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Effective use of objections in responding to ... - Khorrami_ LLP

VIEWS: 27 PAGES: 5

									                    Todd J. Bloomfield                    Lourdes DeArmas                        William M. Karns




Effective use of objections
in responding to interrogatories
[Ed. Note: This article contains suggested        presenting that evidence at trial. Just as       privacy and privilege objections should
objections which can be adopted in respond­       important, significant information about         always be stated. Should the written dis­
ing to discovery. CAALA members may cut­          your case must be provided if you expect         covery process land you in law and
and-paste the objections listed in this article   the defense to engage in meaningful              motion, a practitioner who errors on the
into their discovery responses by downloading     mediation.                                       side of over-objecting will fair better
the article from the CAALA Web site at                  Given that backdrop, as to each            than the attorney who missed a signifi­
http://www.CAALA.org. The article may be          interrogatory propounded, the first              cant objection.
found in the Advocate Magazine section            question you must ask yourself is, “Must              Your job is not only to prosecute
under Advocate Article Archive Library.]          I object?” The next thought you should           your client’s case, but also to protect
                                                  have is,“Should I object?” followed by,          your client’s privacy. When the defense
      While every case is different and           “What objections are available?” Once            starts seeking your client’s social security
civil litigation styles vary widely from          you have completed that analysis and             number, and medical information not
lawyer to lawyer, the one constant in all         asserted proper objections, the final            related to the injury at bar, or other per­
litigation is basic preliminary written dis­      question you must decide is whether to           sonal information, it is your job to
covery. The goal of written discovery is          answer the question once the objection is        defend your client’s privacy, even if it
to permit all parties to identify essential       stated.                                          might be easier to simply give the
issues necessary to evaluate the case and               While this article will focus on spe­      defense what they are asking for.
prepare for depositions and trial.                cific objections, the procedure in
Written discovery usually starts with             responding to discovery is important.            Should information be provided even
form interrogatories and special inter­           Code of Civil Procedure section                  if an objection is stated?
rogatories.                                       2030.290 provides that if responses to                 For a plaintiff ’s attorney, a discovery
      Unfortunately, all too often, the           interrogatories are not timely, all objec­       battle is an undue consumption of time;
defense interrogatories are prepared by           tions are waived, including the work             for a defense attorney, it is a billing
an inexperienced attorney, generating             product protection.                              bonanza. If you win, you lose; and if you
extra billing hours by propounding use­                                                            lose, you lose. The best outcome for a
less repetitive questions which are often         When must/should an objection be                 plaintiff ’s attorney is to avoid the fight.
sent without regard to your client’s pri­         stated?                                          Pick your battles wisely.
vacy rights or the relevant issues in the              If an objection is not stated in                  There is almost no risk in stating an
case. The discovery propounded by                 response to written discovery, that objec­       objection if the request is answered any­
defense firms are too often boilerplate           tion is waived. (Code of Civ. Proc., §           way. Most requests should be answered,
forms which have not been tailored to             2030.290; and Scottsdale Ins. Co. v.             even if an objection is stated. But object­
the specific case and may not even have           Superior Court of Los Angeles County             ing to every request without providing
been reviewed by the propounding attor­           (1997) 59 Cal.App.4th 263, 273 [69               any answers is sure to end in a defense
ney.                                              Cal.Rptr.2d 112, 118].) Although there           motion to compel. If an improper ques­
      Responding to this discovery can be         may be reasons to postpone objections            tion seeks information that will not hurt
an arduous and unpleasant task. Huge              in other areas, it is good practice in writ­     your case and does not invade your
amounts of time can be consumed in                ten discovery to state all applicable            client’s privacy, answer the question.
preparing responses to some of the non­           objections in your initial written               Nothing will generate more interest
sense propounded.                                 response.                                        from the defense than a response which
      What makes the problem even more                 There are exceptions to waiver; for         makes opposing counsel think you are
challenging is that you must ensure that          example, a delayed objection on the              hiding something important.
you accurately and completely respond             grounds of privacy. (Heda v. Superior                  There may be discovery requests
to valid interrogatories. Failure to pro­         Court (1990) 225 Cal.App.3d 525, 530             that seek information defendants are
vide responsive information to proper             [275 Cal.Rptr. 136, 139].) But rather            entitled to, but the request is improper in
interrogatories is both improper and              than risk a court ruling regarding a             its form. There may be discovery requests
unethical. It can also result in a bar to         waiver by failing to object, applicable                     See Bloomfield et al, Next Page
                   By Bloomfied, DeArmas & Karns — continued from Previous Page
                                                                                                              July 2009 Issue




that seek information that will not dam­        Court (1989) 207 Cal.App.3d 490, 493­              In analyzing the work-product privi­
age your case. There may be discovery           494 [255 Cal.Rptr. 5, 7-8].)”                 lege, courts have determined that only
requests that require a showing of rele­             Although not a forceful objection, if    derivative materials are protected.
vance that your judge will eventually           the defendant continuously seeks the          Derivative work-product is that informa­
grant. In those situations, state the objec­    same information, irrespective of the         tion created by or resulting from an
tion, but comply with the request. Specify      phrasing of the request, it may be            attorney’s work on behalf of a client that
that compliance does not waive the              grounds for a protective order based          reflects the attorney’s evaluation or
objection: “Subject to and without waiv­        upon oppression.                              interpretation of the law or the facts
ing said objections, plaintiff responds as           • Attorney-client privilege:             involved. Nonderivative materials are
follows...”                                     “Objection. The request seeks informa­        those that are only evidentiary in charac­
                                                tion subject to the attorney-client privi­    ter. These are not protected even if a lot
Objecting to interrogatories                    lege. The attorney-client privilege is        of attorney “work” may have gone into
     A Pulitzer has never been awarded          broadly construed, and extends to “fac­       locating and identifying them. (Mack v.
for objections to written discovery. State      tual information” and “legal advice.”         Superior Court (1968) 259 Cal.App.2d 7,
objections simply and clearly. Support          (Mitchell v. Superior Court (1984) 37         10 [66 Cal.Rptr. 280, 283].
your objections with legal authority. An        Cal.3d 591, 601 [208 Cal.Rptr. 886,                There is ample case law delineating
objection should be stated just as it           891].)”                                       derivative versus nonderivative work
would in a response to a “meet and con­              Communications between client and        product. Objections into this should con­
fer” letter, and then into an opposition        counsel are privileged. They are pre­         tain case law on point. The following
to a motion to compel. A judge will             sumed to be made in confidence, and           cases will assist in tailoring your work
notice and appreciate this kind of consis­      broadly privileged against from discov­       product objection: Mack v. Superior Court
tency.                                          ery. This is a very broad privilege which     of Sacramento County; Williamson v.
     Responding to interrogatories is           extends to “factual information” and          Superior Court of Los Angeles County
enough work on its own without having           “legal advice.”                               (1978) 21 Cal.3d 829 [148 Cal.Rptr. 39];
to reinvent the wheel and spend count­               • Attorney work-product protection:      Brown v. Superior Court of Butte County,
less hours researching cases to support         “This discovery request seeks attorney        (1963) 218 Cal.App.2d 430 [32 Cal.Rptr.
your position that defendant’s interroga­       work product in violation of Code of          527]; and Nacht & Lewis Architects v.
tory is vague, ambiguous, overbroad,            Civil Procedure sections 2018.020 and         Superior Court (1996) 47 Cal.App.4th 214
burdensome, oppressive, and not likely          2018.030. (Cite appropriate case law and/or   [54 Cal.Rptr.2d 575].
to lead to admissible evidence.                 analysis of how the information sought is     • Premature disclosure of experts:
Therefore, set forth below are suggested        derivative in nature.)”                       “Objection. The interrogatory seeks pre­
objections to the most common discov­                Code of Civil Procedure section          mature disclosure of expert opinion in
ery issues.                                     2018.030 subdivision (a) states, “[a] writ­   violation of Code of Civil Procedure sec­
                                                ing that reflects an attorney’s impres­       tions 2034.210, 2034.220, and 2034.270.
