There is a new form on the block…
In January 2013, The Judicial Council of California decided to adopt the use of a new form interrogatory which is geared at streamlining discovery issues in construction litigation cases.
The Civil and Small Claims Advisory Committee recommended the use of the form, while the Consumer Attorneys of California opposed its adoption. The Advisory Committee argued that construction litigation practitioners have urged adoption of form interrogatories for several years, with the goals of eliminating the need for parties to craft special interrogatories for the most commonly asked questions, standardizing those questions so that parties will be aware of what information will have to be provided in the action and, as a result, decreasing the number of motions to compel filed in the courts.
In opposition, the CAOC asserted that the interrogatories would change the nature of the litigation in smaller cases and are not needed in larger construction cases, which are frequently handled in mediation, where a more informal approach to the exchange of information occurs, or as complex litigation matters, in which a Case Management Order is used to guide discovery.
The Practitioner’s Scoop…
One of the main changes to the new construction litigation form interrogatory is the term INCIDENT has been replaced by your choice of either CONSTRUCTION CLAIM or CONSTRUCTION DEFECT CLAIM, depending on what type of case is being handled. The definitions of these terms have been crafted to better fit the circumstances of a construction litigation claim, whereas INCIDENT was over broad and vague in relation to construction claims and related more to personal injury cases.
The form removes all personal injury questions and covers many relevant construction issues. For instance, the form requests information about the licensing of design professionals, subcontractors and contractors. Although Interrogatory 303.7 may not completely eliminate the need to request a contractor’s license history from the CSLB, if its box is checked, then the responding party must provide their entire license history.
The interrogatories question the scope of work of contractors and subcontractors, and ask questions regarding change orders, additional work claims and directives. The interrogatories contemplate inadequate plans and specifications claims -including questions regarding their sufficiency and the contractor’s diligence in obtaining more information. Other topics introduced on the new forms are manufacturers and products, insurance policies, damages to the subject property, appraisals of the subject property, improvements made tothe subject property, past claims made for damages to the subject property, and individual homeowner claims.
Also—choose wisely— although more construction oriented, once a litigator chooses to use the construction litigation interrogatories he or she cannot use other form interrogatories (such as General Form Interrogatories) in the same action.
Finally, the interrogatories specifically state that they are not intended for use in residential cases involving six or more single-family homes or housing units. Also, the interrogatories are not to be used without leave of court in cases that have been deemed complex under California Rule of Court 3.400 et seq.
Will these forms change the face of construction litigation? Doubtful. But they are now an available tool in the construction litigator’s toolbox. Have a look at the new construction litigation form interrogatories here: