Twenty-three years ago, the Legislature enacted the Civil Discovery Act of 1986 (Code Civ. Proc., § 2016.010, et seq.)1 (the Act), a comprehensive revision of pretrial discovery statutes, the central precept of which is that civil discovery be essentially self-executing. More than 10 years ago, Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 (Townsend) lamented the all too often interjection of "ego and emotions of counsel and clients" into discovery disputes, warning that "[l]ike Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement." (Id. at p. 1436.) Townsend counseled that the "informal resolution" of discovery disputes "entails something more than bickering with [opposing counsel]." (Id. at p. 1439.) Rather, the statute "requires that there be a serious effort at negotiation and informal resolution." (Id. at p. 1438.)
Clement v. Alegre (September 23, 2009), slip op., at 1-2.
So begins Clement v. Alegre (September 23, 2009), authored by the Court of Appeal (First Appellate District, Division Two). The case involves a dispute over a real property transaction, but that's not all that relevant. But it certainly isn't a class action matter, and it's not all that complex of a case. The issue, however, permeates civil litigation to its core. The discovery process is nearly, but not quite, broken. The higher the stakes (like in class actions), the more entrenched and obstructive the positions taken by counsel. Compromise is now a pleasant surprise. Bitterness is the norm. Clement reminds counsel and courts that it shouldn't be.
The discovery fight began with a set of 23 special interrogatories:
As described by the referee, plaintiffs‘ objections were of two types:
"Special Interrogatory No. 1 requested a description of 'all economic damages you claim to have sustained. . . .' Clement objected that the question was 'vague and ambiguous'. Clement's contention that the term 'economic damages' is vague is based on propounding party's failure to specifically refer to Civil Code section 1431.2, [subdivision] (b)(1) which defines economic damages. Thus, reasons Clement, 'Responding Party reasonably construes the failure to adopt this definition as expressing Propounding Party's intention to define economic damages in a manner different than as provided in California Civil Code Section [1431. 2, subdivision] (b)(1).' Clement goes on to supply a restricted definition of his own, to wit: the lost profit from the potential sale of the property to a third party buyer. Thus limited, he answers that he is aware of none."
"Special Interrogatory No. 2 asks: 'Please state the amount of such damages as identified in interrogatory number 1.' Clement's objections this time were (1) that this Special Interrogatory violates [section] 2030.060[, subdivision] (d) because it is not full and complete in itself, requiring, as it does, reference to the answer to an earlier interrogatory in the same set. He brands the reference to the answer to an earlier question as reference to 'other materials' in order to answer the question, citing Catanese v. Superior Court (1996) 46 Cal.App.4th 1159, 1164 [(Catanese)]." Plaintiff Clement also stated that he did not have to answer the interrogatory, because it would deny him 30 days to respond, as interrogatory No. 2 was a follow-up question that referred to the answer to interrogatory No. 1, and there could be no answer to interrogatory No. 1 in existence until the response to interrogatory No. 1 was rendered. The 30 days to answer interrogatory No. 2 would start after the answer to interrogatory 1. Finally, Clement stated that he would meet and confer in good faith with defendant to resolve any dispute, without the need for a motion. However, he also stated no response to a meet and confer communications could be given without "reasonable time and opportunity to consult with [his] attorney."
Slip op., at 3-4. A great deal of correspondence followed the initial objections. Eventually the defendant filed a motion to compel. An award of sanctions in excess of $5,000 followed soon thereafter, and an appeal of right was next. The Court of Appeal was not sympathetic:
Ample evidence supports the referee‘s determination that plaintiffs "deliberately misconstrued the question." Plaintiffs themselves quoted the statute defining the term in their initial response. Yet, they objected, and then deliberately provided an answer using a definition narrower than that provided by statute. Somewhat artfully, plaintiffs urge that Goldstein agreed in his January 23, 2008 letter to respond to any definition of economic damages that plaintiffs chose to provide. However, even after defendant's counsel advised that the term was being used as defined in the statute plaintiffs had cited, plaintiffs did not answer the question, but demanded that defendant supply the definition in writing and allow them an extra 30 days from the date of receipt in which to respond. Clearly this was "game-playing" and supports the referee's findings and the sanctions award.
Slip op., at 8. Then the Court noted that, though they believed the plaintiff fully intended to obstruct discovery, that intent was irrelevant:
Even assuming we agreed that neither plaintiffs nor Goldstein intended to be evasive — and we do not — their intent is not relevant here. "There is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed." (Cal. Civil Discovery Practice (Cont.Ed.Bar 4th ed. May 2009 update) § 15.94, p. 1440, citing Code Civ. Proc. § 2023.030, subd. (a); 2 Hogan & Weber, Cal. Civil Discovery (2d ed. 2004) Sanctions, § 15.4, p. 15-8 ["Whenever one party's improper actions — even if not 'willful' — in seeking or resisting discovery necessitate the court's intervention in a dispute, the losing party presumptively should pay a sanction to the prevailing party." (Fn. omitted)]; Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971.)
Slip op., at 8. Then the Court turned to the nonsense contention that an interrogatory that refers to a prior interrogatory answer is not "full and complete" by itself:
Plaintiffs do not contend that any of the interrogatories to which they objected on this basis were unclear, or that the interrogatories, considered either singly or collectively, in any way undermined or violated the presumptive numerical limit of 35 interrogatories of section 2030.030. Yet plaintiffs seized on what might have been at most an arguable technical violation of the rule, to object to interrogatories that were clear and concise where the interrogatories did not even arguably violate the presumptive numerical limitation set by statute. In so doing, plaintiffs themselves engaged in the type of gamesmanship and delay decried by the drafters of the Act.
Slip op., at 9. The Court goes on to explain that the prohibition on preface instructions, definitions, and references to other materials were enacted solely to prevent circumvention of the presumptive 35 interrogatory limit. More choice commentary:
Plaintiffs rely upon Catanese, supra, 46 Cal.App.4th at p. 1164, and upon Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) paragraph 8:979.5, which provides: "No incorporation of other questions: The requirement that each interrogatory be 'full and complete in and of itself' is violated where resort must necessarily be made to other materials in order to answer the question. [Citation.]" (Weil & Brown, supra, at p. 8F-21, citing Catanese at p. 1164, italics added.)
First, the paragraph heading — "No incorporation of other questions:" — is not mirrored by the substance of the paragraph, which identifies the violation as interrogatories requiring resort to "other materials" — not to a previous question — to answer the interrogatory. Second, the treatise clearly is relying upon Catanese, supra, 46 Cal.App.4th 1159, which involves a very different situation and which is demonstrably distinguishable. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 8:979.5, at p. 8F-21.)
In Catanese, supra, 46 Cal.App.4th 1159, after the plaintiff had been deposed for eight days, she propounded a series of five interrogatories inquiring whether the defendant contended that any of her answers to questions in the deposition were untruthful, and if so, what evidence supported that contention. (Id. at pp. 1161-1162.) The appellate court concluded that the interrogatories violated the "rule of 35" and the requirement of "self-containment" codified in the predecessor to the current statute. (Id. at pp. 1163-1164.) "This rule was violated here by interrogatories which necessarily incorporate, as part of each interrogatory, each separate question and answer in eight volumes of deposition. An interrogatory is not 'full and complete in and of itself' when resort must necessarily be made to other materials in order to complete the question. [Plaintiff] could have propounded interrogatories which inquire separately regarding each deposition question and answer, but if [she] had inquired separately in self-contained interrogatories, she would have violated the 'rule of 35.' " (Id. at p. 1164.) The court further explained that the "interrogatories as worded effectively posed upwards of 10,000 separate questions. It was a violation of the 'rule of 35' to propound these interrogatories without the supporting declaration required by [the statute]." (Id. at p. 1165.)
Slip op., at 11-12. The opinion should be read fully and carefully by all litigators, but more is worth repeating here:
"It is a central precept to the Civil Discovery Act of 1986 (§ 2016 et seq.) . . . that civil discovery be essentially self-executing. [Citation.]" (Townsend, supra, 61 Cal.App.4th at p. 1434.) A self-executing discovery system is "one that operates without judicial involvement." (2 Hogan & Weber, Cal. Civil Discovery, supra, § 15.4, pp. 15-7 to 15-8.) Conduct frustrates the goal of a self-executing discovery system when it requires the trial court to become involved in discovery because a dispute leads a party to move for an order compelling a response. (Ibid.) The Reporter‘s Notes to the predecessor to section 2023.030, subdivision (a) confirms that revision of the "substantial justification" provision was "intended to encourage judges to be more alert to abuses occurring in the discovery process. On many occasions, to be sure, the dispute over discovery between the parties is genuine, though ultimately resolved one way or the other by the court. In such cases, the losing party is substantially justified in carrying the matter to court. But the rules should deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists. And the potential or actual imposition of expenses is virtually the sole formal sanction in the rules to deter a party from pressing to a court hearing frivolous requests for or objections to discovery. . . . The proposed change provides in effect that expenses should ordinarily be imposed unless a court finds that the losing party acted justifiably in carrying his point to court. At the same time, a necessary flexibility is maintained, since the court retains the power to find that other circumstances make an award of expenses unjust – as where the prevailing party acted unjustifiably. The amendment does not significantly narrow the discretion of the court, but rather presses the court to address itself to abusive practices. . . ." (2 Hogan & Weber, Cal. Civil Discovery, supra, Appendix D, Reporter‘s Notes at pp. AppD-19 to AppD-21, quoting Advisory Committee to Federal Rule of Civ. Proc. § 34(a)(4) as amended in 1970, italics added; see Cal. Law Revision Com. com., 21A West‘s Ann. Code Civ. Proc. (2007) foll. § 2023.030, p. 64.)
Slip op., at 14-15. The Court concludes its discussion with a thorough review of the meet and confer efforts. I won't quote from that discussion here, but it's cut from the same cloth. I end with the Court's final admonitions:
Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that "[a]rgument is not the same as informal negotiation" (id at p. 1437); that attempting informal resolution means more than the mere attempt by the discovery proponent "to persuade the objector of the error of his ways" (id. at p. 1435); and that "a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing]counsel . . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." (Id. at p. 1439.)
Slip op., at 17-18. I'd say these reminders were well overdue.