Form interrogatories can be a cost-effective and simple discovery tool in many types of litigation. However, like any tool, they must be utilized correctly to obtain their fullest potential, and improper use can result in frustration, delay, and harm. While the Judicial Council of California has tailored form interrogatories to family law, unlawful detainer, employment law, and construction litigation, there currently exists no custom series specifically for trusts and estates matters. This leaves the “Form Interrogatories—General” (hereafter “Form Interrogatories” or “Form Interrogatory”), with its various sections related to personal injury and breach of contract, as a barebones discovery instrument for disputes involving estates. Nonetheless, it is a bad workman who blames his tools, so this article presents how attorneys can better utilize and respond to Form Interrogatories in trusts and estates litigation.
II. FORM INTERROGATORIES ARE NOT OBJECTION-PROOF
Whether an attorney is propounding or responding to Form Interrogatories, it is important to understand that Form Interrogatories are not objection-proof. The instructions contained within Form Interrogatories even state that the questions do not affect an answering party’s right to assert any privilege or make any objection. Accordingly, an attorney may be justified in objecting to a Form Interrogatory.
As an example, both the California Supreme Court and the California Third District Court of Appeals have recognized valid work product objections within the Form Interrogatories’ 12.0 series. Interrogatory 12.2 seeks the contact information and interview date for any person “YOU OR ANYONE ACTING ON YOUR BEHALF” (defined to include the responding party’s attorney) interviewed concerning the incident. The Third District Court of Appeals held that compelled production of a list of witnesses interviewed by the opposing counsel invades the work product protections because requiring disclosure of such information would necessarily reflect the counsel’s evaluation of the case by revealing which persons with knowledge of the incident counsel deemed important enough to interview. Thus, interrogatory 12.2 is improper as it relates to anyone the responding party’s attorney interviewed.
Likewise, Form Interrogatory 12.3 may also be subject to work product protections. Form Interrogatory 12.3 asks if “YOU OR ANYONE ACTING ON YOUR BEHALF” (defined to include the responding party’s attorney) has obtained a recorded statement concerning the incident.
1.) Judicial Council of Cal., Form Interrogatories-General, section 1, subd. (c).
2.) Coito v. Superior Court (2012) 54 Cal.4th 480, 499; Nacht & Lewis Architects, Inc., v. Superior Court (1996) 47 Cal.App.4th 214.
3.) Nacht & Lewis Architects, Inc., v. Superior Court, supra, 47 Cal.App.4th at p. 217.
If so, the responding party is directed to provide the contact information of the person interviewed and the date of the statement. The California Supreme Court held that a witness statement obtained through an attorney-directed interview is entitled to at least qualified work product protection.  As such, if the responding party has a statement from an attorney-directed interview, he or she should so indicate, but is not required to initially disclose the details of the statement. The party seeking disclosure has the burden of establishing that denial of the disclosure will unfairly prejudice his or her case.  If a motion to compel is filed, the trial court is to do an in camera inspection to determine if the statement constitutes work product as a reflection of the attorney’s impressions, conclusions, opinions, or legal theories. 
To better avoid these objections, a party could propound a special interrogatory that defines “YOU OR ANYONE ACTING ON YOUR BEHALF” to exclude legal representatives. Alternatively, the propounding party could limit the application of Form Interrogatories 12.2 and 12.3 to exclude the responding party’s attorney either within the definition of “YOU OR ANYONE ON YOUR BEHALF,” or through meet and confer efforts. Notably, Form Interrogatory 12.1 already requires disclosure of the contact information of persons who witnessed the incident or have knowledge of the incident. As such, an attorney can conduct his or her own interviews without having to gather information through Form Interrogatories 12.2 and 12.3.
Another potentially objectionable Form Interrogatory is number 2.6, which seeks the responding party’s current and past employment details. The California Constitution establishes a resident’s right to informational privacy, and employment details have been found to be protected privacy interests.  In determining whether a privacy objection is warranted, a trial court is to first consider whether the privacy claimant has a legally protected privacy interest, a reasonable expectation of privacy under the specific circumstances, and if the invasion of the privacy interest is serious.  If those three criteria are met, the court is to balance the privacy interest against other competing or countervailing interests like whether the information is essential to the fair resolution of the lawsuit.  In trusts and estates matters, employment details may have little relevance, especially current details when the dispute surrounds events that happened to other people years ago (e.g., a trust contest). An attorney advising a responding party who wishes to keep employment details private may be justified in asserting a privacy objection, but could still provide generic details about the client’s employment if doing so removes the client’s concern and pacifies the propounding party’s need to explore whether the information is relevant. While the need for such employment details is highly case specific, a suitable alternative to a discovery dispute over a Form Interrogatory is asking employment-related questions during a deposition. At a deposition, the asking party is more likely to receive a direct response, even if an objection is asserted for the record.
