Many Homeowners defending their Homes from pretender lenders either in State or Federal courts must know how to effectively push the Banks to the corner using litigation proceedings in order to get the Banks to either modify their mortgage loans or pay damages as a result of fraudulent mortgage transactions.
One of the tools that Homeowners and/or their foreclosure Defense Attorneys must be employed to accomplish that task during litigation proceeding is “interrogatory”, which is part of the Discovery process.
While every case is different and civil litigation styles vary widely from homeowner to homeowner or from lawyer to lawyer, the one constant in all litigation is basic preliminary written discovery. The goal of written discovery is to
permit all parties to identify essential issues necessary to evaluate the case and prepare for depositions and trial. Written discovery usually starts with form interrogatories and special interrogatories.
Unfortunately, all too often, the defense interrogatories are prepared by an inexperienced attorney, generating extra billing hours by propounding useless repetitive questions which are often sent without regard to your client’s privacy rights or the relevant issues in the case. The discovery propounded by defense firms are too often boilerplate forms which have not been tailored to the specific case and may not even have been reviewed by the propounding attorney.
Responding to this discovery can be an arduous and unpleasant task. Huge amounts of time can be consumed in preparing responses to some of the nonsense propounded.
What makes the problem even more challenging is that you must ensure that you accurately and completely respond to valid interrogatories. Failure to provide responsive information to proper interrogatories is both improper and unethical. It can also result in a bar to presenting that evidence at trial. Just as important, significant information about your case must be provided if you expect the defense to engage in meaningful mediation.
Given that backdrop, as to each interrogatory propounded, the first question you must ask yourself is “must I object?” The next thought you should have is “should I object,” followed by what “objections are available?” Once you have completed that analysis and asserted proper objections, the final question you must decide is whether to answer the question once the objection is stated.
While this article will focus on specific objections, the procedure in responding to discovery is important. Code of Civil Procedure section 2030.290 provides that if responses to interrogatories are not timely, all objections are waived, including the work product protection.
When must/should an objection be stated
If an objection is not stated in response to written discovery, that objection is waived. (Code of
Civ. Proc. section 2030.290; and Scottsdale Ins. Superior Court (1997) 59 Cal.App.4th 263, 273 [69
Cal.Rptr.2d 112, 118].) Although there may be reasons to postpone objections in other areas, it is good
practice in written discovery to state all applicable objections in your initial written response.
There are exceptions to waiver. For example, a delayed objection on the grounds of privacy.
(Heda v. Superior Court (1990) 225 Cal.App.3d 525, 530 [275 Cal.Rptr. 136, 139].) However, rather
than risk a court ruling regarding a waiver by failing to object, applicable privacy and privilege
objections should always be stated. Should the written discovery process land you in law and motion, a
practitioner who errors on the side of over-objecting will fair better than the attorney who missed a
Homeowner Attorney’s job is not only to prosecute your client’s case, but also to protect their client’s privacy.
When the defense starts seeking information not related to the issue at bar, or other personal information, it is the Attorney’s job to defend his client’s privacy, even if it might be easier to simply give the defense what they are asking for.
Should information be provided even if an objection is stated
For a plaintiff’s attorney, a discovery battle is an undue consumption of time, for a defense
attorney, it is a billing bonanza. If you win you lose and if you lose you lose. The best outcome for a
plaintiff’s attorney is to avoid the fight. Pick your battles wisely.
There is almost no risk in stating an objection if the request is answered anyway. Most requests
should be answered, even if an objection is stated. However, objecting to every request without
providing any answers is sure to end in a motion by the defense. If an improper question seeks
information that will not hurt your case and does not invade your client’s privacy, answer the question.
Nothing will generate more interest from the defense than a response which makes opposing counsel
think you are hiding something important.
There may be discovery requests that seek information defendant’s are entitled to, but the request
is improper in its form. There may be discovery requests that seek information that will not damage
your case. There may be discovery requests that require a showing of relevance that your judge will
eventually grant. In those situations, state the objection, but comply with the request. Specify that
compliance does not waive the objection: “Subject to and without waiving said objections plaintiff
responds as follows…”
Objecting to interrogatories
A Pulitzer has never been awarded for objections to written discovery. State objections simply
and clearly. Support your objections with legal authority. An objection should be stated just as it would
in a response to a meet and confer letter, and then into an opposition to a motion to compel. A judge
will notice and appreciate this kind of consistency.
Responding to interrogatories is enough work on its own without having to reinvent the wheel
and spend countless hours researching cases to support your position that defendant’s interrogatory is
vague, ambiguous, overbroad, burdensome, oppressive, and not likely to lead to admissible evidence.
Therefore, set forth below are suggested objections to the most common discovery issues.
Objections to interrogatories Argumentative:
“Objection. This discovery request as phrased is argumentative. It requires the adoption of an assumption, which is improper.” Any discovery request that requires the adoption of an assumption is argumentative. This is objectionable as to form. The classic example is “When did you stop beating your wife.” This question assumes facts that may not be true, but requires the answer adopt the assumption.
Already asked, repetitive discovery:
“Objection. This discovery request has, in substance, been previously propounded. (See Interrogatory/Request No. ___.) Continuous discovery into the same matter constitutes oppression, and Plaintiff further objects on that ground. (Professional Career Colleges v. Superior Court (1989) 207 Cal.App.3d 490, 493-494 [255 Cal.Rptr. 5, 7-8].)” Although not a forceful objection, if the defendant continuously seeks the same information,
irrespective of the phrasing of the request, it may be grounds for a protective order based upon oppression.
Attorney client privilege:
“Objection. The request seeks information subject to the attorney-
client privilege. The attorney-client privilege is broadly construed, and extends to “factual information”
and “legal advice.” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 601 [208 Cal.Rptr. 886, 891].)”
Communications between client and counsel are privileged. They are presumed to be made in
confidence, and broadly privileged against from discovery. This is an very broad privilege which
extends to “factual information” and “legal advice.”
Attorney work-product protection:
“This discovery request seeks attorney work product in violation of Code of Civil Procedure sections 2018.020 and 2018.030. (Cite appropriate case law and/or analysis of how the information sought is derivative in nature.)”
Code of Civil Procedure section 2018.030 subdivision (a) states, “[a] writing that reflects an
attorney’s impressions, conclusions, opinion, or legal research or theories is not discoverable under any
circumstances.” Subdivision (b) expands the protection to include any other attorney work-product,
“unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery
in preparing that party’s claim or defense or will result in injustice.”
The purpose of this protection is to “[p]reserve the rights of attorneys to prepare cases for trial
with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to
investigate not only the favorable the unfavorable aspects of those cases,” and to “[p]revent attorneys
from taking undue advantage of their adversary’s industry and efforts.” (Code of Civ. Proc. section
In analyzing the work-product privilege, courts have determined that only derivative materials
are protected. Derivative work-product is that information created by or resulting from an attorney’s
work on behalf of a client that reflects the attorney’s evaluation or interpretation of the law or the facts
involved. Nonderivative materials are those that are only evidentiary in character. These are not
protected even if a lot of attorney “work” may have gone into locating and identifying them. (
Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10 [66 Cal.Rptr. 280, 283] .
There is ample case law delineating derivative versus nonderivative work product. Objections
into this are should contain case law on point. The following cases will assist in tailoring your work
product objection: Mack v. Superior Court of Sacramento County; Williamson v. Superior Court of Los Angeles County (1978) 21 Cal.3d 829 [148 Cal.Rptr. 39]; Brown v. Superior Court of Butte County, (1963) 218 Cal.App.2d 430 [32 Cal.Rptr. 527]; and Nacht & Lewis Architects v. Superior Court (1996) 47 Cal.App.4th 214 [54 Cal.Rptr.2d 575].
