A Clear Message About the "Vague and Ambiguous" Objection.
Last week the California Court of Appeal (First Appellate District) issued a warning to attorneys who abuse the discovery process by asserting frivolous objections requiring unnecessary motions to compel. See Clement v. Alegre, 2009 Cal. App., September 23, 2009. In upholding a sanctions award on the offending attorney, the Court of Appeal expressed frustration with “scorched earth” techniques used by some practitioners and reminded attorneys that the central precept of civil discovery is that is to be self-executing, without the need for judicial intervention and that monetary sanctions may be awarded even if the abuse was not willful.
In Clement, Defendant’s interrogatory number 1 asked the Plaintiffs to describe “all economic damages you claim to have sustained” and in a second interrogatory asked Plaintiffs to “state the amount of damages identified in interrogatory number 1” Plaintiffs asserted that interrogatory number 1 was “vague and ambiguous” as to the term “economic damages” yet Plaintiffs cited the Civil Code section that defines “economic damages” in their objections. Plaintiff objected to interrogatory number 2 because it was not full and complete in itself because it required reference to interrogatory number 1. In the meet and confer process, Plaintiffs counsel offered to allow defendant to supply a written definition of economic damages but only on the condition that Plaintiffs be given 30 additional days to respond and then argued that defense counsel failed to meet and confer by not accepting the offer. The trial court granted Defendant’s motion to compel and imposed $6632.50 is discovery sanctions.
The Court of Appeal affirmed finding that, given the circumstances as a whole, Plaintiffs’ counsel clearly was engaged in gamesmanship designed to delay discovery. The Court of Appeal found the “vague and ambiguous” objection “preposterous” considering that Plaintiffs themselves quoted the defining statue in their response. With respect to the argument that the question was not full and complete in itself, the Court of Appeal cited legislative history noting its primary concern of this statue was to prevent wrangling about whether a party evaded the 35 question limit by using prefaces, instructions, definition and subparts. Here, defendant only propounded 23 interrogatories.
The Court of Appeal also noted that defense counsel’s refusal to be bullied into re-writing adequate discovery and extending more time for responses does not constitute a failure to meet and confer. Finally, the Court of Appeal concluded its opinion by reminding attorneys that the meet and confer statute requires a serious efforts at negotiation and informal resolution and that informal resolution means more than “attempting to persuade your discovery opponent of the error of his ways” and that informal resolution entails something more that bickering of opposing counsel.
The teachings of the Court of Appeal in Clement are a stern reminder to trial counsel to remove ego and emotions from discovery disputes and to maintain professionalism and civility at all times.
