Los Angeles Lawyer October 2008 - Gray Plant Mooty

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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
ASTM’s New Standard ON THURSDAY, OCTOBER 23, the Environmental Law Section will host a program including speakers Robert Ettinger, Karen E. Schmitt, and Edward L. Strohbehn Jr. to answer questions about ASTM’s E2600-08 standard practice for vapor intrusion (VI) assessment—what it is, what it isn’t, when it applies, and what potential liabilities are associated with its use. VI is a current issue for environmental attorneys that frequently arises at new and old (or closed) sites. Now the VI pathway is also being considered in environmental due diligence for property transactions. This program will provide the tools to understand, evaluate, and address VI issues. The speakers will highlight technical and legal factors, with a focus on how to help clients address these issues. The program will also provide practical recommendations for addressing VI issues to comply with the Federal Superfund’s “all appropriate inquiries” regulatory requirements, which are important to establishing and protecting defenses to Superfund liability. The event will take place at the LACBA Conference Center, 281 South Figueroa Street, Downtown. Reduced parking is available with LACBA validation for $10. On-site registration and the meal will begin at 11:30 A.M., with the program continuing from noon to 1:00 P.M. The registration code number is 010185. The prices below include the meal. $15—law students and CLE+PLUS members $20—Environmental Law Section government and public interest attorneys $35—Environmental Law Section members $50—all others $55—all at-the-door registrants 1 CLE hour TAP Witness Examination Workshop ON MONDAY, OCTOBER 13, the Trial Advocacy Project and the Litigation Section will present a course to provide introductory and advanced level instruction on how to examine a witness under oath. The first part of the program is a lecture with questions and answers, covering the formula for direct examination. Part two is a workshop in which participants conduct direct examination and cross-examination of witnesses and receive constructive feedback on their performance. The workshop will take place at the LACBA/Executive Presentations Mock Courtroom, 281 South Figueroa Street, Downtown. Figueroa Courtyard reduced parking with LACBA validation costs $10. On-site registration and a meal will be available at 8 A.M., with the program continuing from 8:30 A.M. to 12:30 P.M. The registration code number is 009908. $250—LACBA members $350—all others 3.75 CLE hours 30-Hour Basic Mediation Training FROM TUESDAY to THURSDAY, OCTOBER 14 to 16, the Association’s Alternative Dispute Resolution (ADR-DRS) department will hold 30 hours of small group exercises and role-playing for persons who wish to acquire a strong foundation in basic mediation skills and wish to satisfy the classroom requirements of the California Dispute Resolutions Act of 1998. Speakers Lynne Bassis, Gail Nugent, John Rodriguez, and L. Therese White will lead. The training will take place at the Ken Edwards Center, 1527 Fourth Street in Santa Monica, with parking available at the Ken Edwards Center. On-site registration on Tuesday will be available at 5:30 P.M., with the program continuing from 6 to 9. The registration code number is 010132. $495—DRS associates, early bird registration $525—LACBA members, early bird registration $595—all others, early bird registration $550—DRS associates $575—LACBA members $625—all others 26.75 CLE hours The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs listed on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at http://calendar.lacba.org/where you will find a full listing of this month’s Association programs.
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Los Angeles Lawyer October 2008 - Gray Plant Mooty

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