Trial Magazine

Many attorneys view discovery as a fact- and evidence-gathering tool. Although this is a main function of discovery, a far more powerful purpose is learning how to wield it offensively at trial—to establish duties of care, to show the defendant’s failures, and to impeach key witnesses. But the work starts even before discovery by identifying the proper defendants, preserving evidence, and engaging your experts. When representing a client in a restaurant premises liability case involving a slip/trip and fall, here are some ways to use discovery to set up the case for trial.

Initial Steps

Before you can use discovery to support your client’s case at trial, you must lay the fundamental groundwork for your complaint and discovery requests.

Identify the correct defendant. At the outset of the case, establish the actual identities of the defendants. Restaurants often operate under a “d/b/a” (doing business as) and have an entirely different entity name that needs to be included on the complaint. This could require some digging into the restaurant’s website or other corporate information to determine who owns and operates the restaurant.¹

For example, in a recent case, my firm identified the entity operating the restaurant by searching the restaurant’s website. The restaurant’s name was very different from the corporate entity’s name (for example, “Café ABC” versus “XYZ Properties, Inc.”), which we only discovered by researching the website. On the “Careers” webpage, there were questions pertaining to the entity, such as “Have you ever worked for XYZ Properties, Inc. before?” From there, we searched the California Secretary of State website to confirm the entity operated under a different name than the incorporated name.

Preserve evidence immediately. After identifying the proper entities, and before filing the complaint or conducting any discovery, send preservation of evidence letters to the restaurant. Ideally, send these letters within days or weeks of the incident. However, even if time has passed, it is still vital that you send them. Track receipt of the letters via certified mail or other means. In the letters, indicate the date and location of your client’s incident and request that the restaurant preserve the following evidence:

• any and all logs, reports, or records reflecting cleaning and maintenance of the incident location leading up to and including the date of the incident
• any and all data recorded of the incident and incident location leading up to and including the date of the incident, including but not limited to any video or audio recordings
• any and all photographs of the incident
• any and all incident reports from the date of the incident
• any and all witness statements from the date of the incident
• any and all logs, reports, time sheets, sweep sheets, or other employee records for people working on the date of the incident
• any and all documents sent or received relating to the incident.

Preservation of evidence letters are key to ensuring the restaurant does not intentionally or inadvertently destroy any evidence that you are entitled to obtain. They are also just as important to establish that the restaurant was on notice of its duty to preserve evidence as early as possible. That way, if the restaurant destroys evidence or later claims to have nothing in its possession, custody, or control, you may seek a jury instruction on the destruction of evidence or failure to produce evidence at the time of trial. With these instructions come certain inferences that the jurors can make, including that the weaker evidence may be distrusted or that the evidence not produced would have been unfavorable to that party.²

What to Seek in Discovery

Dangerous conditions can appear in many forms in restaurant cases such as slip/trip and falls due to spilled liquids or debris, poor lighting, and more. Just as with other premises liability cases, first use written discovery to determine the “world” of your restaurant case, including the following:

• people who have knowledge of the incident
• people who made statements or reports about the incident
• incident reports
• videos or photos of the incident maintained by the restaurant
• sweep sheets or cleaning logs
• work schedules and time sheets for employees and managers
• policy and procedure manuals or employee handbooks that set standards and duties.

Similarly, take depositions of the following people early to preserve testimony on the dangerous condition and incident before memories fade:

• any employees or managers working at the time of the incident
• any employees or managers who have control over the video surveillance system
• any employees or managers who were involved in the creation of the dangerous condition
• any witnesses to the incident
• the person most qualified for the restaurant to discuss policies and procedures relevant to your client’s case.

One of the biggest considerations in any restaurant slip/trip-and-fall case is establishing notice. The best-case scenarios would be that the restaurant either acknowledges that it knew about the dangerous condition but failed to fix it (actual notice), should have known about the dangerous condition and failed to fix it (constructive notice), or admits that it created the dangerous condition itself.³ Often, however, the restaurant will not admit liability outright, so you will have to do more digging.

Obtaining video footage, sweep sheets, and policies and procedures—along with the depositions listed earlier—can be crucial. Video footage can show who was in the area before the incident to establish which employees knew about the condition, should have known about the condition, or perhaps created it. In addition, sweep sheets and policies and procedures establish the duties the restaurant had to respond to dangerous conditions and perhaps failed to follow. Depositions can identify who had actual or constructive knowledge of the condition or who created the condition.

Sometimes, the restaurant’s responses may be lacking. Smaller mom-and-pop-type places might not have the infrastructure in place to maintain adequate records. Larger chain restaurants may claim to not have documents. Corporate headquarters may not check in with their local branches to ensure that they are following policies and procedures. If that is the case, there are two ways to look at this situation: On the one hand, the defendant stating that the restaurant has no documents or witnesses means there’s less evidence on the table; on the other hand, you can demonstrate that the restaurant was irresponsible and sloppy.

This is exactly the situation my firm faced in a slip-and-fall case that went to trial. The restaurant had no video footage or time sheets, could not identify employees working on the date of the incident, would not produce the restaurant owner for deposition, and produced a “person most qualified” whose favorite line was “ask the owner.”

While my firm could not obtain direct evidence as to how the dangerous condition was created (spilled liquid down a hallway), or even which employees were at the restaurant at the time of the incident, we were able to lock in the defense to answers through written discovery that indicated the restaurant had absolutely no documents or other evidence.

