Across the country, construction defect lawyers have had to work out how to approach written discovery so that multiple parties were not serving similar requests to other parties for the same type of key information.
When construction defect lawsuits first became prevalent in California, parties would each send out the standardized judicial council form interrogatories that were primarily designed for personal injury/simple contract actions, voluminous contention interrogatories, and voluminous requests for production, all of which drove attorneys to distraction as they attempted to respond to similar but somewhat different requests.
Construction defect attorneys then began developing case management orders (or pretrial orders) to address the discovery process. This was great, but there were still many hours spent negotiating the standard case management order (CMO) interrogatories for each particular case. In cases that were not governed by CMOs, countless hours were spent bringing motions to compel answers to form interrogatories, often based on a fight over the defined term “incident” or arguably unmeritorious objections.
Recognizing the need for change, a group of California construction defect lawyers set out to develop interrogatories specifically tailored for use in construction defect cases. The process resulted in the Form Interrogatories for Construction Litigation, enacted on Jan. 1, 2013, and approved by the California Judicial Council for use in construction cases involving six or fewer homes. (Cases involving more than six homes require a court order. This is due to the anticipated presence of a special master and/or case management order in cases designated complex. See www.courts.ca.gov/documents/disc005.pdf.)
The new interrogatories were designed to streamline discovery in construction cases, to eliminate the undue burden often put on plaintiffs and homeowners, and to provide parties with key relevant information for a construction defect lawsuit. The interrogatories accomplished these goals in several ways. While the definitions section in the new interrogatories is similar to the definitions set forth in the general form interrogatories, the term “incident” has been replaced with “construction claim” and “construction defect claim.” Construction litigators will be relieved to not have to deal with objections regarding how the term “incident” does not apply to their particular case.
In fact, there are no longer any questions concerning personal injury cases. Construction attorneys constantly were faced with objections based on the grounds that the general form interrogatories were designed for personal injury cases and, thus, the interrogatory was not applicable to the instant case. Thankfully, those interrogatories should no longer be used, as now there are interrogatories specifically designed for construction defect cases.
To that end, the drafters focused on streamlining the process to obtain the information most commonly sought after in construction defect cases. There are interrogatories regarding contractors’ licenses (303 series), property damage, warranty and repair work (305 series), scopes of work for contractors and subcontractors (321 series), and claims against product manufacturers (323 series).
This information is particularly helpful to an attorney who is trying to evaluate a case in its early stage. Knowing each party’s scope of work and whether any repair or warranty work was performed makes it considerably easier to assess the allegations against a contractor.
The new interrogatories also are designed to obtain the relevant information needed concerning the parties’ potential insurance coverage, both for primary and additional insured coverage. The 304 series contains interrogatories designed to obtain information on any policies in effect through which the party may be entitled to coverage for losses or expenses that may have been or may be incurred, including policy numbers, the types of policies, and other key information regarding available insurance. Parties also are obligated to respond to questions concerning the extent of property damage and whether there is any potential additional insured coverage.
The insurance information is particularly useful for a claims adjuster who is attempting to set aside reserves or evaluating the case from a coverage standpoint. It also is valuable information for plaintiffs’ counsel when evaluating where the money will come from to satisfy a potential judgment or settlement.
While this information should have been easy to obtain prior to the enactment of the new form interrogatories, lawyers have constantly objected or refused to answer altogether. Having judicial council-approved interrogatories will assist in limiting objections and expediting the process for obtaining this type of information. Although designed for cases involving six or fewer homes, these interrogatories easily can be adopted as part of a CMO and/or used as an individual set of interrogatories in a case in any jurisdiction.
The new form interrogatories are especially effective for the defendants in construction-defect cases. Both the general contractors who are sued by the plaintiff homeowners and the subcontractors who are in turn sued by the general contractors benefit from this new discovery tool.
Traditional form interrogatories often become counterproductive and redundant in multiple-home construction-defect cases. Before these new form interrogatories took effect, it was common for the parties to spin a web of form interrogatories. Multiple plaintiffs would propound form interrogatories on a general contractor; the general contractor would propound form interrogatories to each and every subcontractor; the plaintiffs each then would propound form interrogatories to each subcontractor; and, finally, each subcontractor would propound form interrogatories on the general contractor and on each plaintiff.
