Interrogatories and demands to produce [MCLE]


February 2017

By Patricia M. Lucas and Gary Nadler

The objective of this article and accompanying self-assessment test is to provide bench officers and lawyers with an overview of two important methods of written civil discovery in California. By reading the article and taking the accompanying self-study test, readers will learn about interrogatories and demands to produce documents.


Interrogatories are authorized by Code of Civil Procedure Section 2030.010 et seq. (all further statutory citations are to sections in this code). Under this provision, a party may request that another party answer questions under oath relating to whether the party is making a certain contention, or the facts, witnesses and writings upon which the contention is based.

Demands to produce documents are authorized by 2031.010 et seq. Under this statute, a party may demand that another party produce and permit the party to inspect and copy a document that is in the possession, custody, or control of the party on whom the demand is made. (Requests for admissions under 2033.010 are another important tool used to obtain written information from an opposing party, but they are outside the scope of this article.)

An important limitation regarding interrogatories is that a party may only propound a limited number of them. In contrast, the authorizing statute sets forth no such limit regarding demands to produce documents. See 2031.030. Only 35 specially prepared interrogatories may be propounded as a matter of right, although there is no limit to the number of official form interrogatories which may be used. 2030.030(a). Special interrogatories are drafted to fit the relevant subject matter at issue in the action (2030.030(a)(1)), whereas form interrogatories seek only basic information (2033.710; see, e.g., Judicial Council form interrogatory DISC-001).

Additional special interrogatories are permitted based on a declaration of necessity addressing the need due to any of the following: (1) the complexity or the quantity of the existing and potential issues in the particular case; (2) the financial burden on a party entailed in conducting the discovery by oral deposition; or (3) the expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation or search of files or records to supply the information sought. (2030.040(a).) If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories are unwarranted, the propounding party has the burden of justifying the number of these interrogatories. 2030.040(b).

With regard to both interrogatories and demands to produce, the propounding party must number each set of interrogatories or demands consecutively. 2030.060(a), 2031.030(a)(1). In the first paragraph immediately below the title of the case, the party must list the identity of the propounding party, the set number, and the identity of the responding party, and each interrogatory or demand in a set must be separately set forth and identified by number or letter. 2030.060(b)-(c), 2031.030(b)-(c).

Propounding and Answering Interrogatories

Each interrogatory must be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories unless it is the type of language approved by the Judicial Council. 2030.060(d). Any term specially defined in a set of interrogatories shall be typed with all letters capitalized wherever that term appears. No specially prepared interrogatory shall contain subparts, or a compound, conjunctive, or disjunctive question. 2030.060(e)-(f).

In Clement v. Alegre, 177 Cal. App. 4th 1277 (2009), the court affirmed the practice of referring back to a previous interrogatory within an interrogatory, so as to effectuate the purpose of the requirement that each interrogatory must be full and complete in and of itself. The court distinguished between an objection to an interrogatory on the basis that it sought to evade the purpose of discovery - to provide an expeditious and self-executing process--and merely a technical violation of the rule.

Responses to interrogatories must be served within 30 days after service of the discovery, unless the court has granted a motion to extend or shorten the time to respond. 2030.260(a). For unlawful detainer actions, there is a five-day response time. 2030.260(b). The time to respond may also be extended by agreement. The agreement may be informal, but must be confirmed in writing and specify the extended date for a response. 2030.270.

The party to whom interrogatories have been propounded shall respond in writing separately to each interrogatory, under oath, by (1) an answer containing the information sought to be discovered, (2) an exercise of the party's option to produce writings, or (3) an objection to the particular interrogatory. 2030.210(a). If an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection or privilege must be set forth clearly in the response. 2030.240(b).

Interrogatories may be used to discover the existence of documents in the other

party's possession. See e.g., Fellows v. Superior Court, 108 Cal. App. 3d 55 (1980). An adequate response to such an interrogatory must include a description of the document. Deyo v. Kilbourne, 84 Cal. App. 3d 771 (1978); Hernandez v. Superior Court, 112 Cal. App. 4th 285 (2003). If the interrogatory seeks to discover the existence of a document that the other party claims is privileged, the mere existence of the document is not protected by privilege. Smith v. Superior Court, 189 Cal. App. 2d 6, 12 (1961).

A party is obliged to investigate when responding to interrogatories. 2030.220 provides that each answer in a response to interrogatories shall be as "complete and straightforward as the information reasonably available to the responding party permits," and that if "the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party ... shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations" unless the information is equally available to the propounding party. In that regard, stock answers such as "the responding party is compiling the information requested and will provide a further response when completed" can be evasive and a misuse of discovery. See Collisson & Kaplan v. Hartunian, 21 Cal. App. 4th 1611 (1994); Liberty Mutual Fire Insurance Co. v. LcL Administrators, Inc., 163 Cal. App. 4th 1093 (2008).) Note that a willful failure to provide facts in response to interrogatories may lead to exclusion of evidence at trial. See Thoren v. Johnston & Washer, 29 Cal. App. 3d 270 (1972); Biles v. Exxon Mobil Corporation, 124 Cal. App. 4th 1315 (2004).

Making and Responding to Document Demands

Document demands must be reasonably particularized from the standpoint of the party who is subjected to the burden of producing the materials. Calcor Space Facility, Inc. v. Superior Court, 53 Cal. App. 4th 216 (1997). To that end, the demand must "[d]esignate the documents, tangible things, land or other property, or electronically stored information to be inspected, copied, tested, or sampled either by specifically describing each individual item or by reasonably particularizing each category of item." 2031.030(c)(1). The demand must also specify a reasonable time and place for making the inspection, copying and performing any related activity, and specify any related activity that is being demanded in addition to an inspection and copying, as well as the manner in which that related activity will be performed, and whether that activity will permanently alter or destroy the item involved. 2031.030(c)(2)-(4).

As with interrogatories, responses must be served within 30 days after service of the discovery, subject to court-ordered extensions or shortening of time, agreements to extend time, and the five-day response time for unlawful detainers. 2031.260, 2031.270. The party must either state it will comply, or that it lacks the ability to comply, or that it objects to the demand. 2031.210(a). If the demand is objectionable, the objection made must be stated clearly, including the extent of and specific ground for the objection. 2031.240(b)(2).

If the responding party objects to the demand for inspection of an item or category of item based on a claim of privilege, the response must include enough information for other parties to evaluate the merits of the claim, including if necessary a "privilege log." 2031.240(c)(1). The purpose of a privilege log is to provide a specific factual description of documents to aid in the substantiating of a claim of privilege in connection with a request for document production. Hernandez v. Superior Court, 112 Cal. App. 4th 285 (2003). A specific factual description of documents permits allows a court to evaluate the claim of privilege. Blue Ridge Ins. Co. v. Superior Court, 202 Cal. App. 3d 339 (1988); Motown Record Corp. v. Superior Court, 155 Cal. App. 3d 482 (1984).

A party claiming privilege has the burden of establishing the preliminary facts necessary to support its exercise. For example, the privilege log may support that there is an attorney-client privilege by identifying correspondence as a communication made in the course of an attorney-client relationship. "Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply." Costco Wholesale Corp. v. Superior Court, 47 Cal. 4th 725 (2009).

Failure to provide a privilege log is not a proper basis for finding that a privilege has been waived. Only if a party fails to file a timely response to an inspection demand can there be a waiver of privilege in this context. Korea Data Systems Co. v. Superior Court, 51 Cal. App. 4th 1513 (1997).

Any documents demanded shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand. If necessary, the responding party, at the reasonable expense of the demanding party, must translate any data compilations included in the demand into reasonably usable form. 2031.280(a) and (e).

If in responding to a demand, disclosures are inadvertently made, there may be no intent to waive thus invalidating claims of waiver. "When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified." State Comp. Ins. Fund v. WPS, Inc., 70 Cal. App. 4th 644 (1999). Pursuant to this case, the court must take into account the subjective intent of the privilege holder and the relevant surrounding circumstances in order to decide whether or not the privilege is waived.

Lastly, a word about electronic discovery. 2031.210(d) provides that "[i]f a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. By objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the responding party preserves any objections it may have relating to that electronically stored information." Electronic discovery is also addressed in 2031.060, 2031.280, 2031.285, 2031.310, 2031.320 and 1985.8.

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