Premature disclosure of experts:
“Objection. The interrogatory seeks premature disclosure of expert opinion in violation of Code of Civil Procedure sections 2034.210, 2034.220, and 2034.270. The interrogatory also seeks attorney work-product in violation of Code of Civil Procedure sections 2018.020 and 2018.030. Plaintiff has not decided on which, if any, expert witnesses may be called at trial; insofar as this interrogatory seeks to ascertain the identity, writings, and opinions of plaintiff’s experts who have been retained or utilized to date solely as an advisor or consultant, it is violative of the work-product privilege. (See South Tahoe Public Utilities District v. Superior Court
(1979) 90 Cal.App.3d 135 [154 Cal.Rptr. 1]; Sheets v. Superior Court (1967) 257 Cal.App.2d 1 [64 Cal.Rptr. 753];
and Sanders v. Superior Court , (1973) 34 Cal.App.3d 270 [109 Cal. Rptr. 770].)”
It is improper for an interrogatory to seek either the identity, writings or the opinions of an expert
prior to the exchange of expert witnesses. (South Tahoe Public Utilities District v. Superior Court
(1979) 90 Cal.App.3d 135, [154 Cal.Rptr. 1].) Plaintiff attorneys commonly encounter discovery
requests which seek medical, biomechanical, or legal conclusions. Often the only source of information
to respond to the interrogatory is from an expert witness. Since the work-product protection includes the
work-product of an attorney’s employees and agents, it includes the opinions of employees and agents.
(Rodriguez v. McDonnell Douglas Corp . (1978) 87 Cal.App.3d 626, 647-648. [151 Cal.Rptr. 399, 410-
Burdensome, oppressive, overbroad:
“Objection. This discovery request is so broad and unlimited as to time and scope as to be an unwarranted annoyance, embarrassment, and is oppressive.
To comply with the request would be an undue burden and expense on the plaintiff. The request is calculated to annoy and harass plaintiff. (See Code of Civ. Proc. section 2030.090 subd. (b); and Columbia Broadcasting System, Inc. v. Superior Court of Los Angeles County (1968) 263 Cal. App. 2d 12, 19 [69 Cal.Rptr. 348, 352].)”
While this is often a valid objection, it is rarely a basis for not providing a response. Before standing on this objection, sincere meet and confer efforts should be made to resolve the issue.
Collateral source rule: “Objection. This discovery request seeks information not relevant to the subject matter of this lawsuit and not calculated to lead to the discovery of admissible evidence in violation of the collateral source rule. This request is also an invasion of Plaintiff’s right to privacy. (See Hrnjak v. Graymar (1971) 4 Cal.3d 725 [94 Cal.Rptr. 623]; Pacific Gas & Electric Company v. Superior Court (1994) 28 Cal.App.4th 174 [33 Cal.Rptr.2d 522]; and Helfend v. SCRTD (1970) 2 Cal.3d 1 [84 Cal.Rptr. 173].)
Code of Civil Procedure section 2017.210 permits discovery only of “insurance…[that] may be liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.” Health insurance is not insurance available to satisfy a judgment or reimburse of payments made to satisfy a judgment. Code of Civil Procedure section 2017.210 was enacted to permit a plaintiff to discover information about a defendant’s liability insurance in order to facilitate settlement. The legislative history, context and purpose of Code of Civil Procedure section 2017.210 demonstrate that the section was specifically intended to authorize limited discovery of a defendant’s liability insurance coverage and not any other type of insurance. (See Catholic Mut. Relief Soc. v. Superior Court (2007) 42 Cal.4th 358 [64 Cal.Rptr.3d 434].)
Furthermore, personal financial information is within the “zone of privacy” protected by the California Constitution, Article I, §1. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656 [125 Cal.Rptr. 553, 555]). The Insurance Information Act and Privacy Protection Act, Insurace Code section 793, et seq., limits the disclosure of information in connection with insurance transactions. (Griffith v. State Farm Mutual Auto Ins. Co.
