Written discovery – some litigators enjoy it as an intellectual challenge, others despise it as grueling drudgery. Drafting the questions and the responses must be done carefully because both are strategically important. Expertly crafted questions are designed to be well-hidden minefields and responding to them requires extraordinary care to anticipate, diffuse, and clear them. Many litigators have declared victory when a cleverly drafted question achieves its goal of boxing in the opponent and obtaining an admission on a critical element of the case. But the more common denial camouflaged in lawyerly objections presents a trickier problem. The big question, then, is what to do next with those denials – or, rather, what not to do.

Last month, in Victaulic Company v. American Home Assurance Company (2018) 20 Cal. App. 5th 948, the First District Court of Appeal told litigators exactly what NOT to do: Do not try to beat up an unsuspecting witness with those brilliant denials or well-versed objections. In Victaulic Company, the Court of Appeal confirmed that the prohibition on using Request For Admission denials or responses to contention interrogatories at trial cannot be circumvented by laying an impeachment trap for the witness. Though the Court’s ruling includes entertaining language, the result was not amusing – the Court threw out a $55 million verdict in favor of plaintiff Victaulic Company.