Abuse of the Discovery Act

Last week I reported on abuses of the summary judgment motion.  Now abuses of the discovery procedure are under examination.  In Clement v. Alegre (2009) 177 Cal.App.4th 1277, plaintiffs appeal from the imposition of $6,632.50 as a discovery sanction because they interposed objections to special interrogatories which the discovery referree concluded were "unreasonable, evasive, lacking in legal merit and without justification."  The appellate court agreed and affirmed the order.

The case involves a real estate dispute.  Defendant served two sets of 23 special interrogatories on the individual plaintiff and the plaintiff corporation.  The objections included an objection that the term "economic damages" was vague and ambiguous, partly because the defendant failed to refer to Civil Code section 1431.2, which defines the term.  Plaintiffs also objected that a question that asked the amount of damages identified in answer to another interrogatory was not "full and complete."  And so on . . .

The parties engaged in unproductive meet-and-confer letters, arguing the merits of their respective positions.  The matter was heard by a discovery referee, who found the objections were without merit, among other things.  The referee recommended plaintiffs be ordered to respond and pay sanctions.  The order was ultimately adopted by the trial court.

In affirming the order, the appellate court held that sanctions may be imposed for misuse of the discovery process even if the misuse is not willful. It noted plaintiffs had referred to the statutory definition and then submitted responses that were narrower than the definition.

As to the objection that the interrogatories were not "full and complete," the court interpreted this objection to prohibit reference to other materials or documents, or incorporation by reference, to undermine the numerical limit on interrogatories.  "To conclude otherwise in these circumstances would require a cumbersome redrafting of questions and potentially multiple rounds of discovery, undermining the Act's aim of clarity and simplicity and returning to the era of 'paper[ing] to death' the opposition."

The court also addressed the meet-and-confer process, finding the evidence demonstrated the parties had reached an impasse; however, it found the plaintiff engaged in "game-playing," which was designed to delay the proceedings.  It concluded the referee's findings and award were supported by the record, and furthermore, the trial court did not abuse its discretion. The court confirmed that the discovery statutes require "'a serious effort at negotiation and informal resolution.'"  It went on to state:

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' . . . that attempting informal resolution means more than the mere attempt by the discovery proponent 'to persuade the objector of the error of his ways' . . .' 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.'"

This might be a good case to hang on to in case of frivolous objections or meet-and-confer discussions that lack any genuine attempt to cooperate and resolve the discovery dispute.