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.

 

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

iStock_000008477093SmallI have always been a strong advocate that you should be awarded sanctions if you had to bring a motion to get the relief you were entitled to even if the other side complied prior to the hearing on the motion.  However in the case of Evilsizor v. Sweeney (2014) 230 CA4th 1304, the First District Court of Appeal had an interesting take on the issue.

Continue Reading Should you withdraw your motion if the other side has complied?

Judge and Hammer

W. George Wailes, a Business Trial Attorney and Director at Carr McClellan, in Burlingame, CA brings us this warning from the California Court of Appeal about what could happen to a third party that refuses to comply with a subpoena for electronically stored information.

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The California Court of Appeal recently provided rare guidance regarding a third party’s obligations to produce electronically stored information (ESI) in response to a subpoena.  In Vasquez v. California School of Culinary Arts, Inc. (Sallie Mae) (2014) 230 CA4th 35, the court defined subpoenaed parties’ obligations to extract existing data from computer systems and upheld an award of attorneys’ fees against the recalcitrant third party.  The court concluded that it is unreasonable for a third party to withhold ESI that exists in its computer systems on the basis that outputting the ESI entails creating a “new” spreadsheet.

Continue Reading A Third-Party Can Expect Sanctions for Ignoring a Subpoena for Electronically Stored Information

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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

Wallet with MoneyA fellow Bay Area attorney contacted me about being sanctioned in excess of $5,000. He was mortified, as it was the first time he had ever been sanctioned and couldn’t believe the amount he was sanctioned under the circumstances. After I had spoken to him about his remedies, one being, a Writ (pdf), he wrote me the following e-mail.

Just wondering, but what does the phrase “acted with substantial justification” mean in the sanctions statute for motion to compel depo testimony, CCP 2025.480 (pdf)? Continue Reading Acted with Substantial Justification

Security Guard

 

Over lunch last week, a local attorney was complaining to me about his case that is going to trial in July.  On the last day to serve written discovery, Plaintiff counsel had served each of his five clients, on behalf of each of her three plaintiffs, a separate set of 50 specially prepared interrogatories, 35 requests for documents, 70 requests for admissions and 17.1 of the Form Interrogatories for a total 750 specially prepared interrogatories and 525 requests for documents, 1050 requests for admissions and 4200 responses to Form Interrogatory 17.1 equaling 6525 discovery requests to be responded to 30 days before trial.     Continue Reading YOU NEED TO FILE A MOTION FOR A PROTECTIVE ORDER!!

iStock_000000215562XSmall.jpgLast week I received the following e-mail from one of my readers:

I have read your articles with interest and respect for some time now; I find them excellent plus.I have a friend who is acting pro per in a civil case. Suffice it to say she can’t afford or get an attorney.

Opposing counsel has made a mockery of discovery by making (putrid) garbage objections to 99% of discovery sent him. He uses every boilerplate objection and has even objected saying some discovery was “unintelligible” when my friend didn’t define a name that was the name of the defendants product…  Opposing counsel is clearly abusing the intent of discovery dragging my friend into “Meet and Confer Hell” while knowing that as a pro per, my friend can not get anything more at this point than her costs of filing a Motion to Compel (which she has won) and photocopy costs. On the other hand, and I speak with authority, opposing counsel has created enough work for himself to literally turn a reasonably moderately sized case into a major matter and I would estimate he has made more than $250,000 in fees from his client (no insurance company involved) in 2011.

My point being: There is clearly a wrong here (major discovery abuse and a lack of any good faith) and no remedy.Am I being naive in thinking something should be done or a remedy created? Continue Reading Am I Naïve to Think Something Should Be Done?