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August 29th, 2018

By S.J. Walker

Preliminary written discovery is a constant in all of litigation. The goal: to permit parties to evaluate the case, identify issues, and prepare for depositions and trial. Much of written discovery begins with form interrogatories and special interrogatories. Unfortunately, novice lawyers, and possibly some seasoned lawyers, forget that the defense counsel will use the information in your client’s interrogatories at deposition and throughout the case. As such, making sure a proper analysis is done on each question will ensure your client provides the proper and accurate responses. It is the professional responsibility of the lawyer to represent their client competently and diligently, and without a proper analysis of each question, an attorney may be falling short of one, if not both, of these professional duties.

Analysis Step 1: Must / Should I object?

Begin by asking yourself “Must/should I object.” There are certain and pertinent moments when an attorney must object in order to protect attorney-client privilege, the client’s privacy, or to preserve an objection. Answering interrogatories without regard to the privacy or confidentiality of your client will lead the attorney on a quick road to sanctions, malpractice, or disbarment. This seems simple enough, but many times attorney’s do not take the time to analyze and ensure that the answer they provide to a special interrogatory is not confined to attorney-client privilege, client’s right to privacy, or if the interrogatory is objectionable. As far as I can see, there are multiple reasons an attorney will “mess up” on responding to the interrogatory: (1) an attorney is busy, and they forget or utterly disregard the power of the interrogatory; (2) the lawyer is not quite at the level of competency he/she needs to be at (such as a novice attorney); and/or (3) they simply missed an objection or did not know that objection was proper (again, lack of competency).

“Must / Should I object” step is arguably the most important step in analyzing a response to an interrogatory. If responses to interrogatories are not timely, all objections are waived. Thus, if you miss your objection then it is not preserved, which can lead to multiple consequences. A practitioner who errors on the side of over-objecting will fair better than the attorney who missed a significant objection. Slow down, analyze, and object.

Analysis Step 2: Should Information Be Provided Even If An Objection Is Stated?

The second question to ask is: “Should information be provided even if an objection is stated?” Pick your battles wisely. Getting into a discovery battle is an excessive depletion of a Plaintiff’s time, and a serious billing nightmare for a defense attorney. Thus, it is important to avoid the fight if you can.

Most requests should be answered, even if an objection is stated. But objecting to every request without providing an answer will surely lead to a motion to compel evidence. Nothing will create a response from defense more than a response that insinuates that you are hiding something. Some requests are improper in their form, yet the other side is entitled to the information. Other requests seek information that may damage your case. Some require a showing of relevance that a judge will eventually grant. In these situations, state your objection, but comply with the request. Specify that you are not waiving your objection by stating, “Subject to and without waiving the objections, plaintiff responds as follows. . .”

Analysis Step 3: What Objection Should I Make?

Having an arsenal of objections will help an attorney to know what to object and how to do it. Many objections have case law attached to them, and an attorney should cite to that case law. Using legal authority will assist in future battles if a motion to compel arises and the lawyer must write an opposition to the motion to compel. It creates consistency within the documents that make an attorney’s opposition stronger. Make the objection simple and clear, it does not need to be an elaborate, scholarly work of art. Don’t reinvent the wheel. Find tools and articles of cases that have been used in the past. Below are some objections to be made.

*Argumentative: Objection. This discovery request as phrased is argumentative. It requires the adoption of an assumption which is improper.

-Example: “When did you stop taking the drug?” This question assumes facts that might not be true, but requires the answer to adopt the assumption. The client may never have been taking the drug in the first place.

*Already Asked/Repetitive: Objection. This discovery request has already been asked (see Interrogatory/Request No. ___) Continuous discovery into the same matter constitutes oppression and Plaintiff further objects on this ground.

Find a case, and cite to it that seems relevant. Although this is not an assertive objection, if the defendant continuously seeks the same information it can be grounds for a protective order based on oppression. Thus, bring attention to it by objecting.

*Attorney Work-Product Protection: Objection. This discovery request seeks attorney work product.

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.” 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 facts involved. Non-derivative material includes those that are only evidentiary in nature.

There is plenty of case law to help determine if material is derivative or non-derivative in its nature. As such, use cases that are on point to tailor this objection.

*Collateral Source Rule: Objection. This discovery request seeks information not relevant to the subject matter of this lawsuit and is not calculated to lead to the discovery of admissible evidence.

This specific rule is usually applied to insurance. Code of Civil Procedure section 2017.210 permits discovery only of “Insurance. . . [that] may be liable to satisfy in whole or in part a judgement 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 judgement or reimburse of payments made to satisfy the judgment.

Another example that could satisfy this objection, would be the violation of your clients right to privacy. For example, personal financial information is within this protection under the California Constitution, article I, section 1, and thus would suffice to fit under a collateral rule objection.

As there are numerous other objections that could be had, I will stop here. But it is imperative to know your objections, how to use them, and to argue your objection with quick concise sentences and cited authority. Authority will assist in getting your objections through a motion to compel. It is an obvious fact that attorney’s are busy and cannot spend a considerable amount of time on interrogatories. Because of this lack of time, spend a few hours compiling a list of objections, case law that corroborates those objections, and use that list to assist you in saving time on interrogatories. Knowing your objections will surely save time on your interrogatories. Thus, take the three steps above and prepare your interrogatory to avoid inadvertently damaging your case by failing to object, or providing too much information.

If you or a loved one has been seriously injured contact your San Diego Personal Injury today.


July 25th, 2018

Company car accident reports can be essential to changing the way a case turns out. An accident report has the power to change what may have been heading straight to litigation, to a settlement agreement in just a matter of days. Why? Well the answer is simple, the information provided in accident reports is a potential gold mind: i.e. party admissions from the defendant. However, getting the accident report is not so simple.

It is clear as to why a company would want to keep their accident report secret, and if they are keeping it a secret, usually there is something YOU should know in the report. So, in order to elevate yourself from simply being a good attorney to being a great attorney, get that accident report.

Step 1: Figure out if an accident report exists:

To figure out if an accident report exists, the easiest way to do this is to ask for it in the very first request for production. Be aware, the language used in this request must be specific in order to avoid the boilerplate objections of “overbroad, vague and ambiguous.” For example, “Any and all accident investigation or incident reports for the SUBJECT INCIDENT,” is likely a sufficient request. However, knowing company attorney’s, the accident report is still likely to remain in their possession because the company will claim that the document flows from the work product doctrine or is privileged. Being a great attorney is foreseeing such a consequence as this. As such, your last request for production should demand a privilege log in the event that the opposing counsel withholds any documents or other information based on a claim of privilege, work-product, or otherwise.

In the alternative, you can ask for a request for production of documents with a notice of a deposition of the defendant employee and the defendant’s person most qualified. If you do this, it is important to ask, “Any and all accident investigation or incident reports for the SUBJECT INCIDENT and the purpose(s) of those reports.” Remember to meet and confer and subsequently file a motion to compel if opposing counsel persists on not providing the documents. The request for the purpose of those reports will be useful in creating an argument against work product and privilege in order to get the documents you need released.

Step 2: If an accident report does exist, must the defendant produce it?

As with most things in the law, the answer is that it depends. If it is under the work-product doctrine, the document itself must “reflect” an attorney’s impressions, conclusions, research, etc. Usually, an accident report is reported by a supervisor or an employee. These people are non-lawyers and thus necessarily do not fall under the work product doctrine. This is something that is essential to discover to assist in a motion to compel.

Secondly, California follows the “Dominate Purpose” test to determine if a document is privileged. This is specifically discussed in D.I. Chadbourne, Inc. v. Superior Ct., (1964) 60 Cal.2d 723. If the dominate purpose of the document is not necessarily for litigation, then it does not likely fall under privilege. For example, it the main purpose of the document is to prevent an accident from happening again, its dominate purpose is not likely for litigation but for safety. Furthermore, if a company uses an accident report every single time there is an accident, it is likely as a safety precaution rather than litigation purpose. However, a document may have multiple purposes. If that is the case, your job is to get testimony and argue that the dominate purpose of these documents is not for litigation, but rather for some other purpose. Find that purpose!

Step 3: Get the Testimony to Help You in Your Motion to Compel.

This can be trying, but with skill and technique you will likely get what you are looking for out of the defendant employee of the person most qualified. There are a number of different ways to do this. I suggest always starting with the first route I will provide here, and the second and third steps can differ depending on your case.

First, confirm with the witness you are deposing that an accident report actually exists. Then, ask whether they reviewed the report to prepare for their deposition. Next, ask if reviewing the report refreshed their memory. If they answer yes to these three questions, Evidence Code section 771(a) is enacted which provides in part, “if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party.” After this testimony, meet and confer and ask if the document will be produced in light of the testimony. Make sure to specifically cite to this Evidence Code. Likely the answer will be no, but they will have no legal basis for their argument.

If a document exists, but the answer to the latter two questions aforementioned is no, then it is important that you get testimony that debunks the argument that the accident report falls under the work product doctrine or is privileged. To do this, it is important to first lead the witness into the questioning to ensure that their mind is in the right place to get the answers you are looking for. For example, beginning a conversation on the importance and practice of safety in the workplace will likely get the witness on the track to thinking that the dominate purpose of the document is to protect safety. Thus, when you later ask what they believe the “dominate purpose” of the accident report is, they will likely provide you with the answers you desire.

Once you have lead the witness into your questioning, start with who prepared the document. It is easy to discern and debunk the work-product doctrine, especially if no attorney prepared it. Next, move into the dominate purpose. Ask questions such as: “does your company always fill out accident reports?; do they look after safety?; how do they train you on safety?” The more you can find a main purpose for the report rather than litigation; the easier your job will be when filing a motion to compel.

After you get the information you need, meet and confer in light of new evidence, then write your motion to compel.

When your motion to compel is granted, your whole case can change. The accident report can change what would have been a trial to a settlement much higher than expected. It is your job to be zealous, competent, and diligent for your client. As such, staying up to date on tricks like the one discussed in this blog will provide you with an advantage and a means to fulfill your duties.

For a more detailed analysis on this issue See:

Andrew Owen, The advocate Magazine 24-31, (April 2018).

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