What Discovery Should Be Conducted In A Premises Liability Case?
The process of obtaining the facts and evidence to be presented at the time of trial is known as the “discovery” process. Discovery in premises liability cases is critical. The parties exchange information and learn about the strengths and weaknesses of the case. Anything that is relevant to the claims or defenses is discoverable. Even if certain information or documents would not be admissible at trial, it may still be obtained if reasonably calculated to lead to the discovery of admissible evidence. The purpose of discovery is to guarantee a fair trial and to prevent surprises form occurring at trial. The discovery phase can span from months to years, depending on the complexity of the lawsuit. Typically, photographs, accident reports, and design plans and any modifications will be requested in discovery.
Plaintiff’s counsel should refer to the California Civil Jury Instructions CACI Nos. 1000-1012 regarding premises liability cases. These jury instructions lay out the specific law to be read to the jury at the time of trial. The jury instructions are the building blocks for preparing written discovery and in phrasing deposition questions which can later be used at trial.
How To Take The Deposition Of The Person Most Knowledgeable (PMK) Of The Defendant?
In a premises liability case, it is typical to conduct a deposition pursuant to Federal Rules of Civil Procedure (FRCP) 30(b)(6) if the case is in federal court or pursuant to California Rule of Civil Procedure 2025.230 if in state court. These types of depositions are referred to as Person(s) Most Knowledgeable (PMK) or also referred to as the Person(s) Most Qualified (PMQ). The deposition of the PMK is critical discovery in a premises liability case.
California Code of Civil Procedure section 2025.230 provides that upon a notice that “describe[s] with reasonable particularity the matters on which examination is requested … the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”
Federal Rule Civil Procedure 30(b)(6) states as follows: “In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the
matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.”
The PMK deponent binds a corporate entity defendant. The designated deponent speaks for the corporation defendant. It is always good practice to phrase the categories in the deposition notice as broad as possible for which the designated PMK deponent will provide testimony. The PMK has a duty to testify as to any information “reasonably available to the deponent.” This is a powerful requirement because the PMK represents the deponent entity’s best knowledge about a certain topic. Also, when a request for documents is made with the notice, the witness is “expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held.” Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1396.
Most PMQ and PMK depositions will be from the defendant. But it is important to know that the “deponent” does not have to be from the defendant. It can also be from a third party. The PMQ deposition must then be noticed via subpoena. The PMQ deposition of a third party should be taken if the plaintiff’s counsel is considering substituting that party as an additional defendant in the case. The party can be amended into the case as a “Doe defendant”. The PMQ deposition is needed to determine if there is sufficient information to pursue a cause of action.
During the deposition, it is good practice to read the PMQ category into the record and ask the deponent the following:
- When did you become aware you were going to be the PMQ in this category?
- Did you review any documents in preparation for this deposition?
- What were those documents, where were they located, how were they procured (i.e. were the documents provided in their ordinary course of business or through counsel)
- Did you bring the documents to the deposition?
- Can the documents be easily produced if requested?
- Did you talk to anyone other than counsel in preparation?
- What was the content of those conversations?
- What else was done to prepare to be the PMQ?
- Was there any information that you sought in preparation for this deposition that you could not obtain for any reason?
- Do you think there is any other employee or person more knowledgeable than you about this subject?
- Plaintiff’s counsel should then go through the relevant document requests and see what, if anything, the deponent brought that was responsive.
This line of questioning provides foundation for any future motions regarding the adequacy of the preparation or those for preclusion of evidence.
Plaintiff’s counsel should also question the PMK deponent on the importance of safety. It is important to establish that safety is a primary concern. Plaintiff’s counsel should inquire into the defendant’s own company safety rules in general, and then ask whether or not the facts of the case show a failure to follow those same rules. Admissions during videotaped depositions are powerful evidence at trial. Plaintiff must establish specific safety rules which a reasonable person should have followed, and which this defendant failed to. Plaintiff’s counsel should work with a liability expert early in order to get opinions on which of the defendant’s actions were unreasonable.
Then after obtaining deposition testimony, further written special interrogatories may be served based on the info obtained during deposition. The written discovery responses will be drafted by the defense lawyer, and will not be in the words of the party. In practice, it is often best to get the videotaped live questioning and answers at the deposition first then get the prepared lawyer drafted written responses. The PMK deposition allows the lawyers to avoid written discovery dispute battles. This testimony binds the corporation defendant to the theories and contentions involved in the case.
In a slip and fall case, the plaintiff’s attorney generally will want to depose the store personnel who were witnesses to the fall or personnel who can attest whether particular management policies might have contributed to the occurence. The deposition should notice the person with knowledge of accident history as well as the mechanism for the entity to track accidents in any particular area.
These individuals may be identified by the defendant in response to later written discovery. Plaintiff’s counsel should make every effort to obtain the identification of store-management witnesses through written discovery or noticed PMK depositions. Meet and confer letters between counsel can help clarify, but defense counsel likely will not disclose any information it is not legally obligated. These witnesses should be deposed after obtaining and reviewing the standards and policy documents of the corporation. Typically in these cases the goal of the deposition is to: learn what defenses may be used, uncover new facts, obtain admissions, and make sure witness testimonies are consistent at trial.
Generally, counsel would want to conduct the deposition in chronological order. After standard background questions it would be best to have the witness recount the occurrence step by step. This should be prior to asking about the policies that may have played a role in the occurrence.
