Litigation Warrior Series – Discovery responses to form interrogatories
After a lawsuit is filed in California, the parties are entitled to engage in “discovery.” This is basically each parties opportunity to gather evidence to help them with their burden of proof in a case. The six main types of discovery tools are:
1. Form interrogatories
2. Special interrogatories
4. Requests for Admissions
5. Requests for production of documents
This blog discusses the form interrogs (“rogs”) as we sometimes call them as lawyers.
What is a form interrogatory?
In California, litigants can send out the judicial council form interrogatories to the opposing party and have them answer the standard questions that are already pre-printed on the form. Simply check the boxes next to the questions you want to ask, define what the “incident” means, and serve them on opposing parties and other counsel that have appeared in the case. When yo do this, the opposing party that you served the Rogs on will have 30 days to respond, unless extensions are given (which you should always get in writing).
The form rogs ask basic questions such as:
- Educational background
- Insurance information
- Background information on corporate entity
- Requests to explain and describe mental and emotional injuries
- Demand to identify drugs taken (both prescription and non-prescription) 24 hours before the incident
- Questions relating to damage to real property
- Background medical questions
- Information about persons that made statements about the incident
- Potential witnesses to the incident
- Explanation of lost income and how that is being calculated
- Demand to explain statutory or regulatory violations at issue
- Requests to highlight any other complaints attributable to the incident
- State the grounds for denials and affirmative defenses
- Requests to clarify responses to requests for admissions
- Questions about any contracts or agreements that the parties may be dealing with
These are just a few examples of the types of questions. The form interrogatories are used to get some baseline information from you opponent at the early stages of a California civil lawsuit in a Superior Court. Note that these are not used in federal court.
Attorney Steve’s Top 10 Tips to help you properly respond to Form Rogs!
When you are served with a set of interrogs, you need to review them closely and see what they are asking. You can use pleading paper to respond, and you should have the caption of the case, the name of the party serving the rogs, the name of the party answering the rogs, list a definitions section for any objections you might make and also have a sworn verification for the party answering the rogs to sign. Here are some general tips to help you properly respond:
1. Make sure they were properly served on you (usually personal or mail service will suffice)
2. Review them closely to see what types of questions they are asking you (which boxes did they check)?
3. Set aside a full weekend or possibly more, to respond.
4. Respond when you are well rested, and in a patient mood. Turning on some soft mood music is one of the things I do, for example, Pandora.
5. Setup your pleading paper so that you are ready to go
6. Type out all of the questions your opponent is asking, including all the subparts of each question. This will help you respond better. If you are not good at typing, pay someone to type if for you
7. Go down your pleading paper one by one, and simply answer (to the best of your knowledge) your responses to each questions, including a “YES” or “NO” if the question call for such, and answer ALL SUBPART. This can be a tedious process, but you want to make sure you are doing this or you might push the other side into a “meet and confer” situation or “motion to compel.”
8. Be direct, and answer with as much information needed to respond substantively and in good faith. You have a duty to make a reasonable inspection to locate information and responses requested, so just saying “aw that’s too hard” or “gee I don’t know offhand” are not responses that will protect you from the motion to compel which could include the Court or Judge “sanctioning” you (i.e. imposing a monetary penalty against you for your failure to respond to the questions, if such are deemed relevant to the case.
9. If you are not sure of an answer, contact the other party to see if you can work out an agreeable definition that would help you answer the question, or see if there is a better way to go about getting the information. If you work with the other party, you should be able to reach some agreement despite the fact that you are opposing and adversary parties.
10. When you are done, review your answers in detail (if the case goes further, you may be called to give a deposition, or to testify at trial, so you want to make sure your answers are truthful and accurate so that you do not get impeached at trial, or face other issues of credibility. When you are done, and feel ready to “stand by and defend your answers” that is the time to sign and “verify” the pleading by swearing under oath the at the contents are true and correct to the best of your knowledge under the laws of perjury of the state of California.
