Los Angeles Lawyer October 2008 - Gray Plant Mooty

closing argument
BY PAUL EISNER
Will Someone Please Clean Up the Form Interrogatories Mess?
THE ENACTMENT OF THE 1986 DISCOVERY ACT was designed to
clean up many of the abuses that then plagued—and unfortunately,
some of which still plague—the discovery process. However, the act
created some new problems, and others have persisted despite the act’s
clear language. One of the problems that existed prior to the act was
the propounding of interrogatories with reference to other, unattached
documents. The Discovery Act put an end to this abuse by requiring
that each interrogatory must be complete. However, too many interrogatories,
including some developed by the Judicial Council, ignore
the rule of self-containment.
The relevant language of Code of Civil
Procedure Section 2030.060(d) states: “Each
interrogatory shall be full and complete in and
of itself. No preface or instruction shall be
included with a set of interrogatories unless it
has been approved under Chapter 17 (commencing
with Section 2033.710).” 1 The
California Court of Appeal has ruled that the
requirement that an interrogatory be complete
in and of itself is not satisfied when “resort must necessarily be made
to other materials in order to complete the question.” 2
Section 2030.060(f) provides, “No specially prepared interrogatory
shall contain subparts, or a compound, conjunctive, or disjunctive
question.” This language, which governs how special interrogatories
may be drafted, is less encompassing than the phrase
“each interrogatory” contained in Section 2030.060(d). Since there
are only two types of interrogatories—attorney-drafted, specially
prepared interrogatories and Judicial Council form interrogatories—
giving effect to the broader language of Section 2030.060(d) requires
that it apply to both types of interrogatories. While Code of Civil
Procedure Sections 2033.710 et seq. authorize the Judicial Council
to develop and approve form interrogatories and make rules regarding
their use, that authority does not allow the Judicial Council to
develop or approve interrogatories drawn in contravention of the provisions
of the Discovery Act.
Unfortunately, many Judicial Council form interrogatories were
drafted in contravention of the self-containment rule of Section
2030.060(d) and properly can be objected to on the grounds that they
are incomplete. Form Interrogatory 15.1 and the similarly worded
216.1, which ask about the denial of allegations in and affirmative
defenses to the complaint, 3 violate the rule of self-containment
because resort must be made to other materials, namely both the complaint
and the answer. Form Interrogatories 17.1 and 217.1, which
ask about the failure to unqualifiedly admit matters requested to be
admitted, 4 also violate the rule of self-containment since they require
resort to both requests for admissions and responses to the requests
for admissions.
Finally, the form interrogatories written for use in both unlimited
jurisdiction and limited jurisdiction cases make use of the defined term
“incident” in many of the questions. Both sets give the same two
options for how the term “incident” is defined. The first option uses
a preprinted definition: “INCIDENT includes the circumstances and
events surrounding the alleged accident, injury, or other occurrence
or breach of contract giving rise to this action or proceeding.” The
second option provides: “INCIDENT means (insert your definition
here or on a separate, attached sheet labeled “Sec. 4(a)(2)”).” The second
option allows attorneys to define “incident” as they see fit.
Under the first option, all form interrogatories that use the term
“incident” may be incomplete, since one cannot determine the nature
of the allegations without resort to the accusatory pleading. Use of
Too many interrogatories, including some developed by the
Judicial Council, ignore the rule of self-containment.
the second option should avoid this problem, since the definition
becomes part of the interrogatory set.
Someone needs to clean up this mess. Unless and until Section
2030.060(d) is revised, Form Interrogatories 15.1, 216.1, 17.1, and
217.1 remain in violation of the self-containment rule, as do other
form interrogatories using the term “incident” when the term is
defined using the first option.
■
1 CODE CIV. PROC. §2030.060(d) (formerly CODE CIV. PROC. §2030(c)(5)).
2 Catanese v. Superior Court, 46 Cal. App. 4th 1159, 1164 (1966). See also
Discovery and Depositions §130 at 244 in CALIFORNIA JURISPRUDENCE 3d (2004).
3 Form Interrogatory 15.1 asks:
Identify each denial of a material allegation and each special or affirmative
defense in your pleadings and for each:
(a) state all facts upon which you base the denial or special or affirmative
defense;
(b) state the names, ADDRESSES, and telephone numbers of all PERSONS
who have knowledge of those facts; and
(c) identify all DOCUMENTS and other tangible things which support your
denial and state the name, ADDRESS, and telephone number of the PER-
SONS who has each DOCUMENT. (emphasis in original).
4
Form Interrogatories 17.1 and 217.1 ask:
Is your response to each request for admission served with these interrogatories
an unqualified admission? If not, for each response that is not an
unqualified admission:
(a) state the number of the request;
(b) state all facts upon which you base your response;
(c) state the names, ADDRESSES, and telephone numbers of all PERSONS
who have knowledge of those facts; and
(d) identify all DOCUMENTS and other tangible things that support your
response and state the name, ADDRESS, and telephone number of the PER-
SON who has each such DOCUMENT or thing. (emphasis in the original).
Paul Eisner is with the law offices of Duncan David Lee.
44 Los Angeles Lawyer October 2008