Gonsalves v. Li (2015) 232 Cal.App.4th 1406 (Gonsalves) involved an automobile accident. Plaintiff called defendant as an adverse witness and asked about his qualified denials of plaintiff’s RFAs that he was responsible for the accident. And in closing argument, plaintiff emphasized that the denials were evidence defendant refused to take responsibility for plaintiff’s injuries. (Id. at p. 1413.) The jury returned a verdict for plaintiff for $1,208,642.86. (Id. at p. 1411.) Our colleagues in Division Five reversed, holding it was error for the trial court to allow questions about RFAs.
that it was improper to ask at deposition “ ‘legal contention questions,’ ” which questions were condemned as requiring the party “ ‘to make a “law-to-fact” application that is beyond the competence of most lay persons.’ ”
(Gonsalves, supra, 232 Cal.App.4th at p. 1415.) These concerns, the court concluded,
“apply to the use of qualified denials to RFA’s in the examinations here. Li was asked to explain ‘by memory and on the spot’ and without the ability to consult with his attorney why he took the legal position that he could not admit or deny certain RFA’s without further inquiry. And he was asked to do this not in a deposition, as in Rifkind, but in front of the jury.” (Id. at pp. 1415–1416.)
And the court went on to hold: “The weight of authority in other jurisdictions also favors Li’s position. Massachusetts’s highest court interpreted a statutory scheme similar to California’s and concluded that denials to RFA’s are not admissible evidence at trial: ‘The purpose of [RFA’s] is to narrow the issues for trial by “identifying those issues and facts as to which proof will be necessary.” [Citation.] A denial . . . is not a statement of fact; it simply indicates that the responding party is not willing to concede the issue and, as a result, the requesting party must prove the fact at trial. [Citations]. The sanction for improperly responding to [RFA’s] is the shifting of the award of incurred expenses[—see rule 36(a) of the Massachusetts Rules of Civil Procedure]. [¶] Further, [Massachusetts Rules of Civil Procedure, rule 36(b)], which governs [RFA’s], does not specifically provide for the admission of denials in evidence. Although the rule states that admissions are conclusively binding on the responding party, it makes no parallel provision for the use of a denial. By contrast, [Massachusetts Rules of Civil Procedure, rule 33(b)], governing interrogatories, states that the answers to interrogatories “may be used [at trial] to the extent permitted by the rules of evidence.” The omission of a similar provision in rule 36(b) indicates that, although admissions have binding effect, denials do not have such an effect and cannot be introduced in evidence.’ [Citation.] Therefore, the trial court ‘incorrectly concluded that a denial of a request for admission is admissible as a prior inconsistent statement’ to impeach a witness at trial. [Citation.]” (Gonsalves, supra, 232 Cal.App.4th at p. 1416, fns. omitted.)
Finally, Gonsalves noted that appellate courts in at least three states have similarly held that denials of RFA’s are inadmissible at trial, citing to Winn Dixie Stores, Inc. v. Gerringer (Fla.Dist.Ct.App. 1990) 563 So.2d 814, 817; Mahan v. Missouri Pacific Railroad Co. (Mo.Ct.App. 1988) 760 S.W.2d 510, 515; and American Communications v. Commerce North Bank (Tex.App. 1985) 691 S.W.2d 44, 48.) (Gonsalves, supra, 232 Cal.App.4th at pp. 1416–1417.)
The purpose of discovery is to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary. Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1 citing Greyhound Corp. v. Superior Court (1961) 55 C.2d. 335, 376.
Serving “[a]ppropriate written interrogatories are one of the means to accomplish the general goals of the discovery process designed to facilitate a fair trial.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 CA4th 377, 389)
“Interrogatories expedite the resolution of lawsuits … [by detecting] sham claims and defenses … [and] may be employed to support a motion for summary judgment or a motion to specify those issues which are without substantial controversy.” Deyo v. Kilbourne (1978) 84 CA3d 771, 779
Unfortunately, the propounding party often receives responses to their interrogatories that include a “General Objection” or a “Preliminary Statement”, which is improper, and garbage objections with no substantive responses. Responding parties even use garbage objections to Form Interrogatories which were drafted by the California Judicial Council (The Administrative Office of the Courts) and considered objection proof as to form. See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:933.
It is patently obvious ungrounded refusal to answer, prolonged delay and incorrect answers to interrogatories seriously inhibit “the principal aim of discovery procedures in general [which] is to assist counsel to prepare for trial….” Smith v. Circle P. Ranch Company, et al. (1978) 87 Cal.App.3d 267, 273.
Bring your motion to compel further responses to interrogatories as you are entitled to proper responses and, hopefully, the court will make it clear to the responding party that such abuse of the discovery process will not be tolerated.
It’s not required that a party amend interrogatory responses to reflect information the party got after responding, but there are situations in which a party may want to do just that.
Here’s why it may be a good idea to amend interrogatory responses:
Don’t make it look like you’re concealing facts. If you or your client learn new information, immediately file amended interrogatory. The court may view a failure to do so as a deliberate attempt to conceal known facts. And when a party deliberately conceals known facts in the answers to interrogatories, it may be subject to imposition of sanctions. See CCP §§2023.010–2023.040, 2030.300(d)–(e).
Avoid arguments of surprise. When a responding party discovers an error in the initial response or acquires information that would affect the initial response, amending an answer may be the wisest course because it avoids the arguments of surprise and the possibility of the court granting a continuance at trial or excluding the new information altogether.
If you decide to amend an interrogatory response, you don’t need get a court order (CCP 2030.310(a)) or file a motion for relief under CCP §473. You simply serve an amended response that complies with the California Rules of Court and the Code of Civil Procedure sections applicable to interrogatories. For example, the amended responses must comply with Cal Rules of Ct 3.1000, and should be formatted and served in the same manner as answers to interrogatories.
And there’s no limitation on when an amended response may be served. CCP 2030.310(a) (except that CCP §§2016.060, 2024.010–2024.060 provide for a cutoff time by which all discovery, including responses, must be completed). But because a trial judge might be more likely to find prejudice to the propounding party if the “new answer” isn’t disclosed until the time of the trial or hearing, it’s a good idea to correct responses as soon as possible.
Keep in mind that, if you serve an amended response, the propounding party may use the initial response to the interrogatory against your client at the trial or other hearing as far as admissible under the rules of evidence. CCP §§2030.310–2030.410. But you’ll be able to use the amended one. CCP §§2030.310(a), 2030.410.
Note also that a party can offer evidence at trial that differs from or contradicts previous answers to interrogatories (in other words, the contradiction between an answer to an interrogatory and a witness’s testimony doesn’t in itself affect the testimony’s admissibility). That being said, however, the party can be impeached with a prior interrogatory answer.
Don’t confuse amended answers to interrogatories with supplemental responses:
An amended response is voluntarily made when counsel or a party discovers information that was inadvertently omitted or mistakenly stated in the initial interrogatory responses;
Supplemental responses to interrogatories are made after a specific request under CCP 2030.070 that is seeking any later-acquired information bearing on all answers previously made in response to interrogatories.
For expert guidance on all aspects of propounding and responding to interrogatories, turn to CEB’s California Civil Discovery Practice, chap 7. Also check out the step-by-step advice in CEB’s Obtaining Discovery: Initiating and Responding to Discovery Procedures.
Reprinted from CEB BLOG: Should You Amend Your Interrogatory Responses? copyright 2019 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar – California (CEB). No other republication or external use is allowed without permission of CEB. All rights reserved. (for information about CEB publications, telephone toll-free 1-800-CEB-3444 or visit our website – CEB.com.)
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.
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.
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 biggest burden in bringing motions to compel further responses is the preparation of the separate statement of items in dispute pursuant to CRC, Rule 3.1345. In my blogs and at seminars, I have advised parties to prepare their meet and confer letters in the format of a separate statement. See my blog “EXHIBIT A—The Meet and Confer Letter.” As a Discovery Referee I have required parties to exchange Discovery in Word format. I find it is helpful for two reasons: (1) the parties can meet and confer using the “Track Changes” function in Word and hopefully agree on the modifications to the propounded written discovery, and (2) parties can easily prepare the separate statement of items in dispute if a motion needs to be filed. This takes out the grunt work of having to retype the interrogatories, requests for admissions and requests for documents, as well as their responses when preparing or responding to the separate statement when only a hard copy was served.
In 2020, Code of Civil Procedure § 2030.210 titled Written responses to interrogatories; Content of response; Format and method of transmission added the following paragraph:
(d) In order to facilitate the discovery process:
(1) Except as provided in paragraph (5), upon request by the responding party, the propounding party shall provide the interrogatories in an electronic format to the responding party within three court days of the request.
(2) Except as provided in paragraph (5), upon request by the propounding party after receipt of the responses to the interrogatories, the responding party shall provide the responses in an electronic format to the propounding party within three court days of the request.
(3) A party may provide the interrogatories or responses to the interrogatories requested pursuant to paragraphs (1) and (2) in any format agreed upon by the parties. If the parties are unable to agree on a format, the interrogatories or responses to interrogatories shall be provided in plain text format.
(4) A party may transmit the interrogatories or responses to the interrogatories requested pursuant to paragraphs (1) and (2) by any method agreed upon by the parties. If the parties are unable to agree on a method of transmission, the interrogatories or responses to interrogatories shall be transmitted by electronic mail to an email address provided by the requesting party.
(5) If the interrogatories or responses to interrogatories were not created in an electronic format, a party is not required to create the interrogatories or response to interrogatories in an electronic format for the purpose of transmission to the requesting party.
(6) A responding party who has requested and received the interrogatories in an electronic format pursuant to paragraph (1) shall include the text of the interrogatory immediately preceding the response.
There was a similar change regarding Requests for Admissions. See C.C.P. §2033.210(d). Unfortunately, there were no similar changes to C.C.P. §2031.210-240 regarding responses to Request for Production of Documents.
At a time when Covid-19 has thrown hurdles in front of us regarding our ability to litigate a matter, this is a welcome change to the discovery process.
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).
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.”
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.
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.
Interrogatoriesare 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
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.
The title of this blog is a quote from the most basic tenant of the 2016 Discovery Act found inCode of Civil Procedure Section 2017.010titledMatters Subject to Discoverywhich 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:
[8:83]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:
“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.
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. 4th 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.
Personal Injury attorney Miles B. Cooper, a partner at Emison Hullverson LLP, wrote a very insightful article in the March, 2014 issue of Plaintiff Magazine on the joys and pitfalls of deposing treating physicians.
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Something came up for opposing counsel at the last minute and he didn’t show. That left us – the court reporter, videographer, and me – sitting in the conference room with the treating doctor deponent, the one who had been too busy, according to his office (disinterested, I suspected) to meet me face to face. “Doctor, while you’re here,” I began . . .
Treaters: the upside and the downside
Treating doctors carry more credibility with a jury than a retained expert. A treater, like a retained expert, is compensated to attend deposition and trial, true. But the treater actually treated. The retained expert can come across as a hired gun.
Treaters are rarely happy deponents. They want to treat. Two hours with you and your joyous opposing counsel is time they will never get back. They tend to dislike all lawyers, us types in particular (something about a decades-long battle called MICRA.) Often, they erect barriers that prevent you from speaking to them.
This means most treaters will be chilly at best, hostile at worst. But you can’t treat them like a hostile witness: “You think I’m hostile now, wait ‘til you see me tonight.” If you don’t immediately recognize this, rewatch “My Cousin Vinny” – a fun way to bone up on trial skills.
Work with me
So how do you work with a treater? The same way porcupines mate. Carefully.
Speak to the treater directly
Call and ask for an hour of the doctor’s time. Meet in person. Pay for the time. Prepare for the meeting like a deposition – bring all the material you want the doctor to see. You can’t do that over the phone, nor can you evaluate the doctor as a witness with all five senses. This includes other medical records, radiology, and graphics you may want to use at trial. Make sure the doctor knows at the beginning of your session how appreciative your client is of the care the doctor gave.
Some treating doctors will not speak to a patient’s lawyer without a deposition. At the deposition, the doctor then shows up with counsel. I’ve heard of lawyers using their client as a wedge to open those doors. This is done either with a timed cell-phone call or by shadowing the client to an appointment.
I’ve also never heard of this method succeeding – but depending on the importance of your case, you could consider it.)
Give the doctor the information
A doctor wants to fix the problem. The doctor may not care how the problem occurred. The doctor may not care much about the patient’s past history. And the doctor may be disinterested in the other care rendered. If the doctor renders opinions without all the information, the opinions can be eviscerated.
That means you need to get the information to the doctor, including the difficult topics. Perhaps your client forgot about a prior injury. Better to get out in front of it rather than wait for defense counsel to raise it.
If you cannot meet prior to the deposition, make sure you are ready for the deposition. Bring all the material to lay a foundation for the doctor’s opinions. Put it in chronological order. Make sure the documents are Bates-stamped, and reference the number on the record. This makes it easier for the jury if the doctor is unavailable for trial.
Explain the burden of proof
Treaters rarely encounter our “more likely true than not true” world. If you don’t explain the burden, the treating doctor typically assumes the defense’s questions about medical certainty mean something far more substantial. Explain it. If you don’t get an opportunity prior to the deposition, do it on the record.
Consider noticing the deposition
You notice the deposition, you control the initial direction of the event. You can employ certain tools at the beginning of the deposition that, if you go second, could be too late. For doctors who refuse to talk to you, this can make a big difference.
Ninety-eight percent of American doctors opt to swear to a healing oath (interestingly it is not required.) Consider reminding a difficult doctor about that oath. The obligation doesn’t end with a closed suture. One important component of healing is the financial wherewithal to afford the care. The doctor’s opinions about the care – the cause, the necessity, the cost – are part of that care. You can discuss this with the doctor at the beginning of the deposition.
No matter how many times the doctor promises to attend trial, consider videoing your direct exam of a treating doctor. Busy surgery schedule, sudden emergencies, changes of heart – the video will always be there even if the doctor is not.
Cause and effect
Back to our deposition room with the absent opposing counsel. We discussed the incident. A fall, an abrasion, an infection, but an amputation? Thanks to opposing counsel’s schedule, the treating doctor understood the patient’s history and, more importantly, supported the causal connection. The reconvening of the deposition led to resolution shortly after.
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.
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.
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 facts in Field are straightforward. Plaintiff Field brought a wrongful foreclosure action against a bank and the servicer, Rushmore Loan Management Ser vices, LLC. referred to in the opinion as the “Rushmore” Defendants. Rushmore served Plaintiff Field with Special Interrogatory #16 which stated:
Do YOU contend that the [Notice of Trustee Sale] that YOU reference in paragraph 15 of the [Second Amended Complaint] was not mailed to YOU in compliance with California Civil Code section 2924b? If so, then please provide all facts RELATED TO this contention.
[Answer:] Unsure.
Defendants moved for summary judgement not merely on a lack of evidence, but presenting facts demonstrating that the foreclosure was sound. In opposing the motion, Field sought to create a triable issue of fact, by disputing proper service of the Notice of Trustee Sale, by contradicting “her discovery response about being “Unsure”: now she was sure, and she swore she never received the notice” with her declaration with her opposition to the motion. The trial court granted the motion for summary judgment and the Court of Appeal affirmed the ruling finding Field’s “Unsure” response and later attempt to change that answer in opposition to the Summary Judgment Motion as an abuse of discovery. Boiled down, the Court of Appeal said that a party is entitled to rely on verified discovery responses. The Court went on to state:
It was unjust and improper for Field to swear during discovery she was “[u]nsure” whether Rushmore’s notice was proper but then to contradict this position during summary judgment by swearing the notice was improper because she never got it.
Code of Civil Procedure section 2030.310 provides a mechanism for parties to amend responses to interrogatories under certain circumstances, yet Field did not attempt to amend.
A party opposing summary judgment may not move the target after the proponent has launched its arrow. Rushmore’s contention interrogatory sought to pin down Field’s abstract theory of wrongful disclosure by getting her to specifics. Field’s one-word answer was “Unsure.” This response was too clever by half. Field had to be diligent and straightforward in responding to discovery. (Code Civ. Proc., § 2030.220, subds. (a)–(c).)
She could not feint with “Unsure” and then later seek to create a disputed issue of fact with assertions she had failed to formulate or to disclose during discovery.
(See Code Civ. Proc., § 2023.010 subd. (f) [evasive responses are sanctionable]; cf. Cohen, supra, 35 Cal.App.5th at pp. 17–19 [you cannot change your story to avoid summary judgment].) Parties prepare interrogatory answers with the assistance of counsel, which justifies a broad duty of response. (Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:1053 (Edmon & Karnow).)
Field is right her response of “Unsure” was ambiguous. Her ambiguity, in which counsel participated, is the problem. Mail service is imperfect, but a claim of failure to receive something implies failure in the sending. Field’s contention she did not receive notice was a necessary response to the interrogatory. To suggest otherwise when asked for “RELATED” facts is to misconstrue the question deliberately. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [do not deliberately misconstrue the question in order to supply an evasive answer].)
Rushmore asked a simple question to clarify Field’s position. Field replied with a cryptic non-answer that could achieve only obfuscation. But the Legislature intended our discovery statutes would take the game element out of trial preparation. (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.)
Trial courts encountering such an abuse are free to disregard a later declaration that hopes to supplant tactical or slothful ambiguity with tardy specificity.
(Cf. Edmon & Karnow, supra, at ¶ 8:1050.10 [“Caution—incomplete answers may expose responding party to summary judgment: ‘Factually devoid’ interrogatory answers may come back to haunt the responding party if the opposing party moves for summary judgment.” (Italics omitted.)].)
Field offers a variant of this same argument by saying her failure to receive notice of the trustee’s sale prevented her from tendering the balance she owed Rushmore. This branch falls with the tree: Field’s untimely and contradictory effort cannot support any attack on this grant of summary judgment, which was proper.
This is a welcome opinion for every lawyer who deals honestly and diligently during discovery, only to be forced to contend with an opposing party’s evasive responses, garbage objections, and abusive discovery tactics.
One of the most common questions I am asked is: when does the clock start regarding bringing motions to compel written discovery? The statutes all contain the same language, but it’s not that easy to decipher. Below is a list of scenarios with the applicable statutes and case law regarding the different responses you may receive.
FAILURE TO RESPOND There is no time limit on bringing the motion to compel the response to the Interrogatories, or the request for production of documents, or have the admissions be deemed admitted. See CCP §§2030.290(b), 2031.300(b) and 2033.280.
RESPONSES WITHOUT VERIFICATION There is no time limit on bringing the motion, as an unverified response is tantamount to no response. See Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1102 citing Appleton v. Sup. Ct. (1988) 206 CA3d 632, 636.
RESPONSES WITH ANSWERS AND OBJECTIONS Need to bring the motion within 45-days of service of the response. See CCP CCP §§2030.300(c), 2031.310(c), and 2033.290(c).
The Fourth District Court of Appeal in the case of Golf & Tennis Pro Shop, Inc. v. Superior Court, 2022 Cal. App. LEXIS 855 answered the question whether the 45-day period to file a motion to compel further responses begins to run upon service of a combination of unverified responses and objections if the motion challenges only the objections. The Court held that “the most reasonable construction of the applicable statutes seems to us to require verification of such a hybrid of responses and objections before the time period begins to run.”