(1990) 230 Cal.App.3d 59, 65-71 [281 Cal. Rptr. 165, 167-171].) “Privileged information” refers to any individually identifiable information that both “(1) relates to a claim for insurance benefits…(2) is collected in connection with or in reasonable anticipation of a claim for insurance benefits…” (Ins. Code section 791.02 subd. (v).)”
Unless the case involves an exception to the collateral source rule (Civil Code section 3333.1 or Government Code section 985), an objection should be asserted to providing any information about health insurance, health insurance policies or payments made by a health insurance or other insurance company, including an objection to Form Interrogatory No. 4.1. Asserting such an objection is particularly important in today’s climate in which some judges have interpreted Hanif v. Housing Authority of Yolo County (1988) 200 Cal.App.3d 635 [246 Cal.Rptr.
192] to require a post-verdict hearing to reduce plaintiff’s medical bills to the amount actually paid.
An increasing number of bench officers do not agree that the Hanif case gives the defendant a right to such a post-trial hearing or reduction, which effectively abrogates the collateral source rule.
Counsel should begin educating the judge with respect to this issue during discovery, rather than
waiting until after a verdict for plaintiff. Furthermore, a more persuasive argument can be made that
there is no evidentiary basis for a post-trial ruling by the judge where there is no admissible evidence of
what the insurance company paid on behalf of its insured.
Equally available: “Objection. The information sought in this discovery request is equally available to the propounding party. (See Code of Civ. Proc. section 2030.220 subd. (c); and Alpine Mutual Water Co. v. Superior Court (1968) 259 Cal.App.2d 45 [66 Cal.Rptr. 250].)”
A party has an obligation to make a reasonable and good faith effort to obtain requested information, “except where the information is equally available to the propounding party.” (Code of Civ. Proc. section 2030.220 subd. (c).)
Irrelevant: “Objection. Irrelevant. Plaintiff’s _____ is irrelevant to the subject matter of this
matter, and the information sough is not reasonably calculated to lead to the discovery of admissible
evidence. (Code of Civ. Proc. section 2017.010.)”
Again, this may be an objection worth stating, but is an objection which a court generally is not
likely to sustain. Broad discovery is permissible by both parties, and a relevancy objection in discovery
is largely disfavored.
Medical records/medical history:
“Objection. This discovery request seeks to discover plaintiff’s medical history and/or treatment which is completely unrelated to the issues in this litigation in violation of plaintiff’s constitutionally protected right to privacy under Article I, Section I of the California Constitution. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842 [239 Cal.Rptr 292, 299]; and Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014-1016 [9 Cal.Rptr. 2d 331, 335].) To require plaintiff to delineate his or her entire medical history is not reasonably calculated to lead to the discovery of admissible evidence, and overbroad. (Hallendorf v. Superior Court (1978) 85 Cal.App.3d 553, 557 [149 Cal.Rptr. 564, 566.]) The disclosure of medical history and medical records cannot be compelled even though they may, in some sense, be relevant to the substantive issues of litigation. The medical records must be directly relevant to the lawsuit. (In re Lifschutz (1970) 2 Cal. 3d 415, 435 [85 Cal.Rptr. 829,842].)”
In an injury case, the injured parties privacy rights are subordinate to the right of discovery, but
only as to relevant medical history. Plaintiffs can still assert their right of privacy to protect the
disclosure of medical information not directly relevant to the lawsuit. (Vinson v. Superior Court (1987)
43 Cal.3d 833, 842 [239 Cal.Rptr. 292, 299].) This applies to mental health records in an injury claim where only “garden variety” emotional distress is claimed. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014-1016 [9 Cal.Rptr.2d 331, 334-336].)
More than thirty-five special interrogatories:
“Objection. This interrogatory fails to comply with Code of Civil Procedure section 2030.030 subdivision (b) as the propounding party has exceeded the limit of special interrogatories.”
