DILEMMA: It is 30 days before trial and you get the final responses to your propounded discovery.  In reviewing responding party’s answers to supplemental interrogatories the verified response says “Responding party states that all answers to Interrogatories, Set No. One, that were previously served in this action remain the same.”  Yet years have passed, records have been obtained, experts have been deposed and you know they’re lying. What do you do?

The Discovery Act allows a party to serve a Supplemental interrogatory and a Supplemental demand at least three times: 

• twice prior to any trial setting; and
• once after the initial trial setting and before the initial trial date

The act also allows that “ for good cause shown” (i.e., trial continuance) the court may permit more supplemental interrogatories or supplemental demands.  See C.C.P. §2030.070 (pdf) and C.C.P. §2031.050 (pdf)

The burden is on the propounding party to obtain the updated information otherwise there is no continuing obligation of a responding party to update their responses.  However, the reality of the matter is that these discovery devices are seldom used and the responding parties rarely take them seriously.

As a discovery referee, I see most parties use the supplemental interrogatory and demand as their last discovery device with the responses due exactly 30 days before trial.

More often then not the propounding party is saddled with the above response with the trial date just weeks away leaving precious time to meet and confer in good faith and timely bring the motion.  But the bottom line is, YOU HAVE TO BRING THIS MOTION or your proceeding to trial in the dark.  Also, don’t kid yourself, this going to be an ugly one.  In order too win this motion you are going to have to point out to the court that opposing counsel (1) failed to make a reasonable and good faith effort to obtain the information; (2) only spent five minutes dictating “all answers remain the same”; (3) relied on three-year-old objections that are now garbage objections; and (4) is playing games with discovery for the sole purpose of hiding the ball and trying to skunk you at trial.   Your motion is also going to be asking for, at a minimum, a continuance of the trial if not issue and evidence sanctions.

In order to avoid the above scenario, a party should use the supplemental interrogatories and demands in an efficient and effective manner.  They should be sent at least once a year and no later then 90 days before trial.  The responses you obtain should direct you on how to proceed with your discovery plan.  If the responding party says they don’t have any further information, then you need to solidify that point by either way of a motion to compel further responses, requests for admissions or  motion in limine so no further information can be admitted at trial.

Moral of the Story: Supplemental interrogatories and supplemental demands are useful tools and they should definitely be in your bag of tricks.  Just don’t wait until the last minute to use them.

On August 14, 2012, Judge William A. Mayhew of Stanislaw Superior Court issued his Notice of Hearing on Issues Re Remand (pdf)in the case of Debra Coito v. State of California.  The order requested that the following issues to be briefed:

1. Does the absolute privilege apply to all or any part of the recorded witness interviews?
2. Does the Plaintiff contend that they can make a sufficient showing of unfair prejudice or injustice under C.C.P. Section 2018.030(b) such as to allow discovery as to any of the interviews that may be found to be not absolutely privileged?
3. As to interrogatory 12.3, does the STATE contend that answering said interrogatory would result in opposing counsel taking undue advantage of the attorney for the STATE’s industry of efforts or that answering said interrogatory would reveal the attorney of the STATE’s tactics, impressions or evaluation of the case?

Issue 2 is easy for the plaintiff to respond to, as the prejudice is TIME.  The death of Timothy Wilson occurred over five years ago on March 9, 2007.  Even the best witness is not going to remember all the details and is going to need the statement to refresh his/her memory.

Issue 3 also is easy to respond to.  Form Interrogatory 12.3 reads as follows:

Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from any individual concerning the INCIDENT? If so, for each statement state:

(a) the name, ADDRESS, and telephone number of the individual from whom the statement was obtained;

(b) the name, ADDRESS, and telephone number of the individual who obtained the statement;

(c) the date the statement was obtained; and

(d) the name, ADDRESS, and telephone number of each PERSON who has the original statement or a copy.

How much different is this then providing the information in a privilege log pursuant to C.C.P. §2031.240 (pdf) in which it is expected that for each document withheld on the claim of privilege that the privilege log state (a) the nature of the document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or document control number, if any), and (f) the privilege claimed?  See California Civil Discovery Practice (CEB 4th Ed. 2012) §3.192 citing Wells Fargo Bank v. Superior Court (2000) 22 C4th 201 (pdf) and see CEB §33.201 for a sample of a privilege log.  Therefore, the State should respond to the interrogatory.

Issue 1 is the real problem, as Coito never gave directions on how the Judge is going to determine this.

As we have learned in the Supreme Court’s Opinion in Coito v Superior Court, the work product protection may be either absolute or qualified.  C.C.P. Section 2018.030(b) (pdf) states that there is an absolute protection against discovery of any writing that reflects an attorney’s “impressions, conclusions, opinions or legal research or theories.”  The protection continues even if the writing is delivered to a client as long as it is delivered in confidence.  BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal. App. 3d 1240, 1252 (pdf).  Because such documents are absolutely protected, courts do not engage in any sort of weighing or balancing of competing interests with regard to these documents.   California Civil Discovery Practice (CEB 4th Ed. 2012) § 3.53 citing  Fellows v. Superior Court (1980) 108 CA3d 55.

But not every question asked of a witness shows the attorney’s “impressions, conclusions, opinions or legal research or theories.”  Questions such as “State your name, address and phone number.”,  “Tell me what happened.”, “What did you see?” or  “What did he say?”  are generic investigative questions and do not show an attorney’s “impressions, conclusions, opinions or legal research or theories.”

According to Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2012)  ¶8:239:

Statements made (verbally, in writing or in records) by a witness to interviewing counsel are usually “evidentiary” (non-derivative) in nature, and hence discoverable [See Kadelbach v. Amarai (1973) 31 CA3d 814, 823; 107 CR 720,725

However, many witness statements are an “amalgam” of the witness’ recorded statements and comments by the interviewing attorney.  In such cases, that part of the statement consisting of the attorney’s own comments is absolutely protected under CCP §2018.030(a) (as a writing reflecting the attorney’s “impressions, conclusions, opinions, etc.)  And, where the attorney’s comments are inextricably intertwined with the witness’ statement, the entire statement is absolutely protected.  [Rodriguez v. McDonnell Douglas Corp. (1978) 87 CA3d 626, 647-648; 151 CR 399, 410]

There are many ways for Judge Mayhew to handle Issue 1.  First, the Judge can instruct the State to redact only the questions and/or responses that show an attorney’s “impressions, conclusions, opinions or legal research or theories” and trust that they will respond in good faith.  Second, Judge Mayhew can order an in camera hearing and have a more candid discussion with counsel for the State as to what is in the statements.  Finally, which I believe is the best course, is for Judge Mayhew to advise the State that, unless the State is ready to spend another couple of years at the Court of Appeals and Supreme Court, it is time for them to allow the court to do an in camera inspection of all the witness statements and determine which questions and responses are generic and which ones actually show what the attorneys “impressions, conclusions, opinions or legal research or theories.”

Unfortunately, even if the parties figure out how to resolve the witness statements at the trial level; Courts are still going to be in the dark as to what they need to do to determine whether or not a witnesses’ statements are protected in whole or part because of the absolute work product privilege until the Appellate Courts addresses the issue.

I am pleased to report that the California Judicial Council has approved for use Form Interrogatories—Construction Litigation (form DISC-005).  The approved form will be on the Judicial Council website at http://www.courts.ca.gov/forms.htm in December and will become effective January 1, 2013. 

These interrogatories follow the same format as the other Judicial Council form interrogatories. The instructions at the beginning are essentially the same as those of the other form interrogatories, with two exceptions:

1. In residential construction cases the use of the interrogatories is five residential single-family homes or housing units.  In cases involving six or more single-family homes or housing units or in a case deemed complex under rule 3.400 of the California Rules of court, a party must obtain judicial approval prior to their use.  The rationale behind this limitation was that in these instances there is the potential of abuse and the case would be on direct calendar or a special master/discovery referee would be involved.
2. The instructions recognize that a document depository is created in many construction cases, so form permits interrogatory responses that point to specific documents in such a depository that contain the information sought.

Other notable aspects of the proposed construction form interrogatories include the following:

As with other civil form interrogatories, parties may attach additional individually crafted interrogatories.

• The definitions section in the instructions of the construction form interrogatories parallels the list in the general civil form interrogatories but add or substitute terms specific to construction litigation. Because “incident” would be confusing as a defined term in construction interrogatories, that term has been replaced with “construction claim” and “construction defect claim”; the asking party still has the option of crafting custom definitions for these two defined terms, just as with “Incident” in the civil interrogatories.
• The construction interrogatories are intended to serve as a single integral set of interrogatories rather than as a discrete set of specialty interrogatories for use as an addition or supplement to other form interrogatories, so they include interrogatories on several topics included in the general civil form interrogatories, with several of those tailored to more specifically address construction cases.
• None of the questions concerning personal injury from the general form interrogatories are included in the proposed form. Such interrogatories would rarely be applicable in a construction case with the exception of the mold cases, and the committee concluded that their presence in this set would unnecessarily complicate the form.

I, again,  want to thank each of the committee members for their hard work and dedication.  Despite their differences with one another on various issues, as a whole we worked hard as a team and were proud of our end product.  I also want to thank Anne Ronan, staff Attorney for the Judicial Council, who too worked endless hours on this project.  Most of all I want to thank the Civil and Small Claims Committee for recognizing all the hard work the attorneys have dedicated to making the Form Interrogatories–Construction Litigation a reality by recommending the interrogatories and inviting the public to comment. And, finally, I want to thank the Judicial Council for approving the form interrogatories.

If you have any questions regarding the Form Interrogatories–Construction Litigation, please do not hesitate to contact me.

Many times when a plaintiff answers Form Interrogatory 6.4, responds to requests for production of medical bills or prepares a settlement demand, they use the total medical bill without any regard to if the bill has been reduced or paid by another.  This is because of the collateral source.

The collateral source rule, which is a rule of evidence, states that

“if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor… [It] expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities. Courts consider insurance a form of investment, the benefits of which become payable without respect to any other possible source of funds. If we were to permit a tortfeasor to mitigate damages with payments from plaintiff’s insurance, plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. Defendant should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance.  Helfend v. Southern California Rapid Transit Dist. (1970) 2 C3d 1, 6-10 (pdf)

Because of the collateral source rule courts found that defendants could not discover whether or not any of plaintiff’s medical bills were paid by the plaintiff’s insurance, the medical treaters reduced their bill or there was gratuitous medical treatment.  See Weil and Brown, Civil Procedure Before Trial (TRG 2012) ¶ 8:96.

Last year, the California Supreme Court in Howell v. Hamilton Meats & Provisions (2011) 52 C4th 541 (pdf) punched a hole in the collateral source rule by limiting plaintiff’s recovered damages to the actual economic loss incurred.   The Supremes held that

When a medical care provider has, by agreement with the plaintiff’s private health insurer, accepted as full payment for the plaintiff’s care an amount less than the provider’s full bill, evidence of that amount is relevant to prove the plaintiff’s damages for past medical expenses and, assuming it satisfies other rules of evidence, is admissible at trial. Howell at 567

Since what plaintiff’s actual medical costs incurred is now admissible, it is now discoverable.

SEE: Jefferson’s California Evidence Benchbook (CEB 2013) §36.40-36.45 for more discussion.

In many cases mediation is the most cost-efficient and effective method of resolving a case. Often, litigants can save a lot of money and time when mediation is held after first tier discovery has been completed, once the core facts are determined that circumscribe the dispute. In order to facilitate early resolution many courts have implemented mediation programs and asked mediators to volunteer their time. Unfortunately, many mediators are becoming discouraged with these programs because many times the parties are not prepared.

Speaking to a number of Bay Area mediators who participate in the court ordered mediation panels, they have uniformly identified that the majority of the court ordered mediation cases are breach of contract and personal injury cases.

It was a consensus that, whether the information is obtained through investigation, informal exchange of information or formal discovery, parties need to know the absolute basics of their case so that they can intelligently mediate.  Mediation is not the time to expect an opponent to “educate” you of the basic understanding of your case.   This may seem to be obvious, but in hearing the stories from the mediators it was surprising on how unprepared many parties are. 

In my opinion, a proper evaluation of the case is the single critical factor to a successful mediation. The proper evaluation is based on the stage of the case. With early mediation, there  will be less certainty regarding the evaluation of the case (a wider range of unknowns).  The flip side, however, is that with greater certainty through discovery comes added costs of the discovery itself. However, in most breach of contract and personal injury cases, experienced litigators (and clients for that matter that have experience in settling sometimes thousands of cases) can calculate a rough settlement range at any stage of the case based on the known facts, the law, and the expected costs moving forward.

Also, to properly prepare for mediation in the non-typical cases, preparation requires understanding the possible outcomes, if the case is not a simple “how much”.  Preparation must be done to determine whether the dispute is, for example over the probability of winning title to property in a quiet title action (where winner takes all). Or, can the dispute between the litigants be resolved by agreeing to injunctive relief, or by one party agreeing to do work as part of the resolution. Understanding, planning for, and evaluating the settlement paradigm or possibilities must be thought through BEFORE the mediation begins, or you may find yourself evaluating them for the first time in front of the mediator, the opposing counsel and your client.

Below are suggestions from the mediators on how to prepare for mediation:

PRIOR TO SCHEDULING MEDIATION

• Research the causes and of action and establish what you need (if you are a plaintiff, or your opponent needs if you are a defendant) to prove you case. Review jury instructions. Determine whether or not any statutes or case law are relevant or even dispositive to the case.
• Is this a case that can be positioned for a dispositive motion such as a motion for summary judgment or judgment on the pleadings? What are the odds of success? Is it wise to file the motion prior to the mediation, so that the possible outcome can influence your opponent’s evaluation and view of the case?
• Are there any legal issues that need to be resolved before you can properly evaluate your case? Many cases have a significant litigation risk, where a judge’s ruling can dramatically change the evaluation, such as the duty to defend in an insurance case, or design immunity in a dangerous condition of public property case.
• Are there any insurance issues that need to be determined prior to mediation? Have all the defendants’ insurers been tendered to, have all responded, and are there any that refuse to participate?

BREACH OF CONTRACT CASES

• Do you have a copy of the executed contract and all modifications of the contract?
• Have you read the contract and talked to your client about the terms that are at issue in the case?
• Is there a dispute as to any oral understanding or circumstances of the contract that would lead you to depose opposing parties or witnesses regarding the critical issues (contract formation, alleged breach or consequential damages, for example) prior to the mediation?
• Is there uncertainty in the claims such that you need an accounting of the damages prior to the mediation?
• Are there any terms of the contract, or your proof, that would lead to contradictory results that need to be considered prior to mediation? For example, in an insurance case where one party is seeking reformation of the contract, have you considered that without reformation, your client legally loses the case?
• Is there a settlement construct that resolves the dispute but requires action on the part of one of the parties rather than a simple exchange of money?

PERSONAL INJURY CASES: 

• Have you considered and evaluated the appropriate percentage of comparative negligence?
• Do you have all the medical records and medical bills? Have any of the medical bills been reduced or compromised?
• Is there any “joint and several” liability issues, or Civ. Code §1430 – 1432 (Proposition 51) issues to consider – how does that affect your strategy.
• Are there any liens?
• Do any medical records show pre-existing injuries?

INVESTIGATION and DISCOVERY

• First, determine what information you need to evaluate the case in order for you to advise your client of the range of exposure (or potential recovery) and outcome of the case.
• Consider, will the information you are obtaining likely to sway the mediator (or judge or jury) to your position or convince the other side that they need to resolve the case?
• Determine what information you can get from investigation and what need to get from formal discovery.
• Specifically obtain:

• • Initial written discovery to obtain information and documents.
  • All medical records showing pre-existing injuries.
  • Depositions of all major players especially if is a credibility match, i.e., a “He said/She said” situation.
  • All photographs from that day of the incident if applicable.

• Personally go to the scene of the accident to understand how the accident could have occurred
• Prepare post-incident photographs or diagrams of the scene of the incident.
• Determine if you need to conduct an IME, site inspection or destructive testing prior to the mediation

BRIEFS

• Provide the brief at a minimum five (5) days before the mediation so that the mediators will have time to review the brief, conduct any legal research they may need and possibly do a pre-mediation conference call.
• Prepare your brief as you would prepare your motion papers to the court. You need to convince the mediator to your side as you would a judge or jury, so the mediator can work for you with the other side. If you have exhibits, then highlight the relevant portions.
• Depending on the type of case you have, your brief should contain the following:

• • Timeline of events.
  • A statement regarding liability: Whether you are admitting liability or comparative negligence for the purpose of the mediation.
  • Relevant legal authority, including important legal issues and where they are likely to be raised: Motion for Summary Judgment, Directed Verdict or Motion in limine.
  • Calculation and Total of all damages and offsets for both sides (if applicable), and the net payments from one side to the other.

• Depending on the type of case you have your exhibits should include the following:

• • Color Copies of all photographs.
  • Highlights of pertinent deposition testimony and statements.
  • Highlights of all pertinent information in the police report, medical records, employment records, contracts, etc.
  • Diagrams and photos of accident scene (especially auto accidents).
  • Google maps if relevant.
  • Any expert report you are relying on. This is not an all-inclusive list, but it is a starting point. I welcome others to provide their input and suggestions.

HINT: One retired judge who is now a prominent mediator in the Bay Area says that the first thing you must do is meet with your client and “really listen to what he or she has to say.”