Stipulations to extend the time to bring a motion to compel further responses must be in writing with a date certain. See Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1148 and CCP CCP §§2030.300(c), 2031.310(c), and 2033.290(c).
The court may toll the deadline for filing a discovery motion if an Informal Discovery Conference is requested pursuant to CCP §2016.280. See blog “If Meet and Confer Fails, Ask for Help.”
In my Discovery Referee cases I am seeing more motions going to the brink with one party bringing a motion for issue, evidence and/or terminating sanctions. Many of the motions are denied without prejudice due to the papers being deficient in showing a history of abuse and prejudice to the propounding party that warrant the granting of the motion. This blog discusses the law regarding the court’s ability to award issue, evidence and terminating sanctions and what you need in your motion to be successful.
(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.
(b) Using a discovery method in a manner that does not comply with its specified procedures.
(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.
(d) Failing to respond or to submit to an authorized method of discovery.
(e) Making, without substantial justification, an unmeritorious objection to discovery.
(f) Making an evasive response to discovery.
(g) Disobeying a court order to provide discovery.
(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.
The least severe of these sanctions is the “evidence” sanction. This order precludes a recalcitrant party from using certain evidence that might otherwise be admissible at trial.
More severe is the “issue” sanction where the court will treat certain disputed facts for purposes of the trial as established in favor of the party who was seeking the discovery.
Another drastic sanction is a “contempt” sanction which is limited to disobedience of a court order to answer a question or produce documents during a deposition. See C.C.P. §2025.480.
When reviewing a motion for issue, evidence and/or terminating sanctions, the court must examine the entire record in determining whether the drastic sanction should be imposed. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796 In exercising the Court’s discretion, a variety of factors may be relevant, including:
the time which has elapsed since the discovery was served;
whether the party received extensions of time to answer or respond;
the number of discovery requests and the burden of replying;
the importance of the information sought;
whether the answering party acted in good faith and with reasonable diligence—i.e., whether the answering party was aware of the duty to furnish the requested information and had the ability to do so;
whether the answers supplied were evasive and incomplete;
the number of questions which remained unanswered;
whether the unanswered questions sought information that was difficult to obtain;
Past experience is often a “prime indicator” in assessing an attorney’s or party’s credibility and motivation. “An abuse of discovery procedures in one instance can imply a continuing intent to abuse in other instances.” Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 430-431
“A willful failure does not necessarily include a wrongful intention to disobey discovery rules. A conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” Deyo at 787-788.
A motion for issue, evidence and/or terminating sanctions is fact driven and is supported by all of the evidence. Do not be afraid to be inclusive. The last motion for terminating sanctions that I recommended to the court to be granted was close to 3000 pages. In brining your motion you should provide the following information:
1. Facts of the Case. Give a good explanation of the facts of the case for the court to gauge the gravity of the discovery abuse against the size of the case, the value of the case and the discovery that had been requested in context of the case as a whole.
2. Timeline. Provide a procedural timeline and include:
Date complaint was filed and when the answer was filed.
All dates discovery propounded by you and the dates you received responses.
All meet and confer efforts.
All informal discovery conferences with the court.
Dates of filings for all your discovery motions (not just the ones that are currently in issue, as well as the opposition papers and reply papers.
Hearing dates and court rulings.
Mediation and settlement conference dates (if applicable).
Motion for Summary Judgement/Summary Adjudication deadline (if applicable).
Trial Date (if applicable).
3. Argument. In your argument section state why you were entitled to your discovery. Detail how the opposing party not only didn’t respond but engaged in a strategy of repeated dilatory conduct and failed to comply with their obligations under the Discovery Act. Make sure have separate descriptive paragraphs for:
All your meet and confer efforts and opposing party’s response to those efforts. Quote the correspondence and attach the correspondence to declarations.
All Informal Discovery Conferences with the court, the court facilitator and/or the Discovery Referee.
Every discovery ruling the court has made. Quote from the ruling and attach the orders to your declaration.