4.) Coito v. Superior Court, supra, 54 Cal.4th at p. 499.
7.) Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1423-1427.
8.) Id. at p. 1423.
9.) Id. at p. 1424.
While Form Interrogatories are not infallible, an attorney should still be cautious about asserting objections. For example, it would be improper to state that a Form Interrogatory is objectionable on grounds that it contains subparts because that objection only applies to specially prepared interrogatories.  Also, an attorney should be thoughtful about objecting to Form Interrogatory 15.1 on the basis that it seeks protected work product. A common argument is that since Form Interrogatory 15.1 seeks information about a respondent’s denials of material allegations in the complaint, the attorney for the responding party has to divulge his or her impressions and legal opinions as to which denied allegations are material in order to assist the client in answering the interrogatory. Notably, there is no reported case law that recognizes this argument or its merit. On the other hand, there are cases that do recognize the legitimacy, in general, of Form Interrogatory 15.1.  As such, an attorney should be cautious about making a work product objection to Form Interrogatory 15.1 since the attorney has the burden of justifying his or her objection, and the trial court has the ability to sanction the attorney should the objection be overruled in a motion to compel.  If a responding party asserts such an objection, a practical solution is to remove the need for the opposing counsel to identify which denied allegations are material. To do this, the attorney for the propounding party can supply the responding party an exact list of each denied allegation during the meet and confer process that should be included in the response.
III. CUSTOM DEFINE “INCIDENT” TO UTILIZE MORE FORM INTERROGATORIES AND TAILOR THE RESPONSE TO THE DISPUTED ISSUE
Rather than adopting the generic definition of “INCIDENT,” create a custom definition to better avoid objections, garner more specific responses, and utilize more of the Form Interrogatories. In the Form Interrogatories’ preface, the propounding party may check a box that defines “INCIDENT” to mean “the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” Alternatively, the propounding party may insert a custom definition. Because probate related litigation rarely concerns an accident, injury, or breach of contract, adopting the generic definition effectively defines “INCIDENT” as, “the circumstances and events surrounding the alleged occurrence giving rise to this action or proceeding.” Such a non-specific definition could incite an objection based on vagueness, ambiguity, or uncertainty. For example, Form Interrogatory 12.1, subsection (a) seeks contact information for each individual who witnessed the “INCIDENT.” If the petition contains many causes of action or details events that span a period of years, the responding party may be justified in objecting if the generic definition of “INCIDENT” is selected. Since 57 of the Form Interrogatories incorporate “INCIDENT” as a defined term, an objectionable definition may affect many of the interrogatories propounded.
10.) Code Civ. Proc., section 2030.060, subd. (f).
11.) See, e.g., Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1096; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 331.
12.) Code Civ. Proc., section 2030.300, subd. (d); Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220.
The best approach is to mold the definition of “INCIDENT” to the issues in dispute. For example, if the dispute concerns objections to an accounting, the proponent of the account could define “INCIDENT” to mean the transactions listed in the account, and propound Form Interrogatories 9.1 and 9.2. This would require the objector to identify the specific account transactions in dispute, the damages claimed as a result of the disputed transactions, and any documents that support the existence or amount of the claimed damages. Similarly, if the lawsuit concerns the contest of a trust amendment, a propounding party could define “INCIDENT” as the actual signing of the disputed document. With such a custom definition, the responding party will have to identify any medication taken by the settlor within 24 hours of the document’s execution (Form Interrogatory 2.13); the date, time, and place of the document’s execution (Form Interrogatory 20.1); the route taken on the trip to sign the amendment (Form Interrogatory 20.4); and the contact information of each person who witnessed the signing or the events immediately before or after the document’s execution (Form Interrogatory 12.1). These facts are often highly relevant to a trust contest, especially when the basis is undue influence or lack of capacity. Obtaining this information through a custom definition of the term “INCIDENT” also allows a party to gather this information without utilizing any of the available 35 special interrogatories.