Last November I received the following e-mail:

Since courts are so overwhelmed and setting dates for hearing is now running 6 months or longer, how does one do motions to compel further responses to interrogatories in a meaningful way? I booked the first available date with the court, but it is not until next June and I need the responses in order to know what documents to request. Any ideas? 

It is unfortunate that the California budget crisis has so imploded civil litigation in our courts. Despite the fact that discovery is the heart and soul or your case and you are entitled to compliance with your discovery requests; law and motion departments typically give discovery motions the lowest priority on their calendar. So, what do you do?

One answer is to have a Discovery Referee appointed. Parties can either stipulate to a Discovery Referee pursuant to C.C.P. §638 (pdf) or make a motion pursuant to C.C.P. §639 (pdf). The reference to a Discovery Referee can also be limited in scope to individual issues (i.e., the motion pending, sitting in all depositions, etc.) or for all discovery purposes in the action. The Judicial Council form for the Appointment of a Discovery Referee and the Order appointing the Discovery Referee are easy to use and cost effective.

Below are the legal authorities and the limitations of a court appointed discovery Referee pursuant to C.C.P. §639 (pdf):

I. AUTHORITY

The court has the power to appoint a Discovery Referee pursuant to C.C.P. §639(a)(5) (pdf) which reads as follows:

(a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a Referee in the following cases pursuant to the provisions of subdivision (b) of Section 640 (pdf):

(5) When the court in any pending action determines that it is necessary for the court to appoint a Referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.

II. QUALIFICATIONS AND REQUIREMENTS OF REFEREE

A.Residency in the county is no longer required. [C.C.P. § 640 (pdf), CRC 3.923 (pdf)]

B.The Referee’s certification that he or she is aware of and will comply with applicable provisions of Canon 6 of the Code of Judicial Ethics and with the California Rules of Court. The certification must be filed with the court. [CRC 3.921 (pdf), CRC 3.924(a)(1),(2) (pdf)]

C.In addition to any other disclosure required by law, no later than five days prior to the deadline for parties to file a motion for disqualification of the Referee under C.C.P. §170.6 (pdf) or, if the Referee is not aware of his or her appointment or of a matter subject to disclosure at that time, as soon as practicable thereafter, a Referee must disclose to the parties:

(1)Any matter subject to disclosure under subdivisions (D)(2)(f) and (D)(2)(g) of Canon 6 of the Code of Judicial Ethics; and

(2) Any significant personal or professional relationship the Referee has or has had with a party, attorney, or law firm in the instant case, including the number and nature of any other proceedings in the past 24 months in which the Referee has been privately compensated by a party, attorney, law firm, or insurance company in the instant case for any services, including, but not limited to, service as an attorney, expert witness, or consultant or as a judge, Referee, arbitrator, mediator, settlement facilitator, or other alternative dispute resolution neutral. CRC 3.924 (pdf)

III. DESIGNATION OF REFEREE

Code of Civil Procedure §640 (pdf) lists the procedure that the court is to use in selecting a Discovery Referee if the parties do not stipulate:

A.The court shall appoint as Referee or Referees the person or persons, not exceeding three, agreed upon by the parties.

B.If the parties do not agree on the selection of the Referee or Referees, each party shall submit to the court up to three nominees for appointment as Referee and the court shall appoint one or more Referees, not exceeding three, from among the nominees against whom there is no legal objection. If no nominations are received from any of the parties, the court shall appoint one or more Referees, not exceeding three, against whom there is no legal objection, or the court may appoint a court commissioner of the county where the cause is pending as a Referee.

IV.  ORDER APPOINTING REFEREE

The order appointing a discovery Referee must be in writing [C.C.P. §639(d) (pdf)] and shall include the following:

A.The order must specify that the Referee be appointed pursuant to C.C.P. §639(a)(5). [CRC 3.922(c) (pdf)]

B.The name, business address, and telephone number of the Referee [C.C.P. §639(d)(4) (pdf), CRC 3.922(b) (pdf)]

C.If the Referee is a member of the State Bar, the order must include the Referee’s State Bar number. [CRC 3.922(b) (pdf)]

D.A statement as to the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case. [C.C.P. §639(d)(2) (pdf), CRC 3.922(c)(2) (pdf)]

E.The subject matter or matters included in the reference. [C.C.P. §639(d)(3) (pdf), CRC 3.922(d)(1) (pdf)]

F.Whether the Referee is being appointed for all discovery purposes or only for limited purposes. [CRC 3.922(d)(2) (pdf)]

G.The Referee is authorized to hear and determine discovery motions and disputes relevant to discovery and is further authorized to set the date, time and place for all hearings determined by the Referee to be necessary; direct the issuance of subpoenas; preside over hearings, take evidence; and rule on objections, motions, and other requests made during the course of the hearing. [CRC 3.922(e)(1) (pdf)]

H.The maximum hourly rate the Referee may charge and, at the request of any party, the maximum number of hours for which the Referee may charge. [CRC 3.922(f)(1) (pdf)]

I.Include a finding that

(1)No party has established an economic inability to pay a pro rate share of the referee’s fees; or

(2)One or more parties has established an economic inability to pay a pro rata share of the referee’s and another party has agreed voluntarily to pay that additional share of the referee’s fees; and

(3)When the issue of economic hardship is raised before the referee begins performing services the court must determine a fair and reasonable apportionment of reference costs.  The court may modify its apportionment order and may consider a recommendation by the referee as a factor in determining any modification.

V. POWERS OF THE REFEREE

The powers of a discovery Referee are limited to those granted by statutory authority and cannot be extended by a court order.

A. Discovery Matters California Rule of Court Rule 3.922(e) (pdf) grants the discovery Referee authority to set the date, time, and place for all hearings determined by the Referee to be necessary, to direct the issuance of subpoenas, to preside over hearings, to take evidence and to rule on objections, motions, and other requests made during the course of the hearing.

B. Case Management Conferences In Lu v. Superior Court (1997) 55 CA4th 1264, 1269 (pdf) the court of appeal stated that the Referee doesn’t just assist the trial judge in resolving discovery disputes but the Referee can “work with the attorneys in developing a discovery plan, scheduling discovery in the most efficient, rational and least oppressive manner.”

C. Law and Motion Matters other then Discovery The superior court has no power to assign matters to a Referee for decision without explicit statutory authorization.” Aetna Life Insurance Co. v. Superior Court (1986) 182 CA3d 431, 435-436 (pdf). “Hearing, considering and deciding dispositive motions is not one of the special references authorized by C.C.P. Section 639 which the court may make without consent.” Jovine v. FHP, Inc. (1998) 64 CA4th 1506,1523 (pdf). An assignment of a Referee for a purpose other than one listed in Section 639 is an excess of the court’s jurisdiction and, therefore, voidable. Jovine, supra at 1531-1532.

D. Mediation CRC 3.920 (pdf) states, “A court must not use the reference procedure under Code of Civil Procedure Section 639 to appoint a person to conduct a mediation.” The Fourth District Court of Appeals in Jeld-Wen v. Superior Court (2007) 146 Cal. App. 4th 536 (pdf) ruled that the trial court lacked authority to order parties in a complex civil action to attend and pay for private mediation because such an order conflicted with the statutory scheme pertaining to mediation as set forth in the Civil Action Mediation Program, C.C.P. Section 1775 (pdf) et seq., which emphasized the voluntary nature of mediation.

E. Mandatory Settlement Conferences According to the comment section in CRC 3.920 (pdf) a court can appoint a settlement Referee pursuant to conduct a mandatory settlement conference in a complex case, but the MSC must be held at the courthouse, supervised by the court and at the expense of the county. See Raygoza v. Betteravia Farms (1987) 193 Cal. App. 3d 1592,1595 (pdf)  Also, there is no statutory provision allowing the court to order payment of fees for a settlement Referee. C.C.P. §645.1.pdf titled “Payment of Referees’ Fees” limits the court’s authority to order payment to those Referees appointed pursuant to C.C.P. §639 (pdf).

VI. DISCOVERY REFEREE’S REPORT

A. Recommendations Due C.C.P. 643(a) and (c) (pdf) require the Referee’s to file with the court and serve on the parties a written report within 20 days after completion of the hearing. The report shall include a recommendation on the following:

1. The merits of the any disputed issue;

2. A statement of the total hours spent and the total fees charged by the Referee; and

3. Allocation of payment of the Referee fees.

Remember, the referee’s report is advisory and not determinative.  [C.C.P. Section 644 (pdf)

B.ObjectionsAnyparty may file an objection to the Referee’s report, or within another time as the court may direct. The objection shall be served on the Referee and all other parties. Responses to the objections shall be filed with the court and served on the Referee within 10 days after the objection is served. [C.C.P. §643(c) (pdf)]

C. Review by Court C.C.P. §643(c) (pdf) states that 

 “[t]he court shall review any objections to the report and any responses submitted to those objections and shall thereafter enter appropriate orders. Nothing in this section is intended to deprive the court of its power to change the terms of the Referee’s recommendations, and this overriding power may be exercised at any time, either on the motion of any party for good cause shown or on the court’s own motion.”