Strategically, plaintiff’s counsel is always permitted to re-depose the person produced as a PMQ in that individual’s personal capacity if the plaintiff’s counsel is prevented from delving into areas that lie outside the noticed PMQ categories.
Often defense counsel will claim that no one exists who can satisfy the requested category. Plaintiff’s counsel cannot rely upon opposing counsel’s word. A record must be made. A declaration or testimony by a knowledgeable person designated by the defendant must be obtained. The plaintiff’s counsel should ask about the facts, about what steps were take to undergo a reasonable inquiry and diligent search, and make a record that no one can address the issues in the PMK notice. This evidence can then be used at trial as party testimony to show the jury that the party did not even have a person responsible to fulfill these duties.
The designated PMK may not responsive in its answers during the deposition. The deponent may be indifferent or have a poor attitude. This plays into the case theme that the entity defendant engaged in malfeasance or engaged in “profits over people”. A responsible person should know certain answers and particular facts. A videotaped deposition of these indifferent responses is powerful. Plaintiff’s counsel can play portions of the videotaped deposition of a party or a party-affiliate at any time for any purpose at trial. This is very useful during the opening statement or during inconsistent testimony of other witnesses. When confronted with photographs of the scene or other key evidence, if the deponent testifies that they do not recognize them, then what else could defendant not have recognized?
Motions in limine should be filed to preclude evidence either not provided at the PMK deposition or contrary to their testimony. A Motion in Limine is a request by a party to the court for an order to limit or prevent certain evidence from being presented by the other side at trial.
Plaintiff’s counsel should obtain a court order binding the company to the answers given in deposition because the PMQ is the “voice” of the company. For instance, when the PMQ testifies “I don’t know” in response to key issues. Once the corporate defendant legally states “I don’t know” through its PMQ, the defendant cannot fairly come to trial with a different story.
How To Use Written Discovery In Premises Liability Cases?
Interrogatories, requests for production of documents and things, and requests for admissions are written questions that must be answered under oath. Usually, these questions are designed to learn more about the occurrence and if the property owner had any knowledge of the dangerous condition.
The plaintiff can also expect the defense counsel to propound questions that must be responded to under oath. Questions from defense counsel are usually designed to learn what necessary precautions the injured plaintiff took to be careful, what physical conditions the plaintiff had that may have played a role in the fall, and any knowledge the plaintiff may have had of any dangerous conditions. Also, the defense counsel will serve discovery requests concerning past medical history of the plaintiff as it relates to the current physical complaints.
Moreover, because the credibility of the parties are relevant, discovery will be conducted into past criminal offenses involving moral turpitude or dishonest and past history of bringing frivolous lawsuits. Plaintiff’s counsel should obtain an ISO Claim Search report on the plaintiff. ISO is the property/casualty insurance industry’s comprehensive system for claim processing and identifying those who bring fraudulent insurance claims. Each year, participating insurers and other organizations submit tens of millions of reports on individual insurance claims.
Premises liability cases turn on lay witnesses’ liability testimony, as it concerns the existence of a dangerous condition and the reasonableness of defendant’s actions in keeping the property safe. Unlike other cases where the key evidence is the “battle of experts” testimony regarding medical causation, It is more likely that the plaintiff’s counsel will prove amd win the premises liability case through the testimony of the defendant, defendant’s employees, or defendant’s PMKs.
Plaintiff’s counsel should propound written discovery prior to taking the depositions of lay witnesses. It is important to obtain evidence and testimony as to what type of inspection program the defendant had at the time of the subject incident.
What Should Written Discovery In A Premises Liability Case Seek?
- Any and all safety manuals and records for the defendant entity.
- The identity of any and all lay witnesses, and/or defendant’s employees with knowledge of any facts related to the subject incident.
- The existence of any subsequent repairs and remedial measures. Evidence of subsequent remedial measures is permitted to be obtained through discovery. The rule against subsequent remedial measures (California Evidence Code Section 1151) is one of admissibility, not discoverability. Bank of the Orient v. Superior Court (1977) 67 Cal.App.3d 588, 599.
- Seek the identity of the defense employees who ordered or performed the repairs.
- All evidence related to defendant’s notice of this condition, or one that is substantially similar.
Requests For Production Of Documents Should Be Served On The Defendant In A Premises Liability Case
Requests for Production of Documents (“RFPD”) are written request for documents and things relevant to litigation. Plaintiff’s counsel should request any surveillance of the occurrence, accident reports, upkeep policies of the company, and documents that overview the recent maintenance of the property.
Requests For Admissions In A Premises Liability Case
For party admissions, the goal is to get the defendant to admit to any kind of negligence. For example, “Please admit the defendant had a duty to make regular inspections of the subject property”.
In California, an award of attorney’s fees is typically not available to a prevailing party at trial. Exceptions to this rule are statutes authorizing recovery of attorney’s fees for particular actions and contracts authorizing recovery of attorney’s fees in breach of contract actions. However, in personal injury lawsuits, the loser typically does not pay the winner’s attorney’s fees. However, Request for Admissions on key matters may also provide an exception. California Civil Code section 2033.420 states that if a party fails to admit the truth of a relevant matter, thus forcing the other side to prove the truth of the matter at trial, the party requesting the admission may obtain a court order requiring the non-admitting party to pay the reasonable expenses incurred in making that proof at trial, including reasonable attorney’s fees. The court may award such fees unless it finds that the non-admitting party “had reasonable grounds to believe that party would prevail on the matter.” Defense counsel usually will not admit to liability even when it is apparent.
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