Attorney Steve Tip: Don’t have a “General Objections” to all the interrogatory questions, because any objections to the rog must be placed in the body of the specific question you are objecting to. For example, if you are claiming a “work product” protection that protects certain material from being disclosed, this must be set forth in the specific question that was being asked. See CCP 2030..240(b).
Once your responses are done, keep a copy for yourself, and serve all other parties and their attorneys who have appeared in the case. The party that issued the form interrogatories has the right to the ORIGINAL VERIFICATIONS, so make sure to send the originals to the requesting party.
What happens if you fail to respond to the form interrogs?
If you are not properly responding to the questions being asked, the requesting party will probably send you a “meet and confer” letter saying “here is the information that you are missing, you better answer these, (citing some case law) and basically giving you a few extra days to either respond in detail as has been requested, or risk the other party filing a motion for sanctions in a “motion to compel” further evidences to discovery requests.
Some of the comments you might get when you are not properly answering form interrogs are the following:
1. Each answer in the response must be as complete and straightforward as the information reasonably available to the responding party. See CCP 2030.220 Failure to respond to interrogatories and evasive responses are “misuses of the discovery process.” See CCP 2023.010.
2. Failure to provide a full and complete response or responding in a manner that seems “evasive” is improper and is deemed a discovery abuse. In Deyo v. Kilbourne, 84 Cal. App. 3d 771, 149 Cal. Rptr. 499 (Ct. App. 1978) the court noted:
“Parties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth in answering written interrogatories. Where the question is specific and explicit, an answer that supplies only a portion of the information sought is wholly insufficient. Likewise, a party may not provide deftly worded conclusionary answers designed to evade a series of explicit questions. Also, a party may not deliberately misconstrue a question for the purpose of supplying an evasive answer, and may not state “not applicable” when the interrogatory is clearly applicable to him. Answers must be complete and responsive.”
That is a pretty good summary of how you should respond to each interrogatory presented.
What is the “meet and confer” obligation before filing a motion to compel further discovery responses?
If a party fails to properly respond to the form interrogatories presented, including providing complete, and non-evasive answers, this may prompt the opposing party (if in pro se) or their attorney, to send you a “meet and confer” letter. This is the letter that is required to FIRST be sent to give the answering party one more chance to fix the problems and to provide their full and complete answers to the rogs. If they do not properly respond to this letter, then they can file a “motion to compel” further responses to interrogatories. This is when you might see the judge ordering SANCTIONS be paid to the moving party and imposed against the party that failed to respond and/or their attorney. This is not something that usually helps your case out.
Attorney Steve Tip: If there were NO answers at all to the form interrogatories within the time required to respond (usually 30 days from the date they were served) NOO MEET AND CONFER LETTER IS REQUIRED, and the party entitled to the answers can simply move into the motion to compel stage.
Motion to Compel explained
A motion to compel ask the judge to force the non-answering party to provide the answers that were not responded to. This motion will attach the communications sent between the parties, and must show the judge that the moving party tried its best to obtain the answers from the other party, but that they would not provide them, or were evasive as to a question or its subpart. The motion gets set like any other “law and motion” matter and the parties will brief their positions using memorandum of points and authorities, and the judge will hear oral arguments. If there was no bona fide dispute, the judge ordering sanctions would be very likely, to hopefully deter the parties from going through this again. A typical response from an opposing counsel is to try to do everything possible to remedy the problem before filing the motion. For example, grating extensions, or closely reviewing the caselaw being cited by the opposing counsel (e.x. reasons for non-disclosure or non-answering of a question or subpart).
When extensions are granted, the time to file a motion to compel is also something that should be extended and you will want to get this in writing if you are the party requesting responses to the form rogs. For example, you might email the other party saying:
“Dear opposing party, please confirm by email that you agree to extend our time to file the motion to compel further responses. When we receive your supplemental responses, there will be a new deadline to make any motion to compel 45 days after service of your supplemental responses, pursuant to the provisions of CCP section 2030.300.
Delaying the filing of a motion to compel beyond the 45 day rule, waives the right to object and bring the motion.
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