“The trial court must independently consider the Referee’s findings before action upon the recommendations.”  Rockwell International Corp. v. Superior Court (1994) 26 CA4th 1255, 1269-1270 (pdf)  A hearing is not required as a matter of law. The review may be done “in whatever manner the trial court deems appropriate.”  Marathon National Bank v. Superior Court (1993) 19 CA4th 1256, 1258.pdf. “Even though the trial court must independently consider the Referee’s findings before acting, the Referee’s recommendations are entitled to great weight.”  Estate of Beard (1999) 71 Cal. App. 4th 753, 777 (pdf).

I don’t make the recommendation to have a Discovery Referee appointed lightly. Having a Discovery Referee can cost the parties thousands if not tens of thousands of dollars. However, if you do not get the discovery you are entitled that would enable you to evaluate and prepare your case for mediation, a motion for summary judgment or for trial, you are doing your client a disservice. Also, resolving discovery disputes tends to resolve the animosity in the case. With the animosity gone, the parties can have effective settlement negotiations. Finally, Discovery Referee fees can be recovered in your Memorandum of Costs if you are the prevailing party.

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 is not enough hours in the day and days in the week.  Unless you have a case that is a simple slip and fall or 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 your 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 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.

Day 105 Before Trial

Last day to file Motion for Summary Judgement/Summary Adjudication

Day 70 Before Trial

Request for Disclosure of Experts to be served

Day 60 Before Trial

Last day for written discovery to be served 

Day 50 Before Trial

Expert disclosure

Day 44 Before Trial

Opposition for MSJ/MSA

Day 40 Before Trial

First day experts can be deposed
Last day to serve non-expert depositions notices

Day 34 Before Trial

Reply for MSJ/MSA

Day 30 Before Trial

Supplemental Expert Disclosure
Last day written discovery can be due
Last day non-expert witnesses can be deposed
Last day Motion for MSJ/MSA can be heard

Day 15 Before Trial

Last day experts can be deposed
Last day for all non-expert discovery motions

Day 10 Before Trial

Last day for expert discovery motions

This timeline does not work in cases involving multiple parties, numerous experts and/or complex factual or legal issues.  You also only have 30 weekdays to take expert depositions.  You are taking these crucial expert depositions without the last of the written discovery responses and non-expert witness testimony.   Throw in a few discovery motions and a motion for summary judgment and you’re swamped.   You then begin wonder when are you going to have time to digest and analyze your case; prepare your motions in limine, the jury instructions, your trial brief and your opening statement; and prep your witnesses?

Discovery deadlines are not set in stone and can be modified.  There are numerous As a discovery referee, I often modify the discovery deadlines to fit the case.  I take into consideration the complexity of the legal issues as well as the number of parties involved.  I ask whether a Motion for Summary Judgment/Adjudication is going to be filed and what discovery needs to be done before it can be filed.  I determine how many experts each party plans to disclose and what additional discovery needs to be completed for the expert to be prepared.  I also keep in mind how much time is it takes to be prepared for trial.  Taking all of the above into consideration, I have prepared a template timeline for the last year before trial in a typical complex case:

 Day 365 before trial

Discovery MUST be opened 365 days before trial

Day 210 before trial

Expert disclosure 

Day 180 before trial

Supplemental expert disclosure

Day 120 before trial

Last day to serve written discovery
Serve supplemental interrogatory
Serve supplemental document request

Day 105 before trial

Last day to serve MSJ/MSA

Day 90 before trial

Written discovery closes
All non-expert depositions close
Expert depositions begin

Day 45 before trial

Last day for all non-expert discovery motions

Day 44 Before Trial

Opposition to MSJ/MSA due

Day 34 before trial

Reply to MSJ/MSA

Day 30 before trial

Last day for expert depositions
Last day for MSJ/MSA to be heard

Day 15 before trial

Last day for expert deposition motions heard.

If this discovery plan or a modification of this plan works for you consider asking the parties in your case to stipulate pursuant to CCP §2016.030 and do it early in the case.  If you get resistance, bring a motion asking the court to establish the sequence and timing of discovery for the convenience of the parties and witnesses and in the interests of justice pursuant to CCP § 2019.020(b).

John Podesta, an insurance coverage attorney in San Francisco, brings us his perspective on why the Form Interrogatories for Construction Defect should be used. John has handled hundreds of coverage cases  involving Construction litigation and other complex matters for over twenty years.  He is a nationally known speaker on Insurance Coverage issues in Construction and has written several articles on the subject.  He is also the author of the insurance Interrogatory 304.1 of Construction Litigation Form Interrogatories.

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It is generally recognized that construction defect cases are some of the most expensive, and complicated, cases being litigated in California.  I have personally been involved in cases with more than 75 payors contributing to a settlement, including contractors, insurers, and sureties.  I have witnessed them from the beginning of the modern Special Master programs in the 1980’s through the single assignment Special Masters (both mediator and case management/discovery referee) and the dual reference (where the case manager/discovery referee and the mediator are separated) and cases with no outside supervision and the case is handled per the CCP.  In all these cases, the same question is asked by the carriers:  “How can we get these cases evaluated and resolved quicker and less expensively?”  And the related question: “If this is a case that needs to be tried how can we get to that decision point as soon as possible?”

There have been many creative approaches to Alternative Dispute Resolution (“ADR”) of Construction Defect, or “CD” cases over the years, but the shortcoming seems to always be that to avoid the large anticipated legal expense, the defense carriers must agree to defend and pay investigation costs, and commit early to a settlement construct before a full investigation into the actual damages.  And, it follows logically, that where some of the defense clients are willing to take that chance, it creates opportunities for less willing players to refuse and reap a short term windfall; in the long term, the lack of fairness dooms the process.

Construction defect cases settle when the claims, damages and insurance picture are known to all the participants, at a time when the anticipated cost of not settling is greater than the present settlement demand.  Or, as a mediator once said: “Every settlement occurs at the intersection of fear and greed.”  Proper information supporting a large damage award increases the fear; proper information concerning recoverability by plaintiff reduces the greed.  Thus, there are two components to every settlement.  The first is difficult to manufacture in an ADR setting:  create an exigency that supports an early settlement, when there may not even be a trial date set or in the near future.  As to the second, adequate information, the Judicial Counsel has presented parties with a golden opportunity to bridge the information gap: Construction Form Interrogatories.  While still somewhat new, and just entering the Lexicon, use and enforcement of this simple tool will document objectively verifiable claims to support settlement decisions, and information on the other payers that are relevant to your allocation decision (other insurance, other subcontractors, etc.).

The first level of information needed is the basic description of the defect and damage claims.  Every decision maker, including general counsel, claim manager or insurance coverage counsel, wants the following information before authorizing (or recommending) a specific settlement amount:

(1) what did your insured/client do at the project in terms of trade and scope of work?

(2) what is a description of the owners’ (or general contractor’s) claims that involve your client or insured;

(3) what is the frequency that the defect or workmanship error occurs throughout the subject project;

(4) what is a reasonable range of the cost to repair the defects and damages and other recoverable costs (if there is an indemnity agreement or amounts recoverable in addition to the cost of repair).

At the same time, the sophisticated client wants to know whether their client/insured is involved in defect issues that involve multiple trades that could create joint and several liability.

The second level of information is allocation: if the client/insured has liability in a given dollar range to justify a settlement, how is that settlement range to be allocated between all of the following players:

(1) each of the sequential insurers for that insured/client if the loss is a continuous injury type;

(2) other insurers that cover the client/insured as an additional insured;

(3) do any of the direct insurers or additional insurers have coverage defenses that increase your specific responsibility; and

(4) what is the insurance or solvency picture for any issue that your client/insured is jointly and several for?  If an insurer that a decision maker believes should be participating has a solid coverage defense it should be factored in immediately.

The general counsel or claim manager needs to accurately estimate a range that will be on his or her check, before he goes to his superiors for settlement authority.  The need for early information illustrates why the new Construction Form Interrogatories should make a significant difference.  Used properly, and assuming the courts will enforce them, they attack both the defective conditions and objective value of the claim as well as the allocation aspects of the claim. 

The Construction Form Interrogatories should be used and insisted upon by insurers and clients for several reasons.  First, they are Judicial Counsel approved, which means that objections as to the form of the question will be overruled, making it more likely to obtain answers without motions to compel.  As the report to the Judicial Counsel from the Civil and Small Claims Advisory Committee reported, the interrogatories were developed by a group of plaintiff and defense lawyers and that the group “reached consensus on almost all of the content of the proposed form with the committee making final decisions on a few minor points that remained in dispute.”  The committee recommendation continues that even where the Case Management Order overseen by a mediator is present, “a set of form interrogatories will already be in existence for the Judicial Officer to approve or select from.”

Use of the Construction Form Interrogatories concurrent with the mediation process will allow for earlier resolution, because of the requirement for verified answers which addresses the inherent skepticism of decision makers being asked to pay significant sums based on unverified lawyers’ claims that in some circumstances seem to have questionable support.  The questions are targeted to the actual information that clients and insurers need to evaluate the claims because they are specific to construction and construction defect litigation.  For example, note the following interrogatory to the plaintiff:

305.1   Do you [homeowner or project owner] attribute any loss of damage to subject property to the facts on which the construction claim or the construction defect claim is based?  If so, for each subject property,

            (a)       Identify the subject property;

            (b)       Describe the nature and location of the loss or damage to the subject property;

            (c)       State when you became aware of the loss or damage;

   (d)      State the amount of damage you are claiming for each piece of subject property and how the amount was calculated.

And, for the contractors, the Scope of Work interrogatory answers the first question that will be asked by any claim manager or client – What did our party do?:

321.2   Describe the scope of work that you[contractor] performed and any materials that you supplied at the subject property.

321.3   Describe all locations on the subject property where you performed work or services (by phase number, unit number, building number or address, or common area description).

321.4   State all dates, including first and last, that you:

            (a)       Performed work or supervision for or at the subject property; or

            (b)       Supplied materials for the subject property.

The Construction Form Interrogatories also address the unique insurance issues present in contractors’ coverage and was specifically designed to get all the relevant insurance information from the developer/general contractor as well as the subcontractors and design professionals.

304.1 requests the following for EACH POLICY in effect from the date of construction forward:

(a)  the policy number or other unique number used by the issuer to identify the insurance policy, and the effective dates of coverage;

(a) the policy number or other unique number used by the issuer to identify the insurance policy, and the effective dates of coverage;

(b)  the kind of insurance or coverage (including without limitation commercial general liability, professional liability, directors and officers, homeowners, property, course of construction, builder’s risk, automobile, or public entity liability protection);

(c)  the policy level and description of any underlying insurance or self insurance that must be exhausted prior to its application (for example, for umbrella or excess insurance, please state the amount of underlying insurance or self-insurance that must be exceeded before the policy applies);

(d)  the name of any person who is or may become a party to this action who may qualify as an insured, an additional insured, or a protected or covered person;

(e)  whether the insurance policy contains a blanket additional insured provision or other provision whereby the person insured (or person protected by the insurance policy) includes any person or entity for whom one Insured or protected person is obligated to provide additional insured coverage in some kind of contract or agreement;

(f)the aggregate and per-occurrence or per-claim limit of liability for each potentially applicable coverage contained in the insurance policy, including the limit the insurer claims is potentially applicable (if less than the limit stated in the policy declarations);

(g)  the limit of any retained amount payable by any insured relative to a claim otherwise covered by the policy, whether by means of a deductible, self-insured retention, deductible indemnity agreement, or retrospective premium provision, and whether the payment of loss and adjustment or defense expense reduces such retention obligation;

(h) whether the insurance policy contains an exclusion barring coverage for damage known to any insured prior to the policy period or barring coverage for damage that first occurred prior to the coverage period.

(i)  whether the indemnity limit of the insurance policy is diminished by the cost of defense;

(j)  whether any controversy or coverage dispute exists between you and the insurer;

(k)  whether the insurer issuing the insurance policy has issued a written reservation of rights; and

(l)  the name, address, and telephone number of the custodian of the policy.

In lieu of responding to items  (a)-(i), Interrogatory 304.1 also gives you the ability to attach a complete and accurate copy of each insurance policy instead as the policy itself is discoverable.  Irvington-Moore v. Superior Court (1993) 14 Cal App 4th 733, 737.  While each insurer has their own proprietary reasons to resist, the case will not settle without reasonable disclosure of the above insurance information.

Once the insurance picture is known the parties can resolve the allocation between the contractors and their insurers.  Once the developer or general contractor, who remains vicariously liable to the plaintiff for damages caused by all of the subcontractors, understands the insurance picture of all the contractors, and once the plaintiff understands the insurance picture and recoverability potential, expectations are adjusted appropriately.  The same goes for each subcontractor; if a claims manager thinks that his “time on the risk” is minimal, but all the other insurers have valid defenses, it will affect his evaluation.  This kind of information is often obtained informally and at the last minute…right before the case settles(!)

Finally, how does a client or an insurer take steps to get the information in their file? For clients and insurers one way would be consistent litigation guidelines, combined with the “power of the purse”.  In California, mediation is a voluntary process.  A client cannot be compelled to mediate.  There should be minimal impact on the case as a whole, if the client or insurer is clear that the Construction Form Interrogatory information must be obtained before mediation.  If an insurer has several contractors in the lawsuit, a typical scenario, it can exert more influence over the process that can only help the insureds in the long run.  If a majority of the contractors and insurers insist upon the information, it will start being obtained as a matter of course.  Obviously, to avoid unnecessary expense and disruption to an ongoing case, the insurer/client’s insistence on the use of form interrogatories and/or their equivalent should be voiced early and clearly.

Of course, the court or the discovery referee must grant approval to the use of Construction Form Interrogatories if the lawsuit involves more than six single family homes.  While court approval, or discovery referee approval is needed, I submit that in any construction defect claims, an analysis and disclosure of the actual claims and insurance information is not only advisable, it is critical to resolution of any medium to large case.

Nothing in the Construction Form Interrogatories prevents “peripheral parties” from settling.  While some mediators and referees are better at separating the main  players from the “peripheral” ones, attempts to remove the smaller players oftentimes devolve into information gaps.  The proper use of form interrogatories, even in these circumstances, will likely push the parties towards settlement sooner, which means a reduction in legal expense.

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

Furthermore, the Discovery Act does not authorize such a preamble or general objections. Instead the Discovery Act requires the party to respond in writing to each interrogatory, request for production of document and request for admission whether it is a response or an objection. The relevant code sections demonstrating a party’s obligations in responding to these discovery devices are below with emphasis added:

INTERROGATORIES

§ 2030.210. Written responses to interrogatories; How made; Format

(a) The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:
(1) An answer containing the information sought to be discovered.
(2) An exercise of the party’s option to produce writings.
(3) An objection to the particular interrogatory.
(b) In the first paragraph of the response immediately below the title of the case, there shall appear the identity of the responding party, the set number, and the identity of the propounding party.
(c) Each answer, exercise of option, or objection in the response shall bear the same identifying number or letter and be in the same sequence as the corresponding interrogatory, but the text of that interrogatory need not be repeated

§ 2030.220. Completeness of responses to interrogatories

(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.
(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.
(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.

§ 2030.240. Answer to unobjectionable portion of interrogatory; Objection and grounds therefor

(a) If only a part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered.
(b) If an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response. If an objection is based on a claim of privilege, the particular privilege invoked shall be clearly stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS

§ 2031.210. Nature and format of response

(a) The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:
(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.
(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.
(3) An objection to the particular demand for inspection, copying, testing, or sampling.
(b) In the first paragraph of the response immediately below the title of the case, there shall appear the identity of the responding party, the set number, and the identity of the demanding party.
(c) Each statement of compliance, each representation, and each objection in the response shall bear the same number and be in the same sequence as the corresponding item or category in the demand, but the text of that item or category need not be repeated.
(d) If a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. By objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the responding party preserves any objections it may have relating to that electronically stored information.

§ 2031.220. Statement regarding compliance in whole or in part

A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.

§ 2031.230. Representation of inability to comply

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

§ 2031.240. Statement of compliance or inability to comply when part of demand objectionable; Legislative intent regarding privilege log

(a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.
(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:
(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.
(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.
(c)
(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.
(2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.

REQUESTS FOR ADMISSION

§ 2033.210. Response in writing; Format
(a) The party to whom requests for admission have been directed shall respond in writing under oath separately to each request.
(b) Each response shall answer the substance of the requested admission, or set forth an objection to the particular request.
(c) In the first paragraph of the response immediately below the title of the case, there shall appear the identity of the responding party, the set number, and the identity of the requesting party.
(d) Each answer or objection in the response shall bear the same identifying number or letter and be in the same sequence as the corresponding request, but the text of the particular request need not be repeated.

§ 2033.220. Completeness of responses; Reasonable inquiry
(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.
(b) Each answer shall:
(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.
(2) Deny so much of the matter involved in the request as is untrue.
(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.
(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.

§ 2033.230. Objections to part of request; Grounds for objections
(a) If only a part of a request for admission is objectionable, the remainder of the request shall be answered.
(b) If an objection is made to a request or to a part of a request, the specific ground for the objection shall be set forth clearly in the response. If an objection is based on a claim of privilege, the particular privilege invoked shall be clearly stated. If an objection is based on a claim that the matter as to which an admission is requested is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

As can be seen from the relevant statutes regarding responding to interrogatories, requests for production of documents and requests for admissions, a party cannot use a general objection to protect them like an umbrella from their own failure to raise appropriate objections to specific questions. Once the general objection is disregarded, a responding party’s objections to the specific interrogatory or request is either made, or the objections are deemed waived.

NEXT:   Why you should bring a Motion to Strike General Objections

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:

These responses are made solely for the purposes of this action.   In responding to any request or part thereof, the Responding Party does not concede the relevancy of the request or of the subject to which that request refers.  The specific response to any request is made expressly subject to, and without in any way waiving or intending to waive, any objections as to the competency, relevancy, privilege or admissibility of evidence for any other purpose, of any of the documents referred to or of the response or objections given herein or the subject matter thereof, in a proceeding including trial of this action, or in any other subsequent proceedings.  These responses are made specifically subject to the right to object to any discovery proceeding involving or relating to the subject matter of the request.

The Responding Party has not completed his investigation of the facts related to this action nor has he completed his preparation for trial in this case.  Thus, all responses or objections to the Production Request are given without prejudice to the Responding Party’s right to produce evidence of any subsequently discovered facts, and of any and all further information as such becomes known to him.  

It is anticipated that further discovery, independent investigation, legal research and analysis may supply additional facts, add meaning to the known facts, as well as establish entirely new factual conclusions and legal contentions, all of which may lead to additions, modifications of, and variations from the response set forth herein.  

The following responses are given without prejudice to the right to produce evidence of any subsequently discovered fact or facts with the Responding party may later recall.  Without acknowledging any duty to do so except as required by law, the Responding Party accordingly reserves the right to amend any and all responses herein as additional facts are ascertained, analyses are made, legal research is completed, and contentions are made.  The responses contained herein are as complete and straightforward as the information reasonably available to the Responding Party in relation to further discovery, research or analysis.

The Responding Party objects to the production request to the extent that it purports to impose obligations upon the Responding party which are other then or in addition to, the requirements of the California Constitution, the California Code of Civil Procedure (“C.C.P.”) and applicable case authority.

The Responding Party further objects to the [Form Interrogatories, Request for Production of Documents, Requests for Admissions] production requests to the extent that the definitions and instructions provided in Petitioner’s request are vague, ambiguous, and are beyond the scope of permissible discovery.

Without waving any of the above objections…

If you read this preamble closely, you can see that it relieved the responding party of all obligations required by the Discovery Act.  It also gave the responding party the ability to modify the response and raise any objection at any time including trial with no ramifications.  In other words, you have worthless discovery responses that the responding party cannot be bound to.

The Code of Civil Procedure and the current case law make it very clear that:

 There is no such thing as a “General Objection”

A party has an obligation to respond to discovery in good faith.

A party is required to make a “diligent search” and a “reasonable inquiry” when responding to requests for production of documents.

A party must object separately to each interrogatory, request for admission and request for production of documents.

Failure to timely raise an objection to any interrogatory, request for admission or request for production of documents waives the objection.

A party is required to provide a privilege log for each document that is being withheld on the claim of relevancy or privilege.

A party’s discovery responses are admissible against them.

The court can order monetary, issue or evidence sanctions for a party’s failure to respond in good faith to any interrogatory, request for admission or request for production of documents.

Moral of the Story:      You need to bring a motion to strike any “General Response and Objections” so the responding party can be held accountable for their responses.   You don’t want a court to tell you that you have waived your rights by not bringing such a motion.

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.

I don’t know whether the attorney for the cross-defendant was playing games or   under a misconception about the law, but I do know that the lawyer didn’t do his homework when he asserted garbage objections.  My response to this inquiry was as follows:

(1)    Discovery may be sent to “any other party” to the action.  See:

C.C.P. §2025.010                 Depositions

C.C.P. §2030.010(a)           Interrogatories

C.C.P. §2031.010(b)            Demand for Inspection

C.C.P. §2025.010                Request for Admission

(2)    Discovery “Holds” are only for the onset of the case.  See Weil and Brown Civil Procedure Before Trial ¶8:39.1 and also see my “California Civil Discovery–Charts for the Everyday Litigator” which shows when discovery commences for each party regarding each discovery device.

The right to discovery does NOT depend on the status of the pleadings.  In Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 CA3d 1429, 1436 sanctions were upheld for refusal to make discovery because the demurrer was pending.  In Budget Finance Plan v. Superior Court (1973) 34 CA3d 794, 797, the Court of Appeal found that discovery may continue after a demurrer has been sustained with leave to amend, although an amended complaint had not yet been filed.  See Weil and Brown, Civil Procedure Before Trial (TRG 2015)  ¶8:58 – 8:59.1.

(3)    The issue is not that the party is living in a foreign country, but whether he is a citizen of another country.  According to Weil and Brown Civil Procedure Before Trial (TRG 2015) at ¶8:46-53 the controlling case is Societe Nationale Industrielle Aerospatiale v. United States District Court (1987) 482 US 522, 546. That case says that when seeking discovery from foreign litigants or witnesses the American trial court must exercise “special vigilance” to protect them from discovery abuse.  “Their objections to discovery should receive ‘most careful consideration’ to demonstrate ‘due respect’ for any special problem confronted by the foreign litigant on account of its nationality or the location of its operation and for any sovereign interest expressed by a foreign state.”   Societe, supra at 546

Whether the discovery is abusive is determined by the trial court based on the particular facts of the case as well as the foreign interests involved.  See Societe, supra at 546

Weil and Brown also point out that the “Hague Convention is merely a permissive supplement—not a replacement—for other means of discovery.  It is up to American courts to decide whether parties should be required to use these procedures in lieu of discovery.”  See Weil and Brown Civil Procedure Before Trial (TRG 2015)¶8:50 citing Societe, supra at 536 and American Home Assurance Company v. Societe Commerciale ToutElectric (2002) 104 CA4th 406, 425

For a more extensive review regarding the discovery of foreign nationals see California Civil Discovery Practice (CEB 4th Edition, 2015) Chapter 13 titled “Discovery in other Nations” and Julie Brook’s blog, “6 Steps to Take Before Traveling into the World of Foreign Discovery”.

Unlike Federal Rule Civil Procedure 26(e)(1) – (2), California law does not impose a continuing duty on a party to supplement their interrogatory or document responses.  Biles v. Exxon Mobil Corp. (2004) 124 CA 4th 1315.  Instead, the California Discovery Act has two statutes, C.C.P. §2030.070 and C.C.P. § 2031.050, that allow the propounding party to ask for updated information “bearing on answers already made” and “later acquired or discovered documents, tangible things, land or other property.”

These statutes read as follows:

§ 2030.070.  Supplemental interrogatory to elicit later acquired information bearing on previous answers; When permitted

(a) In addition to the number of interrogatories permitted by Sections 2030.030 and 2030.040, a party may propound a supplemental interrogatory to elicit any later acquired information bearing on all answers previously made by any party in response to interrogatories.

(b) A party may propound a supplemental interrogatory twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 (commencing with Section 2024.010), once after the initial setting of a trial date.

(c) Notwithstanding subdivisions (a) and (b), on motion, for good cause shown, the court may grant leave to a party to propound an additional number of supplemental interrogatories.

§ 2031.050.  When supplemental demand may be propounded

(a) In addition to the demands for inspection, copying, testing, or sampling permitted by this chapter, a party may propound a supplemental demand to inspect, copy, test, or sample any later acquired or discovered documents, tangible things, land or other property, or electronically stored information in the possession, custody, or control of the party on whom the demand is made.

(b) A party may propound a supplemental demand for inspection, copying, testing, or sampling twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 (commencing with Section 2024.010), once after the initial setting of a trial date.

(c) Notwithstanding subdivisions (a) and (b), on motion, for good cause shown, the court may grant leave to a party to propound an additional number of supplemental demands for inspection, copying, testing, or sampling.

Timing is Everything.  

The timing of when to serve the supplemental requests is crucial.  Many cases are resolved within one or two years and may never need a supplemental response.  However, in more complex cases that last years, you will need to determine whether there have been changes in your opponent’s theories of liability, defenses, increased damages, declining insurance proceeds, as well as a myriad of other issues that could arise.  Some key times to serve the requests for supplemental responses are:

Twice Before Initial Trial Set:

1. The anniversary of the first discovery propounded and every year thereafter, like clockwork.

2. After mediation, to discover whether opposing counsel’s position can be substantiated.

3. Prior to the deposition of a party or a person most knowledgeable (qualified).

4. Prior to serving a motion for summary judgment/summary adjudication, so you know whether the opposing party has information that could defeat your motion.

5. When served with a motion for summary judgment/summary adjudication.  This must be done as soon as possible so you have the information prior to the filing of your opposition.

6. Just before the trial set conference.

Once After Trial Set: 

1. Serve supplemental interrogatory and demand 100 days before trial so you will have the responses to give your expert before he testifies.

2. If you have a long trial set or your trial date has been continued, consider bringing a motion for additional supplemental interrogatories and requests.  See C.C.P. §§ 2030.070(c) and 2030.050(b)

Advantages:

Using the supplemental interrogatories in a timely and efficient matter also avoids your need to serve special interrogatories that could most likely trigger objections if you serve more than 35 and/or are too similar to the initial interrogatories.

If the opposing party responds “all answers remain the same” to the supplemental requests then, at trial, you can file a motion with the court to exclude the introduction of any information that was not previously disclosed in discovery.  This is extremely helpful when no information was previously disclosed because the party made garbage objections and claims of privileges.

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?”

The court is correct that a Motion to Strike pursuant to C.C.P. §435 and C.C.P. §437 is about the pleadings even though the request  “Move to Strike” is often used in discovery (i.e, portions of a declaration, objections in a deposition) even though it is not codified.  However, I have never seen a court refuse to deal with a discovery issue based on semantics of the notice.  In fact, according to Weil and Brown,  Civil Procedure Before Trial (TRG 2015) 9:2.3 citing Sole Energy Co. v. Petrominerals Corp. (2005) 128 CA4th, 187, 192-193 the “label“ of the motion is not determinative.

Propounding parties are in a Catch-22 situation.  There is no provision allowing the General Objections or a Preliminary Statement in a discovery response so there is no remedy for it.  The following is my rationale for recommending the filing of such a motion with your motion to compel further responses.

• The Code does not allow for general objections or preliminary statements.  A party must respond to the individual interrogatory or request and that includes any objection.  See my blog article “What is a General Objection?“

• Each written discovery device allows a party to bring a motion to compel further responses if an objection is “too general.” See C.C.P. §2030.300 and C.C.P. §2031.310.

• C.C.P. §2023.010(e) says it is a misuse of the discovery process if a party makes an unmeritorious objection to discovery.

• C.C.P. §2023.010(f) says it is a misuse of the discovery process for making an evasive response to discovery.

• C.C.P. §2023.030 gives the court power to issue monetary, issue and evidence sanctions on a party for misuse of the discovery process.

Procedurally speaking the proper motion to bring is a Motion to Compel Further Responses pursuant to C.C.P. §2030.300 and C.C.P. §2031.310 with a Request for Sanctions for violation of C.C.P. §2023.010(e) and  C.C.P. §2023.010(f).In that motion, a party should:

• Point out to the court that the General Objections and Preliminary Statements are not proper and ask the court to overrule the objections or strike them from the response as improper.

• Emphasize to the court that responding party’s response to interrogatories “shall be as complete and straightforward as the information reasonably available to the responding party permits” and when responding to a document request a party must do a diligent search and make a reasonable inquiry before responding.

• Also, point out to the court that it is the burden on responding party to justify objections.  See Weil and Brown Civil Procedure Before Trial (TRG 2015) 8:1178.1 citing Coy v. Sup. Ct. (1962) 58 C2d 210, 220-221 and Fairmont Insurance Co. v. Superior Court (2000) 22 C4th 245, 255

• Request the court require a further response with a ruling that responding party is forbidden to use General Objections or Preliminary Statements in any of their responses.

• Finally, stress to the court that you are entitled to sanctions.

To answer the attorney’s question “Is the Court correct?”  In my opinion, No!  The court has the “inherent authority to manage and control its docket” and should have ruled on the merits regarding defendant’s improper General Objections and Preliminary Statement.

The post DISCOVERY GAMES AND MISCONCEPTIONS – Is the Court Correct That There is No Motion to Strike in Discovery? appeared first on Resolving Discovery Disputes.

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).

The case of Biles v. Exxon Mobil Corp. (2004) 124 CA4th 1315 is an example of the court’s misunderstanding of the Discovery Act and reacting erroneously to a garbage discovery response.  The facts are as follows:

Defendant Exxon served a special interrogatory asking plaintiff to identify “each person who has knowledge specifically of the work at [the Humble refinery] that you contend created your exposure to asbestos fibers.”

Plaintiff responded:  “ After a reasonable and good faith inquiry, plaintiff currently has no further information responsive to this Interrogatory.  Plaintiff expressly reserves the right to amend or supplement this Response based on the outcome of such investigation.  Plaintiff’s investigation and discovery are continuing.”

Five months later, Exxon filed a motion for summary judgment.  Plaintiff’s opposition to the summary judgment included a declaration from a witness, which should have arguably defeated Exxon’s motion.  Exxon objected to the declaration of the witness on the ground that the witness had not been identified in plaintiff’s interrogatories responses.  The court sustained the objection and granted motion for summary judgement to Exxon.  The court rationalized its decision to strike the declaration stating:

“Look, when you answer an interrogatory and you don’t give any names at all but say you are going to supplement it, the obligation is on you to supplement it as soon as you find out.”

The First District Court of Appeal reversed the trial court on three grounds: (1) there was no evidence that plaintiff’s initial response was willfully false at the time it was served, (2) there is no obligation to supplement without a court order [or having been served with a supplemental interrogatory] and (3) the appropriate sanction if there was any discovery abuse, absent unusual circumstances or a violation of court order, was monetary sanctions, not evidence sanctions.

It took a year for the Court of Appeal to right this wrong and probably thousands of dollars in attorney time that the attorney probably wrote off.  All because of the unnecessary language,  “Plaintiff expressly reserves the right to amend or supplement this Response based on the outcome of such investigation,” included in the discovery response, and due to plaintiff’s encounter with a judge who didn’t know the finer points of the Discovery Act (or ignored them).

The post The Pitfalls of Bad Discovery Habits appeared first on Resolving Discovery Disputes.

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 .

The case involved an auto accident in which plaintiff was injured.  Defendant served Judicial Council Form Interrogatories which included Interrogatory No. 12.1.   Interrogatory No. 12.1, which is  under the 12.0 Investigation—General Series, reads as follows:

12.1 State the name, ADDRESS, and telephone number of each individual

(a)  who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT;

(b) who made any statement at the scene of the INCIDENT;

(c) who heard any statements made about the INCIDENT by any individual at the scene; and

(d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).

In her answers to this interrogatory, plaintiff only identified one witness.  Subsequently plaintiff identified three other witnesses whom she intended to call at trial to describe her how the accident affected her physically and how it impacted on her ability to do her job.  The trial court granted defendant’s motion in limine to exclude the testimony of the three witnesses for plaintiff’s failure to divulge their identity in the responses and supplemental responses to interrogatory 12.1.

The Second District Court of Appeals found that the trial court abused it’s discretion stating:

We read interrogatory No. 12.1 to seek the identities of percipient witnesses, witnesses who were at the scene immediately before or after the accident, those privy to statements by percipient witnesses to an accident and those who might have personal knowledge of the accident itself. The interrogatory does not seek the identity of witnesses—such as those whose testimony was excluded by the trial court—who may testify to the physical injuries or physical disabilities suffered by a plaintiff as a result of the accident. Our view that interrogatory No. 12.1 should be narrowly construed to refer to witnesses of the incident itself is bolstered by other form interrogatories, in particular Nos. 12.4 and 16.1, which distinguish between an “incident” and a plaintiff’s “injuries.”

Moreover, exclusion of a party’s witness for that party’s failure to identify the witness in discovery is appropriate only if the omission was willful or a violation of a court order compelling a response. (See Code Civ. Proc., §§ 2023.030, CCP 2030.290, subd. (c), 2030.300, subd. (e); see also Saxena v. Goffney (2008) 159 Cal. App. 4th 316, 333-335 [71 Cal. Rptr. 3d 469]; Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 273–275 [105 Cal. Rptr. 276].) Even if interrogatory No. 12.1 could be construed as a request for the identity of witnesses who would testify to post-accident physical disabilities and difficulties, there was no evidence that plaintiff’s failure to identify the witnesses was willful or that plaintiff contravened a court order to provide discovery.

Accordingly, it was error to impose an evidence sanction based on plaintiff’s failure to divulge the names of the three witnesses in response to interrogatory No. 12.1 or to defendant’s general request for supplemental responses to interrogatories.

HELPFUL HINT: Trial Departments are frequently removed from discovery battles and may not be familiar with the subtleties of the Discovery Act.  Nonetheless, this case and the Biles v. Exxon Mobil Corp (2004) 124 CA4th 1315 that I wrote about in “The Pitfalls of Bad Discovery Habits” are examples of trial courts’ misunderstanding of what a court needs to find before they can impose evidence sanctions. Keep both cases handy as they are important if you are ever opposing a motion in limine to exclude evidence that you didn’t produce during discovery.

