.
As an example, using California Jury Instruction 1201 Titled Strict Liability—Manufacturing Defect—Essential Factual Elements (pdf), I would write my requests as follows:
Request # 1: Admit that [name of defendant] [manufactured/ distributed/ sold] the [product].
Request #2: Admit that the [product] contained a manufacturing defect when it left [name of defendant]’s possession.
Request #3: Admit that [name of plaintiff] was harmed while using the [product] in a reasonably foreseeable way.
Request #4: Admit that the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm.
I would then serve these Requests for Admissions with Form Interrogatory #17.1 and a Request for Production of Documents for “all documents listed in your answers to Form Interrogatory 17.1(d).” The foundation of my discovery plan was now set and I was in a position to receive effective evidence or, in the alternative, cost of proof sanctions. I would then serve these Requests for Admissions with Form Interrogatory #17.1 and a Request for Production of Documents for “all documents listed in your answers to Form Interrogatory 17.1(d).” The foundation of my discovery plan was now set and I was in a position to receive effective evidence or, in the alternative, cost of proof sanctions.
If you are like most lawyers, you are using the typical discovery devices to gather up all your information–form interrogatories, special interrogatories, requests for production of documents, and of course the deposition schedule from Hell. However, requests for admissions are rarely in a party’s discovery plan. I suggest you take a closer look at C.C.P. §2033.010 (pdf) et seq. Requests for admissions are wonderful, tricky little discovery devices that really help you set up your case. Let me explain why.
Discovery motions are the banes of most attorneys’ existence and they are often relegated to the newbie in the office to prepare. Young associates as well as other attorneys struggle on what needs to be in the papers and exactly how to convince the court that they should win.
With the courts’ having budgetary problems and staff shortages, it is in your best interests to make it real clear to the court (1) what has happened; (2) what you want the court to do; and (3) why you are entitled to the discovery and sanctions in a succinct fashion.
Not only are most objections garbage, we tend to recycle our garbage objections from one case to the next. Sometimes, we pick up other attorneys’ garbage objections and contribute to more litter. This is done over and over again without even thinking what it is doing to the environment of the litigation.
Garbage objections fuel the ire of opposing counsel. The “meet and confer” letter that is soon to follow is usually full of hostility and threats. Any amicable relationship you had hoped for with opposing counsel is on the cusp of being destroyed. More important, you are now costing your client more money in attorneys’ fees and possibly in settlement. So before you throw out the trash, look at these common objections and why they will be overruled: