NEW CALIFORNIA JUDICIAL COUNCIL FORM INTERROGATORIES FOR CONSTRUCTION LITIGATION GO INTO EFFECT IN 2013

Attorneys propounding or responding to written discovery in construction litigation are all too familiar with the difficulties in using standard California Judicial Council form interrogatories for general use in civil cases. These often used and longstanding "general use" form interrogatories are not specifically tailored to address the often unique issues and topics found in construction litigation. After working on various proposals and drafts since 2009, as well as, receiving public comment from numerous attorneys, law firms, attorney organizations, bar associations, state courts, contractors and contractors' trade associations, the Judicial Council of California approved the proposed Form Interrogatories – Construction Litigation (form DISC-005), effective January 1, 2013.

These "construction litigation-tailored" interrogatories were developed over the course of several years by the Civil and Small Claims Advisory Committee after working closely with a small group of attorneys specializing in construction litigation. Early in the development of these construction interrogatories, the Consumer Attorneys of California (CAOC) objected to the committee that the proposed form interrogatories would not be helpful, contending that the format would overly burden plaintiffs in construction defect cases. The committee considered CAOC's objections but disagreed, concluding that form interrogatories would prove useful in construction litigation, particularly in smaller cases. The committee noted that discovery, including interrogatories, is permitted in construction defect cases and concluded that specialized form interrogatories could provide a standard format to help keep discovery questions focused on and applicable to construction-specific issues. Further, the committee concluded that the standardization of discovery requests with form interrogatories is likely to help both plaintiffs and defendants as well as the courts by making discovery more predictable, thus decreasing the number and complexity of any associated motions to compel.

The newly-approved Form Interrogatories – Construction Litigation (form DISC-005) can be found at http://www.courts.ca.gov/documents/disc005.pdf and follow the same format as other Judicial Council form interrogatories. The instructions at the beginning are essentially the same as those in other form interrogatories, with two exceptions:

• The construction litigation form interrogatories are limited to smaller cases and require leave of court before these interrogatories can be propounded in larger and complex cases. Specifically, the construction litigation form interrogatories may not be used unilaterally in actions that involve more than "six or more single-family homes or housing units." In addition, in a case deemed complex under rule 3.400 et seq. of the California Rules of Court, the construction litigation form interrogatories must not be used until the asking party has obtained judicial approval on a showing of good cause.

• The instructions recognize that many construction cases utilize document depositories. As such, responding parties are given latitude to simply point to or identify by Bates stamp number documents that are responsive to an interrogatory, so long as the asking party has access to the depository and the referenced document.

Form Interrogatories – Construction Litigation also contain other notable aspects, including the following:

• As with other civil form interrogatories, additional non-form interrogatories may be attached.

• The definitions section in the instructions of the construction form interrogatories are similar to the list of terms used in general civil form interrogatories, but add or substitute key terms specific to construction litigation. Recognizing that the standard term "incident" is both confusing and inapplicable as a defined term in construction litigation, the construction form interrogatories replace this term with "construction claim" and "construction defect claim" (and the asking party may craft their own definition to these terms in certain actions).

• The construction litigation form interrogatories are intended to encompass and integrate topics and issues addressed, not only in construction disputes, but also in general civil litigation. As such, any asking party who uses the construction litigation form interrogatories may not use other form interrogatories such as Form Interrogatories – General (form DISC-001) or Form Interrogatories – Limited Civil Cases (Economic Litigation) (form DISC-004).

• Importantly, the personal injury questions from the general civil litigation form interrogatories have been removed from the construction litigation form interrogatories after the committee and the Judicial Council acknowledged that such interrogatories are rarely applicable in construction cases and simply create confusion and unnecessarily complicate the form.

While these newly-implemented construction litigation form interrogatories received some criticism; particularly from the plaintiffs' bar who objected that the new form interrogatories were intended to inundate plaintiffs and plaintiffs' attorneys, and in so doing, deter valid claims. Other commentators noted that responding to these interrogatories would impose more work and expense on plaintiff homeowners to provide information in response to interrogatories that is now generally provided in expert witness discovery, rather than discovery directly from the plaintiff.

After considering these objections, the committee and Judicial Council concluded that the construction litigation form interrogatories would not generally be overly burdensome on plaintiffs, especially in smaller cases, and noted that discovery by interrogatory is already permitted by law in civil actions, including construction defect litigation. The Judicial Council also found that the general civil form interrogatories were not "focused on issues found in construction litigation, and can be ambiguous or inapplicable in that context." Ultimately, the new form does not add anything new to the currently authorized means of discovery, "but instead refines what is already allowed by law."