How the opposing party’s failure to provide code compliant responses, provide documents requested and/or t to answer deposition questions has blocked your ability to conduct discovery on opposing party’s allegations/defenses and interfered with your ability to prepare for trial. Give specific examples of what discovery you were unable to recover. (i.e., the documents that the opposing party is relying on which supports a specific cause of action or defense).
4. Separate Statement. Provide a Separate Statement of Items in Dispute showing all the different responses you had received. Do your real argument here. Be detailed in the law as to why the objections are garbage and how your client is now prejudiced when you were unable get the information in discovery. Trust me when I tell you that this is the most important document of your motion and the primary document that a court will rely on.
5. Declaration.
Describe the discovery that was propounded and the responses you received. Track your papers so it is easy for the court to follow.
Describe all meet and confer attempts that were made including oral discussions.
Describe the results of any Informal Discovery Conference.
Describe all court orders.
Describe in detail how your client has been prejudiced.
Remember to authenticate all your documents when you mention them in your moving papers and declaration.
6. Proposed Order. Make sure that your order is detailed the same way you would prepare an order granting a motion for summary judgement/summary adjudication This is important because there is a very good chance that an order granting your motion will be appealed by the other side. Your proposed order should include Include the following:
If asking for issue and/or evidence sanctions, use the language from your written discovery and have it track the Separate Statement of Items in Dispute so it will be easy reference for the court.
The procedural timeline regarding the discovery in issue
A finding of the opposing party’s obligation in responding to the discovery and their failure to comply with their obligations.
Consider the following question I received from a defense attorney.
“Plaintiff timely served updated verified responses to Form Interrogatories, Set #1, #6.4, 8.4, 8.6, 16.1- 16.8 and 17.1 (RFA #5) pursuant to a Supplemental Interrogatory request. Instead of providing the information requested in the interrogatories, Plaintiff responded to each of the interrogatories with the following response:
Pursuant to CCP §2030.230, Plaintiff identifies the documents Bates Stamped 00001 – 00290 she produced on March 1, 2024
The email went on to ask if Plaintiff’s response was proper. The answer is no.
Reason #2: Plaintiff’s reference to 290 documents is improper. The code does not require Defendants to cull through 290 documents and guess what Plaintiff’s responses might be. If an interrogatory requires “reference to some other document, it should be identified, and its contents summarized so that the answer by itself is fully responsive to the interrogatory.” Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) ¶8:1049 citing Deyo v. Kilbourne (1978) 84 CA3d 771 at 783,149. As can be seen by the response, the documents are neither summarized nor identified to any specific interrogatory. In essence, Plaintiff’s response is similar to “see my files and records,” which has been found to not be a proper response. See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) citing Fuss v. Sup. Ct. (1969) 273 CA2d 807, 815-817.
Reason #3: Plaintiff has not complied with C.C.P. §2030.230, which reads:
If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.
Plaintiff’s response fails to show:
a compilation, abstract, audit or summary of its records is necessary in order to answer the interrogatory;
no such compilation etc. presently exists; and
the burden or expense of preparing or making it would be substantially the same for the asking party as it would for the answering party.
See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) at ¶ 8:1066 citing C.C.P. §2030.230
Reason #4: Plaintiff’s reliance on C.C.P. §2030.230 is not available to Plaintiff in responding to Form Interrogatories #6.4, 8.4, 8.6, 16.1- 16.8 and 17.1, as the interrogatories asking for specific information (i.e., facts, witness and identification of documents) and not a compilation.
In short and in summary, a supplemental interrogatory must be treated as any other interrogatory. The attorney must perform a diligent search for information. If the interrogatory requires reference to a document, the document should be identified, and its contents summarized so that the answer by itself is fully responsive to the interrogatory. Only if the the documents are voluminous and it is burdensome to to make a compilation does the responding party have the option of responding pursuant to C.C.P. §2030.230.
It’s not required that a party amend interrogatory responses to reflect information the party got after responding, but there are situations in which a party may want to do just that.
