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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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