Interrogatories may be the only discovery procedure that can be used to discover a party’s contentions. You can use them to ask an opponent to state whether he or she makes a particular legal contention, to state the factual basis for the contention, and to identify any witnesses or documents supporting the contention. But before you draft your next set of contention interrogatories, review these four tips.
1. Be alert to possible objections while you’re drafting. For example, a request for information about any writing containing any “reference to, or indication of” facts, and about any person “who has or claims to have any knowledge or information” about facts is very broad and, in a complex case involving many people and voluminous documents, might be objectionable on grounds of oppression. You can avoid such an objection by inquiring into contentions and basic facts in an initial set of interrogatories, and then after you’ve received answers to that set, serve interrogatories requesting more specific information about the first answers.
2. Ask about particular contentions. It’s better practice to avoid interrogatories asking for “all contentions” and to request instead only whether a party makes a particular contention, e.g.:
Do you contend that plaintiff’s claim is barred by the provisions of Code of Civil Procedure §339?
Do you contend that plaintiff is the owner of Blackacre?
Do you contend that defendant A is the alter ego of defendant B?
3. Refer to allegations in the pleading. Contention interrogatories are a valuable way to elicit the facts underlying the allegations in a complaint. Referring to a pleading in an interrogatory will invite an objection that the interrogatory isn’t “full and complete” under CCP §2030.060(d). You can avoid this problem: Rather than drafting an interrogatory that reads, “State the facts on which you base your contention that defendant was negligent, as alleged in paragraph 2 of your complaint,” you should draft an interrogatory that directly quotes from the pleading without requiring reference to the pleading, i.e.:
State all facts on which you base your contention that _ _[quote allegation in pleading]_ _.
4. Ask for facts on which the contention is based. Contention interrogatories are frequently combined with interrogatories requesting the factual basis for a contention, e.g. “If you contend that plaintiff’s conduct constitutes contributory negligence regarding the accident of January 12, 2016, state the facts on which you base that contention.”
And, whenever you use contention interrogatories, be prepared to follow up with a request for further information if a response is evasive or nonresponsive. See, e.g., Bell v H.F. Cox, Inc. (2012) 209 CA4th 62, 76.
For everything you need to know about drafting and responding to interrogatories, turn to CEB’s California Civil Discovery Practice, chap 7.
Other CEBblog™ posts on interrogatories:
© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.