Objections to interrogatories                   sions, conclusions, opinion, or legal         The interrogatory also seeks attorney
     • Argumentative: “Objection. This          research or theories is not discoverable      work-product in violation of Code of
discovery request as phrased is argumen­        under any circumstances.” Subdivision         Civil Procedure sections 2018.020 and
tative. It requires the adoption of an          (b) expands the protection to include         2018.030. Plaintiff has not decided on
assumption, which is improper.”                 any other attorney work-product, “unless      which, if any, expert witnesses may be
     Any discovery request that requires        the court determines that denial of dis­      called at trial; insofar as this interrogato­
the adoption of an assumption is argu­          covery will unfairly prejudice the party      ry seeks to ascertain the identity, writings,
mentative. This is objectionable as to          seeking discovery in preparing that           and opinions of plaintiff ’s experts who
form. The classic example is, “When did         party’s claim or defense or will result in    have been retained or utilized to date
you stop beating your wife?” This ques­         injustice.”                                   solely as an advisor or consultant, it is
tion assumes facts that may not be true,             The purpose of this protection is to     violative of the work-product privilege.
but requires the answer adopt the               “[p]reserve the rights of attorneys to pre­   (See South Tahoe Public Utilities District v.
assumption.                                     pare cases for trial with that degree of      Superior Court (1979) 90 Cal.App.3d 135
     • Already asked, repetitive discovery:     privacy necessary to encourage them to        [154 Cal.Rptr. 1]; Sheets v. Superior Court
“Objection. This discovery request has,         prepare their cases thoroughly and to         (1967) 257 Cal.App.2d 1 [64 Cal.Rptr.
in substance, been previously propound­         investigate not only the favorable but the    753]; and Sanders v. Superior Court, (1973)
ed. (See Interrogatory/Request No. ___.)        unfavorable aspects of those cases,” and      34 Cal.App.3d 270 [109 Cal.Rptr. 770].)”
Continuous discovery into the same mat­         to “[p]revent attorneys from taking                It is improper for an interrogatory
ter constitutes oppression, and Plaintiff       undue advantage of their adversary’s          to seek the identity, writings or the opin­
further objects on that ground.                 industry and efforts.” (Code of Civ.          ions of an expert prior to the exchange
(Professional Career Colleges v. Superior       Proc., § 2018.020.)                                      See Bloomfield et al, Next Page
                    By Bloomfied, DeArmas & Karns — continued from Previous Page
                                                                                                                 July 2009 Issue




of expert witnesses. (South Tahoe Public         satisfy a judgment or reimburse of pay­         which effectively abrogates the collateral
Utilities District v. Superior Court (1979) 90   ments made to satisfy a judgment.               source rule.
Cal.App.3d 135, [154 Cal.Rptr. 1].)              Section 2017.210 was enacted to permit                Counsel should begin educating the
Plaintiffs’ attorneys commonly encounter         a plaintiff to discover information about       judge with respect to this issue during
discovery requests which seek medical,           a defendant’s liability insurance in order      discovery, rather than waiting until after
biomechanical, or legal conclusions.             to facilitate settlement. The legislative       a verdict for plaintiff. Furthermore, a
Often the only source of information to          history, context and purpose of Section         more persuasive argument can be made
respond to the interrogatory is from an          2017.210 demonstrate that the section           that there is no evidentiary basis for a
expert witness. Since the work-product           was specifically intended to authorize          post-trial ruling by the judge where
protection includes the work-product of          limited discovery of a defendant’s liabili­     there is no admissible evidence of what
an attorney’s employees and agents, it           ty insurance coverage and not any other         the insurance company paid on behalf of
includes the opinions of employees and           type of insurance. (See Catholic Mut.           its insured.
agents. (Rodriguez v. McDonnell Douglas          Relief Soc. v. Superior Court (2007) 42               • Equally available: “Objection.