IV. PROPOUND FORM INTERROGATORIES EARLY AND OFTEN
One of the best advantages of Form Interrogatories is that a set can be drafted quickly and served early in the litigation. In proceedings under Probate Code section 17200 (e.g., trust contest, removal petition, petition for instruction), a petitioner may serve Form Interrogatories upon the trustee just 10 days after the notice of hearing is mail served.  Similarly, a respondent in such an action may begin discovery immediately.  Given that in many counties the initial hearing on a petition occurs sometimes two to three months after the petition is filed, proactive litigants can attend the hearing with the benefit of already completing some discovery. This could be highly advantageous in certain disputes. For example, one of the factors for removal of a trustee or personal representative, or determining whether a person is competent to serve as a personal representative, is whether the person is insolvent or similarly not qualified.  The propounding party could define “INCIDENT” as the date the person began acting in the fiduciary capacity, and by checking Form Interrogatories 2.5, 2.6, and 2.8, obtain the responding party’s residential address for the last five years (useful if the person is transient or has a criminal history), employment details for the last five years (a factor related to insolvency), and information about felony convictions. That information (or lack thereof if no response is received) could persuade the court at the initial hearing to exercise its discretion under Probate Code section 17206 and immediately suspend or remove the fiduciary. Similarly, a trust contest often contains a preliminary request to prohibit or curtail a trustee’s powers to sell property, pay certain expenses like legal fees, or make distributions. Utilizing Form Interrogatory 17.1 and a set of requests for admissions, the trustee could essentially obtain the petitioner’s current evidentiary basis for invalidating the document. If the petitioner lacks an initial offer of proof, the court may be inclined to deny preliminary orders that limit a trustee’s powers.
13.) Prob. Code, section 17201.1.
14.) Ibid.; Code Civ. Proc., section 2030.020.
15.) Prob. Code, section 15642, subd. (b)(2); Probate Code, section 8402 subd. (a)(3).
Conversely, a petitioner can obtain a lot of information early from the respondent by propounding Form Interrogatory 15.1. For each material allegation a respondent denies in the petition, Form Interrogatory 15.1 requires the responding party to provide all of the facts upon which the denial is made, the contact information for each person who has knowledge of those facts, and the identity of all documents and tangible things that support the denial. Thus, in a trust contest, the respondent would have to provide all known evidence for why he or she claims the trust is valid. Similarly, in a Heggstad or Probate Code section 850 petition, the respondent would have to provide this information to support why he or she is the rightful owner of the disputed property. Form Interrogatory 15.1 also requires the same information (facts, witnesses, documents) for each affirmative defense asserted by a respondent. Therefore, a full and complete response to Form Interrogatory 15.1 gives the petitioner a general framework of the opposition’s evidence. Consequently, the attorney will have a list of potential adverse witnesses, and through a simple production request can obtain all of the documents relied on by the respondent.
It is also helpful to propound interrogatories often. In trusts and estates litigation, it may take a party several months to gather facts not initially known at the beginning of a lawsuit. This is because parties often lack personal knowledge of the events, or are unable to obtain a decedent’s bank statements or medical records without a subpoena. Rather than sending a new set of Form Interrogatories, a party may propound supplemental interrogatories to elicit later acquired information bearing on all answers previously made by a party in a response to Form Interrogatories.  A supplemental request may be propounded twice before the initial setting of a trial date, and once after the initial setting of trial.  Therefore, a simple supplemental request asking for any later acquired information pertaining to previously answered Form Interrogatories may be obtained several times before trial.
While Form Interrogatories in their current state do leave much to be desired for trusts and estates litigators, like any tool, proper use will lead to better results. Hopefully, the Judicial Council will either develop a custom set of form interrogatories for estate related litigation or include a supplemental section within the Form Interrogatories. In the meantime, an attorney would be wise to remember that Form Interrogatories are not objection-proof, that it is best to create a custom definition of the term “INCIDENT” to garner more specific responses, and to proactively propound Form Interrogatories early and often to better prepare for trial.
16.) Code Civ. Proc., section 2030.070.
17.) Code Civ. Proc., section 2030.070, subd. (b).