This web of form interrogatories was an inefficient and ineffective way for the parties to obtain the information needed for their case, especially given that they mostly consisted of requests for information inapplicable to construction disputes.
The new form interrogatories provide an opportunity to clear up the cobwebs. General contractors and subcontractors can avoid a flood of paperwork and, instead, provide pertinent, useful, and available information. In other words, general contractors and subcontractors can utilize the new form interrogatories to offer the information most available to them in the least burdensome way possible.
This is a particularly impressive characteristic of the new form interrogatories, given that the roles of general contractors and subcontractors are significantly different in a construction-defect case. General contractors and subcontractors nevertheless can utilize the new form interrogatories differently to achieve their different litigation goals.
Specifically, these interrogatories allow general contractors to offer a broad but shallow scope of information regarding their subcontractors and the course of construction, while simultaneously offering subcontractors the ability to provide a narrow but deep scope of information regarding their trade-specific participation in the construction of the plaintiffs’ homes.
A general contractor’s ability to respond to the plaintiffs’ form interrogatories is heavily dependent on information provided by his subcontractors. General contractors often are in a supervisory role and do not perform the trade work themselves. The detailed questions of form interrogatories are, therefore, burdensome and generally unanswerable by a general contractor. General contractors would simply have to respond to form interrogatories by the plaintiff by relying on the answers that subcontractors provided in their own form interrogatories.
With these new form interrogatories, a general contractor no longer has to rely on the subcontractors’ information. Instead, he can provide a list of the subcontractors and focus on providing what the subcontractors cannot: a broad range of documentation regarding the construction; the plaintiffs’ properties; and the universe of subcontractors who have performed the construction.
These documents—accounting records, lot files, and subcontracts, among others—are most helpful to the parties of the case and often otherwise unavailable to the plaintiff homeowners and subcontractors. This document-reliant, broad use of the form interrogatories is how the general contractor can best offer his resources to the other parties.
A subcontractor’s use of the form interrogatories is quite the opposite. Subcontractors lack the documents to provide the project-wide information that general contractors can offer. Even if subcontractors had access to these documents, they lack the resources to review and produce the thousands of documents often related to disputed homes.
Instead, subcontractors are most helpful in offering their specialized knowledge of the project. The new form interrogatories allow the subcontractors to provide a narrow but specific scope of information and documentation regarding their contribution to the construction. The subcontractors can dive into detail regarding the work performed and the sub-subcontractors used to construct the plaintiffs’ homes.
It’s clear that these new form interrogatories will continue to establish efficient discovery procedures in construction cases with six or fewer homes. Oftentimes, the high-end, single-family residence case can be quite complex and involve the same number of trades as in a 100-home project. These interrogatories will greatly assist in that type of lawsuit.
However, these form interrogatories also will make a lasting impact in construction cases with more than six homes. Due to the high volume of parties in such cases, even the new form interrogatories do not entirely remove the burdensome and time-consuming procedures of propounding discovery. In these cases, the new form interrogatories are most helpful when coupled with other discovery tools—namely, a CMO/pretrial order and a discovery referee.
The special master can incorporate these new form interrogatories through a CMO or pretrial order. This strategy provides an even more efficient method of discovery than relying on the traditional method of propounding discovery. The parties simply will provide and receive relevant information and documents from the other parties.
Although this has been adopted in California, there is no reason why these interrogatories cannot be utilized in jurisdictions across the country with slight modifications to conform with a state’s particular laws. Significantly, this will eliminate unnecessary attorney time and fees, as well as special master fees, to negotiate a set of CMO interrogatories and, more importantly, will eliminate the meet and confers and possible discovery motions to compel this information.
Of course, we do not mean to infer that, in every case, there may not be valid objections to some of these form interrogatories. Whether an interrogatory question is appropriate or not depends on the party represented and the particular facts and procedure of the case at issue. But one thing is clear: these interrogatories are a useful tool for any construction defect lawyer to obtain the key information needed.
The authors wish to acknowledge Jacob A. Moss of Selman Breitman and Anoush Cyrus of Wood Smith Henning & Berman for their help in writing this article.