Avoiding the Technical Mistakes When Drafting Written Discovery

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23Aug2016

Avoiding the Technical Mistakes When Drafting Written Discovery

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By Katherine Gallo

technical mistakes

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 okay 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 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 is 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.

© Copyright 2016 Kathleen Gallo.  This article was originally posted on Resolving Discovery Disputes.

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