More Sport in State Court

Mitchell v. Superior Court, No. B264143 (D2d4 Dec. 22, 2015)

Defendant in a PI case moved in limine to exclude witnesses who were not disclosed in Plaintiff’s interrogatory responses, which the trial court granted. Problem is, the relevant interrogatory (Form Rog. 12.1) calls only for the disclosure of witnesses to the accident and not to witnesses to Plaintiff’s post-accident disabilities, which is what the witnesses here were apparently expected to testify about. So the court of appeal grants a writ. 

It notes, in the alternative, that witness preclusion isn’t an appropriate sanction for failing to disclose witnesses in rog responses, unless the nondisclosure (a) was intentional; or (b) violates a court order. So the order would be reversible on that ground also.

Writ granted.

I get the first point loud and clear—you can’t be faulted for not answering questions that weren’t asked. Given how hard it can be to find citations to support obvious points about California discovery, publishing this case is worthwhile for that point alone.

But the second ground is interesting. No doubt, it’s consistent with the Code and the cited precedent. Code of Civil Procedure § 2030.300 precludes ordering evidentiary preclusion as a discovery sanction unless the responding party “fails to obey an order compelling further response to interrogatories.” While courts have been willing to reach outside that limit in cases where there is egregious misconduct in the absence of an order, it is generally the rule.

But does that make any sense at all? As the California Supreme Court explained half a century ago, “one of the principal purposes of discovery [is] the doing away with the sporting theory of litigation namely, surprise at the trial.” Chronicle Pub. Co. v. Superior Court, 54 Cal. 2d 548, 561 (1960). Indeed, a principal use of interrogatories is to lock one’s opponent into a version of events, evidence, and witnesses.

So—assuming they properly ask for them—is it really a good idea to let litigants get away with failing to identify witnesses in interrogatories? There’s already a good deal of sport left in California discovery. Most notably, there’s no self-executing obligation to supplement responses, which gives rise to the need to serve supplemental requests carefully timed to be due at the very end of the case. But if you check the boxes and do that, does it really make sense to prefer monetary sanctions—sanctions that trial courts hate to levy—in lieu of simply precluding evidence that should obviously have been disclosed?

Notably, the federal practice is different. Under Rule 37(c)(1), evidence that is called for but not produced in discovery is barred from use at trial unless the non-disclosing party comes up with a good reason otherwise. That provides a pretty strong incentive to comply.