A party may not serve more that thirty-five (35) total special interrogatories without a supporting declaration setting forth the need for the additional requests. (Code of Civ. Proc. section 2030.030.)
Absent a declaration, the responding party is still obligated to respond to the first thirty-five (35) special
interrogatories. (Code of Civ. Proc. section 2030.030 subd. (c).)
Prefatory instructions and definitions:
“Objection. This set of discovery utilizes preliminary instructions and relies on preliminary/introductory definitions in violation of Code of Civil Procedure section 2030.060 subdivision (d).”
Written discovery sets often have prefatory instructions and definitions. This is improper. (Code of Civ. Proc. section 2030.060 subd. (d).) Definitions are proper, but must appear in the interrogatory itself. (Id.) In response, state an objection in each and every request. (Code of Civ. Proc. section 2030.210 subd. (a)(3).)
Preparing a defendant’s case and legal contentions: “Objection. This discovery request seeks
the legal reasoning and theories of plaintiff’s contentions. Plaintiff is not required to prepare the
defendant’s case. (Sav-On Drugs, Inc. v. Superior Court of Los Angeles County
(1975) 15 Cal.3d 1, 5 [123 Cal.Rptr. 283, 286].). A plaintiff is not required to prepare the case of his opponent. (Ryan v. Superior Court of Los Angeles County (1960) 186 Cal.App.2d 813, 819, [9 Cal.Rptr. 147, 151].)”
While it is be proper to discover a plaintiff’s legal contentions, the legal reasoning or theories
behind the contentions are not discoverable. (Sav-On Drugs, Inc. v. Superior Court of Los Angeles
County (1975) 15 Cal.3d 1, 5 [123 Cal.Rptr. 283, 287].) A party is not obligated to perform legal
research for another party. (Id.)
Subparts, compound, conjunctive, or disjunctive: “Objection. This interrogatory contains
subparts, or a compound, conjunctive, or disjunctive question in violation of Code of Civil Procedure
section 2030.060 subdivision (f).”
Social Security Information: “Objection. A party’s social security number is “clearly irrelevant to the subject matter of the action.” (Smith v. Superior Court of San Joaquin County (1961)
189 Cal.App.2d 6, 9, 13, [11 Cal.Rptr. 165, 168, 170].)”
Tax returns and W-2s: “Objection. Information regarding tax returns, including income tax returns, W-2 and/or 1099 forms, is privileged under federal and state law. (See Webb v. Standard Oil Co. (1957) 49 Cal.2d 509 [319 P.2d 621]; Brown v. Superior Court (1977) 71 Cal.App.3d 141 [139 Cal.Rptr. 327]; Aday v. Superior Court
(1961) 55 Cal.2d 789 [13 Cal.Rptr. 415]; Schnabel v. Superior Court (1993) 5 Cal.4th 704 [21 Cal.Rptr.2d 200].) This privilege is to be broadly construed. (Sav-on Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 6-7 [123 Cal.Rptr. 283, 287].)”
Compilation required: “Objection: The interrogatory would necessitate the preparation of a
compilation, abstract, audit or summary from documents in plaintiff’s possession; because such
preparation would be similarly burdensome and/or expensive to both the propounding and responding
parties, plaintiff herewith offers to permit review of the following documents, _____________, from
which propounding party can audit, inspect, copy or summarize. Responding party will make said
documents available for review upon reasonable request. (Code of Civ. Proc. section 2030.230; and
Brotsky v. State Bar of California (1962) 57 Cal. 2d 287 [19 Cal.Rptr. 153].)”
Continuing interrogatory: “Objection: The question requires the responding party to supplement an answer to it that was initially correct, thus constituting a “continuing” interrogatory in violation of Code of Civil Procedure section 2030.060 subd. (g).”
These “standard” objections are a helpful starting point in dealing with interrogatory responses.
Responding to discovery without giving each question significant analysis can cause a lot of damage to
your case. On more important issues, it is always worthwhile to check all citations and check for any changes in the law.
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