Judicial Council Creates Discovery Mechanism to Assist in Small-Scale Construction Defect Litigation

If you practice in civil litigation, you are intimately familiar with the discovery process and the commonly used Judicial Council Form Interrogatories.  In essence, the Judicial Council of California - Administrative Office of the Courts promulgates forms to assist in litigation and discovery. 

The Legislature is authorized under Code of Civil Procedure section 2033.710 to develop form interrogatories.  In the past, the Council has approved sets of interrogatories for general use in civil cases, unlimited civil cases, and specialized sets for various types of law that are commonly practiced.  For example, in 2002, the council approved a specialized set of form interrogatories for employment law cases.  The most recent addition was a specialized set for family law cases in 2006.  However, as of January 1, 2013, the Judicial Council approved a NEW set of form interrogatories specifically designed for use in litigating construction and construction defect cases.

Form Interrogatories—Construction Litigation (form DISC-005) includes standardized interrogatories on topics unique to construction litigation as well as broader topics carried over from the general form interrogatories for civil cases.

 

Concerns in Drafting the Interrogatories

These interrogatories were drafted by the Civil and Small Claims Advisory Committee.  The committee–composed of several attorneys representing plaintiffs, subcontractors, developers, architects, as well as insurance coverage attorneys—spent several years developing the interrogatories.  In the spring of 2012, the proposed forms were circulated for public comment. Although most of the comments were positive, the following concerns were raised:

 

- Undue Burden on Plaintiffs/Homeowners: The principle objections included an undue burden on the plaintiff.  The Consumers Attorneys of California (CAOC), for example, objected to the proposed form, raising concerns that it would overly burden plaintiffs in the construction industry.  Others stated that the requests would impose more work and expense on plaintiffs that is otherwise provided during the later expert witness phase.  In addressing this concern, the committee believes that the form interrogatories merely refine the standard set of interrogatories and do not add anything new. 

- Work Product Privilege: Others objections included complaints that the interrogatories might require responding party to rely on expert opinion, which would require disclosure of information otherwise protected under the work product privilege.  In addressing this concern, the interrogatories, however, ask specific questions based on the personal knowledge of the parties only.

- Managing Complex Cases: Many commentators objected to these interrogatories because they are unnecessary in light of the extensive use of Case Management Orders (CMO) in construction defect litigation.  Discovery pursuant to a CMO is court-ordered and serves to limit discovery through the supervision of a discovery referee, or the likes.  However, the Committee noted that the current use of CMO discovery process should not prevent the approval of construction form interrogatories in smaller cases.  Furthermore, these specifically tailored form interrogatories may be utilized when crafting the CMO discovery requests.

 

Limitations on the Interrogatories

The Committee did note, that there is a potential for overly burdensome and duplicative discovery if the new form interrogatories are used in large cases with dozens of parties.  In light of these objections, these interrogatories are an alternative to the standard form interrogatories—not in addition to. More significantly, however, the new interrogatories may only be used in cases involving five or fewer residential units.  If the case involves more than 5 units or the case is deemed complex under 3.400 et seq. (regardless of the number of units), then the forms may only be used with permission of the court. 

Notably, the burden is on the party seeking discovery to show good cause before form interrogatories may be propounded. Attorney John L. Boze pointed out that “the requirement of showing good cause before propounding interrogatories is a departure from the general principle under California law that discovery is self-executing.”  Boze and other commentators argued that the burden should be the other way around.  However, the committee considered the interests of plaintiffs in preventing potential discovery abuses through use of the forms in large or complex construction defect cases.

 

Understanding the New DISC-005 Construction Defect Form Interrogatories  

In general, a party may utilize form interrogatories specifically approved by the Judicial Council pursuant to Code of Civil Procedure section 2033.740(a).  In drafting interrogatories, the Judicial Council utilizes nontechnical language as enumerated in section 2033.730.  A party may not deliberately misconstrue interrogatories and should utilize reasonable and straightforward interpretations of Judicial Council approved forms.  In light of the expansive scope of discovery set forth the Civil Discovery Act, a party should be reticent to object to form interrogatories as they are a routine and essential part of pretrial discovery.  See, e.g. Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249-50.

Requests are frequently met with objections when propounding discovery in a construction defect dispute while using the standard form interrogatories.  One common objection to the standardized form interrogatories is to the term “incident” which the new interrogatories replace with “construction claim” and “construction defect claim.”  Particularly, in the new Construction Defect Form Interrogatories, the construction defect claim can be clearly defined in Section 4 (e) alongside approximately twenty other construction terms and definitions (Section 4(a)-(v)). The new interrogatories also eliminate the reference to personal injury interrogatories which are usually inapplicable to construction.

The new forms contain many of the standard questions about the business, individuals, contracts, statutory violations and litigation investigation.  However, the interrogatories also provide additional information narrowly tailored to the construction defect world:

- The insurance portion (304.1(a)-(l)) inquires about whether the policy is a burning-limits policy, whether the policy contains certain exclusions, and other details about the policy;

- The section on property damages (305.0) asks about details on whether owners have made improvements, performed maintenance, and/or sold the property.  These interrogatories also ask about whether plaintiffs have made any written evaluations of the property and/or appraisals including the individuals who performed the appraisal and the appraised value given.

- There is also a specific portion dedicated to claims involving HOAs (320.0) which is particularly important given that Common Interest Developments make up one quarter of the state’s housing stock (approximately 4.9 million housing units).

- The interrogatories have a specific section for scope of work for various types of parties including general/subcontractor (321.0), design professions (322.0), and manufacturers (323.0).  

- The new form interrogatories allow parties to reference documents in a depository which are commonly used in construction cases (Section 3(3)).

With the added specificity as it relates to the construction industry, these new form interrogatories will better serve the purpose of California’s Civil Discovery Act. Perhaps even more importantly, these forms will help defendants better understand Plaintiff’s claims.  With this clarity, parties will better be able to evaluate their claims and ideally reach an early settlement either through informal negotiations or through mediation. 

by Mikita Weaver

Mikita is the Editor-in-Chief of ADR Times. As an associate at Northrup Schlueter LLC, she focuses predominantly on litigation and arbitration in the field of construction insurance defense. She received her Juris Doctorate at Pepperdine and a Masters in Dispute Resolution from the Straus Institute. Mikita has been published in the Pepperdine Dispute Resolution Law Journal and worked at the Centre for Effective Dispute Resolution in London. As an avid traveler, she continues to explore various dispute resolution issues and how they vary from region to region.