The post The Interrogatory Says What it Says appeared first on Resolving Discovery Disputes.

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.

As you know, a Motion for Summary Judgment and/or Summary Adjudication must be supported by admissible evidence. See C.C.P. §437c(b)(1). The moving party must present admissible evidence in support of each undisputed material fact necessary to entity them to judgment (or adjudication of the issue) in their favor. Therefore, if there is no admissible evidence with regard to a material fact, the motion will be denied. The discovery devices listed in order of most the useful to least useful for these motions are:

(1)       Requests for Admissions

(2)       Depositions

(3)       Interrogatories

(4)       Requests for Production of Documents.

Requests for Admissions are the most useful. The main purpose of Requests for Admissions is to set issues to rest by compelling admissions of things that cannot reasonably be controverted.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2015), ¶8:1256, citing Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 C3d 256, 261. If a party admits key facts, including legal conclusions, and/or authenticates documents you are in a better position to win a motion for summary judgment or summary adjudication.  Because a party can deny a request for admission, you should also be serving Form Interrogatory #17.1 as well as a Document Request asking for all documents listed in Form Interrogatory #17.1(d) to make sure that any questionable or frivolous denials are exposed.  See my blog “How to Write Requests for Admissions.”

Depositions are the “next best” discovery method after Request for Admissions. If there are facts, documents, etc. that require an explanation the witness with knowledge is the best means of obtaining this evidence, especially when your opposing counsel provides evasive or non-responsive answers to written discovery. However, the lawyer must be careful to ask precise questions so that there is a clear question and answer for purposes of supporting one or more facts in the separate statement.

Interrogatories are the third most useful discovery device. Interrogatories are good for establishing the basic nature of claims being presented, witnesses that might be available or other such broad based questions. They are usually not precise enough to support Motions for Summary Judgment, except when they are incredibly narrow. However, where the Motion for Summary Judgment is based on an absence of evidence that the opposing side has to support their case, an interrogatory may be useful to show that they were given ample opportunity to present that evidence.

Requests for Production of Documents, while essential, are only preliminary. One mistake young lawyers make (and some older ones) is that they believe if a party produces a document it is admissible in evidence. In fact, the Production of Documents even with a verification neither authenticates any document nor establishes the statements made therein.  Thus, it is important to follow up by using the Judicial Council Form Request for Admission and ask for authentication of documents, in addition to obtaining an admission that the document was, for example, sent by mail in the ordinary course of business to establish that the document was not heresy.

One common pitfall lawyers often make in filing a Motion for Summary judgment/summary adjudication is the timing. These motions require an exorbitant amount of time for notice–75 days (plus five for mailing). The last day these motions can be heard is 30 days before trial. Thus the last day to file a Motion for Summary Judgment and/or Summary Adjudication is 105 Days before Trial–that is before expert disclosure (50 days before trial) and the  discovery cutoff (30 days before trial).

Moral of the Story:  The decision to file a Motion for Summary Judgment and/or Summary Adjudication must be considered early in a case so you have adequate time to develop a discovery plan and obtain the discovery you need to file a successful motion.

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.

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

3. Screaming that the proof of service was not signed.

Having received a document with an unsigned proof, opposing counsel will sometimes write to me to say something like, “we do not accept that your service was proper because the proof of service was UNSIGNED!!” (This is why I suspect this bad litigating comes from a seminar or “how to” book, because “unsigned” is always in all caps with two exclamation points.) Even more humorous, I have had cases where opposing counsel argued in opposition to a motion that the motion should be disregarded because the proof of service is unsigned and therefore there is no verification that the motion (they are responding to) was ever served. In the case just cited, opposing counsel wrote to say the discovery obviously must have been served late, “as evidenced by the fact that the proof of service is UNSIGNED!!”

Again, allow me to walk you through this so you won’t look foolish like this attorney.

When you file a document with the court or send discovery to the opposition, you prepare a proof of service attesting to the fact that you mailed – past tense – the document to opposing counsel. How can I make that stand out more? You are attesting that you mailED, mailED, mailED the document. If you sign the proof of service before you mail the document, you are perjuring yourself. If the proof of service you send to opposing counsel is signed, then that means you signed the proof of service, attesting that you mailed the document, before you actually mailed the document.

Yes, I get how it works in the real world and why 90 percent of attorneys do it wrong. The attorney prepares the court document and gives it to the secretary. The secretary prepares and signs the proof of service, makes copies, and then puts the original in the attorney service basket, mails a copy to opposing counsel, and keeps one copy for the file. But that is not proper service. We properly serve all documents with UNSIGNED!! proofs of service, so it can be done. Every court document you send to opposing counsel should have an UNSIGNED!! proof of service.

If you still cannot accept what I am saying because it so challenges your cherished beliefs, here is an official website from a Superior Court backing me up (item 3). Better yet, here is the official proof of service by the Judicial Council, with instructions on how to serve someone, specifically stating in item 3b that the proof of service sent to the other side must be unsigned.

Or, I don’t know, how about if we just check the Code of Civil Procedure that sets forth the rules for service. CCP § 1013(b) states:

The copy of the notice or other paper served by mail pursuant to this chapter shall bear a notation of the date and place of mailing or be accompanied by an UNSIGNED!! copy of the affidavit or certificate of mailing.

There is identical language for service by fax and email.

You can read Aaron Morris’ nine other pet peeves in his article “Don’t be that Attorney—Ten Ways to Make Yourself Look Foolish”

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.

Weil and Brown’s California Practice Guide: Civil Procedure Before Trial (TRG 2017) at 8:82 and 8:83 reads as follows:

[8:82] “Any discoverable matter”: Section 2017.010 et seq. Includes witnesses with “knowledge of any discoverable matter” . . . i.e., fact or opinion [Gonzales v. Sup. Ct. (City of San Fernando), supra, 33 CA4th at 1546, 39 CR2d at 901 (citing text)]

[8:83] Credibility: information regarding the credibility of witnesses is also discoverable: e.g., grounds for impeachment evidence of bias, etc. The credibility of their statements or testimony is itself “relevant to the subject matter.”

California Civil Discovery Practice Fourth Edition (2017) states:

The identity and location of persons who are not experts but who may have Knowledge of any discoverable matter is relevant to the subject matter of the litigation and is discoverable.  CCP §2017.010; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 C4th 360, 374 

“Our discovery recognizes that ‘the identity and location of persons having [discoverable] knowledge’ are proper subjects of civil discovery”: contact information about identity of class members generally discoverable.

Such persons may be actual witnesses to an event in dispute, or they may have knowledge that is based on heresay See Smith v. Superior Court (1961) 189 CA2d 6, 12; City & County of San Francisco v. Superior Court (1958) 161 CA2d 653, 656

In some cases, the identity of persons who have no information on the specific facts of a case may still be relevant to a claim regarding the opposing party’s regular business practices . . . Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 C3d 785.

In the case of Puerto v. Superior Court (2008) 158 CA4th 1242, the Second District Court of Appeal dealt with the issue of right of privacy for third parties stating:

The fact that we generally consider residential telephone and address information private does not mean that the individuals would not want it disclosed under these circumstances.  ‘While it is unlikely that the employees anticipated broad dissemination of their contact information when they gave it . . . they may reasonably be supposed to want their information disclosed to counsel whose communications in the course of investigating the claims asserted in this lawsuit may alert them to similar claims they may be able to assert. . .

Here, just as in Pioneer, the requested information, while personal, is not particularly sensitive, as it is merely contact information, not medical or financial details, political affiliations, sexual relationships, or personnel information (See, e.g., Pioneer supra, 40 Cal.4th at 372-373; Hooser v. Superior Court (2000) 84 Cal. App. 4^th 997, 1004 [101 Cal. Rptr. 2d 341].) This is basic civil discover . . . Nothing could be more ordinary in discovery than finding out the location of identified witnesses so that they may be contacted and additional investigation performed.  (Planned Parenthood, supra, 83 Cal App. t p. 359 [home addresses and telephone numbers are ‘routinely produced during discovery”].)  As the Supreme Court pointed out in Pioneer, the information sought by petitioners here–the location of witnesses –is generally discoverable, and it is neither unduly personal nor overly intrusive. (Pioneer, at p. 373.)

Indeed, it is only under unusual circumstances that the courts restrict discovery of nonparty witnesses’ residential contract information.

Discovery may be prohibited where the information violates the right to privacy and is not necessary to the prosecution of the matter.  [Emphasis added]

RULE OF THE DAY:      You have the right to discover the identity and location of witnesses barring unusual circumstances and the information not being necessary to prosecute your case.

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 4^th 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 4^th 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.