Corp. (1978) 87 Cal.App.3d 626, 647­             Cal.4th 358 [64 Cal.Rptr.3d 434].)              The information sought in this discovery
648. [151 Cal.Rptr. 399, 410-411].)                    Furthermore, personal financial           request is equally available to the pro­
      • Burdensome, oppressive, over­            information is within the “zone of priva­       pounding party. (See Code of Civ. Proc.,
broad: “Objection. This discovery                cy” protected by the California                 § 2030.220 subd. (c); and Alpine Mutual
request is so broad and unlimited as to          Constitution, article I, section 1. (Valley     Water Co. v. Superior Court (1968) 259
time and scope as to be an unwarranted           Bank of Nevada v. Superior Court (1975) 15      Cal.App.2d 45 [66 Cal.Rptr. 250].)”
annoyance, embarrassment, and is                 Cal.3d 652, 656 [125 Cal.Rptr. 553, 555]).            A party has an obligation to make a
oppressive. To comply with the request           The Insurance Information Act and               reasonable and good faith effort to
would be an undue burden and expense             Privacy Protection Act, Insurance Code          obtain requested information, “except
on the plaintiff. The request is calculated      section 793, et seq., limits the disclosure     where the information is equally avail­
to annoy and harass plaintiff. (See Code         of information in connection with insur­        able to the propounding party.” (Code of
of Civ. Proc., § 2030.090 subd. (b); and         ance transactions. (Griffith v. State Farm      Civ. Proc., § 2030.220 subd. (c).)
Columbia Broadcasting System, Inc. v.            Mutual Auto Ins. Co. (1990) 230                       • Irrelevant: “Objection. Irrelevant.
Superior Court of Los Angeles County             Cal.App.3d 59, 65-71 [281 Cal.Rptr. 165,        Plaintiff ’s _____ is irrelevant to the sub­
(1968) 263 Cal.App.2d 12, 19 [69                 167-171].) “Privileged information” refers      ject matter of this matter, and the infor­
Cal.Rptr. 348, 352].)”                           to any individually identifiable informa­       mation sought is not reasonably calculat­
      While this is often a valid objection,     tion that both “(1) relates to a claim for      ed to lead to the discovery of admissible
it is rarely a basis for not providing a         insurance benefits...(2) is collected in con­   evidence. (Code of Civ. Proc, §
response. Before standing on this objec­         nection with or in reasonable anticipation      2017.010.)”
tion, sincere “meet and confer” efforts          of a claim for insurance benefits...” (Ins.           Again, this may be an objection
should be made to resolve the issue.             Code, § 791.02 subd. (v).)”                     worth stating, but is an objection which a
      • Collateral source rule: “Objection.            Unless the case involves an excep­        court generally is not likely to sustain.
This discovery request seeks information         tion to the collateral source rule (Civ.        Broad discovery is permissible by both
not relevant to the subject matter of this       Code, § 3333.1 or Gov.Code, § 985), an          parties, and a relevancy objection in dis­
lawsuit and not calculated to lead to the        objection should be asserted to provid­         covery is largely disfavored.
discovery of admissible evidence in viola­       ing any information about health insur­               • Medical records/medical history:
tion of the collateral source rule. This         ance, health insurance policies or pay­         “Objection. This discovery request seeks
request is also an invasion of Plaintiff ’s      ments made by a health insurance or             to discover plaintiff ’s medical history
right to privacy. (See Hrnjak v. Graymar         other insurance company, including an           and/or treatment which is completely
(1971) 4 Cal.3d 725 [94 Cal.Rptr. 623];          objection to Form Interrogatory No. 4.1.        unrelated to the issues in this litigation
Pacific Gas & Electric Company v. Superior             Asserting such an objection is par­       in violation of plaintiff ’s constitutionally
Court (1994) 28 Cal.App.4th 174 [33              ticularly important in today’s climate in       protected right to privacy under Article
Cal.Rptr.2d 522]; and Helfend v. SCRTD           which some judges have interpreted              I, section I of the California
(1970) 2 Cal.3d 1 [84 Cal.Rptr. 173].)           Hanif v. Housing Authority of Yolo County       Constitution. (Vinson v. Superior Court
      Code of Civil Procedure section            (1988) 200 Cal.App.3d 635 [246                  (1987) 43 Cal.3d 833, 842 [239 Cal.Rptr.
2017.210 permits discovery only of               Cal.Rptr. 192] to require a post-verdict        292, 299]; and Davis v. Superior Court
“insurance ... [that] may be liable to sat­      hearing to reduce plaintiff ’s medical          (1992) 7 Cal.App.4th 1008, 1014-1016
isfy in whole or in part a judgment that         bills to the amount actually paid. CAALA        [9 Cal.Rptr.2d 331, 335].)
may be entered in the action or to               members and an increasing number of                   To require plaintiff to delineate his
indemnify or reimburse for payments              bench officers do not agree that the            or her entire medical history is not rea­
made to satisfy the judgment.” Health            Hanif case gives the defendant a right to       sonably calculated to lead to the discov-
insurance is not insurance available to          such a post-trial hearing or reduction,                   See Bloomfield et al, Next Page
                   By Bloomfied, DeArmas & Karns — continued from Previous Page
                                                                                                                 July 2009 Issue




ery of admissible evidence, and over­           tion in each and every request. (Code of             • Compilation required: “Objection:
broad. (Hallendorf v. Superior Court            Civ. Proc, § 2030.210 subd. (a)(3).)           The interrogatory would necessitate the
(1978) 85 Cal.App.3d 553, 557 [149                    • Preparing a defendant’s case and       preparation of a compilation, abstract,
Cal.Rptr. 564, 566.]) The disclosure of         legal contentions: “Objection. This dis­       audit or summary from documents in
medical history and medical records can­        covery request seeks the legal reasoning       plaintiff ’s possession; because such
not be compelled even though they may,          and theories of plaintiff ’s contentions.      preparation would be similarly burden­
in some sense, be relevant to the sub­          Plaintiff is not required to prepare the       some and/or expensive to both the pro­
stantive issues of litigation. The medical      defendant’s case. (Sav-On Drugs, Inc. v.       pounding and responding parties, plain­
records must be directly relevant to the        Superior Court of Los Angeles County           tiff herewith offers to permit review of
lawsuit. (In re Lifschutz (1970) 2 Cal.3d       (1975) 15 Cal.3d 1, 5 [123 Cal.Rptr. 283,      the following documents, _____________,
415, 435 [85 Cal.Rptr. 829, 842].)”             286].). A plaintiff is not required to pre­    from which propounding party can
      In an injury case, the injured par­       pare the case of his opponent. (Ryan v.        audit, inspect, copy or summarize.
ties’ privacy rights are subordinate to the     Superior Court of Los Angeles County           Responding party will make said docu­
right of discovery, but only as to relevant     (1960) 186 Cal.App.2d 813, 819, [9             ments available for review upon reason­
medical history. Plaintiffs can still assert    Cal.Rptr. 147, 151].)”                         able request. (Code of Civ. Proc, §
their right of privacy to protect the dis­            While it is proper to discover a         2030.230; and Brotsky v. State Bar of
closure of medical information not              plaintiff ’s legal contentions, the legal      California (1962) 57 Cal.2d 287 [19
directly relevant to the lawsuit. (Vinson v.    reasoning or theories behind the con­          Cal.Rptr. 153].)”
Superior Court (1987) 43 Cal.3d 833, 842        tentions are not discoverable. (Sav-On               • Continuing interrogatory:
[239 Cal.Rptr. 292, 299].) This applies to      Drugs, Inc. v. Superior Court of Los Angeles   “Objection: The question requires the
mental health records in an injury claim        County (1975) 15 Cal.3d 1, 5 [123              responding party to supplement an
where only “garden variety” emotional           Cal.Rptr. 283, 287].) A party is not obli­     answer to it that was initially correct, thus
distress is claimed. (Davis v. Superior         gated to perform legal research for            constituting a “continuing” interrogatory
Court (1992) 7 Cal.App.4th 1008, 1014­          another party. (Ibid.)                         in violation of Code of Civil Procedure
1016 [9 Cal.Rptr.2d 331, 334-336].)                   • Subparts, compound, conjunctive,       section 2030.060 subdivision (g).”
      • More than thirty-five special inter­    or disjunctive: “Objection. This inter­
rogatories: “Objection. This interrogato­       rogatory contains subparts, or a com­          Conclusion
ry fails to comply with Code of Civil           pound, conjunctive, or disjunctive ques­             These “standard” objections are a
Procedure section 2030.030 subdivision          tion in violation of Code of Civil             helpful starting point in dealing with
(b) as the propounding party has exceed­        Procedure section 2030.060 subdivision         interrogatory responses. Responding to
ed the limit of special interrogatories.”       (f).”                                          discovery without giving each question
      A party may not serve more than                 • Social Security information:           significant analysis can cause a lot of
thirty-five (35) total special interrogato­     “Objection. A party’s social security          damage to your case. On more impor­
ries without a supporting declaration set­      number is “clearly irrelevant to the sub­      tant issues, it is always worthwhile to
ting forth the need for the additional          ject matter of the action.” (Smith v.          check all citations and check for any
requests. (Code of Civ. Proc, § 2030.030.)      Superior Court of San Joaquin County           changes in the law. The CAALA Web site
Absent a declaration, the responding            (1961) 189 Cal.App.2d 6, 9, 13, [11            is also a good source of information
party is still obligated to respond to the      Cal.Rptr. 165, 168, 170].)”                    regarding any changes to the law.
first thirty-five (35) special interrogato­           • Tax returns and W-2s: “Objection.      Defense counsel will use the information
ries. (Code of Civ. Proc., § 2030.030           Information regarding tax returns,             contained in your client’s interrogatories
subd. (c).)                                     including income tax returns, W-2              at deposition, and throughout the case;
      • Prefatory instructions and defini­      and/or 1099 forms, is privileged under         so spend the time necessary to make
tions: “Objection. This set of discovery        federal and state law. (See Webb v.            sure your client has provided accurate
utilizes preliminary instructions and           Standard Oil Co. (1957) 49 Cal.2d 509          responses.
relies on preliminary/introductory defini­      [319 P.2d 621]; Brown v. Superior Court              Todd J. Bloomfield is a founding partner
tions in violation of Code of Civil Pro­        (1977) 71 Cal.App.3d 141 [139 Cal.Rptr.        of the Law offices of Rice & Bloomfield. His
cedure section 2030.060 subdivision (d).”       327]; Aday v. Superior Court (1961) 55         practice focuses on representing parties in the
      Written discovery sets often have         Cal.2d 789 [13 Cal.Rptr. 415]; Schnabel v.     litigation process whether protecting their civil
prefatory instructions and definitions.         Superior Court (1993) 5 Cal.4th 704 [21        interests or defending them in the administra­
This is improper. (Code of Civ. Proc, §         Cal.Rptr.2d 200].) This privilege is to be     tive arena. Bloomfield graduated from UCLA
2030.060 subd. (d).) Definitions are prop­      broadly construed. (Sav-on Drugs, Inc. v.      with honors obtaining a degree in business/
er, but must appear in the interrogatory        Superior Court (1975) 15 Cal.3d 1, 6-7         economics. He attended law school at USC
itself. (Ibid.) In response, state an objec­    [123 Cal.Rptr. 283, 287].)”                    and was admitted to the State Bar of
                    By Bloomfied, DeArmas & Karns — continued from Previous Page
                                                                                                                July 2009 Issue




California in 1991. He serves as vice-chair                .
                                                 Abir LLP As a member of the firm’s class            Bill Karns is an associate at the law
of the Education committee and is a member       action team, Lourdes represents consumers in   firm of Cheong, Denove, Rowell and Bennett.
of CAALA’s Board of Governors.                   a variety of cases including wage and hour     He specializes in litigation of catastrophic
      Lourdes DeArmas is an associate attorney   litigations. She may be contacted at           injury cases and business torts.
with Los Angeles-based Khorrami Pollard &        LDeArmas@kpalawyers.com.

								
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