The initial response was insufficient because it gave the defendant wiggle room to find documents later on and then provide them, which does not comply with California’s Code of Civil Procedure (the date of responding is the date of production).⁴ For example, the request and initial response looked like this:

Request for Production No. 35:
Any and all DOCUMENTS which list YOUR employees working at the SUBJECT PREMISE in 2017.
Response to Request for Production No. 35:
Responding party has conducted a diligent search and reasonable inquiry and is currently unable to comply with this demand because responding party has been unable to locate the documents which list all employees working at the subject premise in 2017. Responding party will continue to search for responsive documents to this request, to the extent they exist.

After meeting and conferring, and filing motions to compel, the defendant had to acknowledge that it had no documents:

Supplemental Response to Request for Production No. 35:
Responding party has conducted a diligent search and reasonable inquiry and is currently unable to comply with this demand because responding party has been unable to locate the documents which list all employees working at the subject premise in 2017.

In the same case, after my firm obtained the restaurant’s written discovery responses, we then noticed depositions and obtained certificates of non-appearance when the employees and o compel and obtained court orders that the defense was to produce the requested information. When the defense could not comply, we filed a motion for evidentiary and issue sanctions.⁵ To ensure that the defense would not use the lack of evidence to their advantage, we asked the court to rule that the defense could not later produce employees, the owner, or other evidence at the time of trial. When this motion was granted, we filed a motion in limine at trial to ensure the trial judge upheld this earlier order.⁶

The reasoning behind this approach is simple: The restaurant should not be able to use a lack of evidence as both a shield and a sword. By claiming a lack of evidence, the restaurant should not be able to simultaneously argue that no evidence exists to establish its liability and that the lack of evidence means someone else is at fault. The defense also should not be able to later produce items at trial that it did not timely provide during discovery.

Follow the civil procedure code in your jurisdiction: Get responses that comply with the code, and use those responses to obtain additional discovery or set depositions. When the restaurant cannot comply, file additional motions as permitted in your jurisdiction to lock in your evidence.

Engage Experts Early

In restaurant cases, retain experts early on who can help you formulate your discovery plan and determine the best avenue for establishing liability. Have your experts conduct site inspections and provide you with the applicable code sections and other rules governing your restaurant case. Also have them review information obtained from the defense during discovery.

For example, in the previously discussed case, our civil engineering expert conducted an official site inspection that revealed the coefficient of friction of the hallway tile was at the appropriate standard and would not be considered “unsafe.” We could not rely on extra slippery tile as a potential argument for liability.

The expert also conducted an “incognito” inspection before litigation to review how staff bussed the tables and how the employees used the hallway where our client fell. This inspection revealed that bussers would take carts full of dirty dishware down the hallway and into the kitchen, which ended up being a key fact to establishing constructive notice (in other words, that the spill was more likely than not created by an employee pushing a cart down the hallway). And we used a handwriting expert to review sweep sheets that were produced during discovery to argue that the sweep sheets were created after the fact by a single person, instead of being filled out properly every hour. This contradicted the deposition testimony of the person most qualified.

Experts can support your client’s case in other ways too. Retain video experts to review surveillance footage software to confirm a defendant’s claim that the system overrode any footage or that the footage no longer exists. Civil engineering experts can review applicable building code sections to provide a list of potential building code violations, if relevant to your case facts.

Your list of experts may evolve as litigation progresses and more facts are discovered. You may not end up calling all the experts at trial; however, keep them in your back pocket as your trial plan unfolds so you can use them if necessary.

Using Written Discovery at Trial

After discovery is closed and trial is drawing near, review the discovery responses and assess how you want to fit them into the trial. In some jurisdictions, discovery responses are admissible.⁷ And in California, for example, there are jury instructions for how to treat these responses—for instance, they are to be considered the same as testimony provided under oath at the time of trial.⁸

To ensure that you can properly display discovery responses to the jury, provide advance notice to the defense and the judge. Try creating “Discovery to Display” binders and then organize them as follows:

• typed question and response on a plain page
• cover page of the actual responses to discovery
• pages of the actual discovery responses with the question and response highlighted
• verification page.

Omit objections from the typed page so that it is clean when it is shown to the jury. Here is an example of what to display:

Defendant’s Response to Form Interrogatory No. 17.1—Response on September 28, 2017 (Response to Plaintiff’s Form Interrogatories, Set One)

Form Interrogatory No. 17.1
Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission:

(a) State the number of the request;

(b) State all the facts upon which you base your response;

(c) State the names, addresses, and telephone numbers of all persons who have knowledge of those facts; and

(d) Identify all documents and other tangible things that support your response and state the name, address, and telephone number of the person who has each document or thing.

Response to Form Interrogatory No. 17.1
Defendant had no notice that anyone fell or was injured on the day alleged. There was no claim made and no fall was brought to Defendant’s attention.

Then at trial, we displayed and read this discovery response (and others) claiming the restaurant had no notice of the incident on the date it happened. We contrasted that with deposition testimony from the person most qualified, who said that he learned about the incident on that date. But at trial, he stated again that he “forgot” if he was working on the day of the incident.

When making these binders, create a table of contents that briefly lists the contents of each discovery request and response so you can quickly refer to the exact discovery response you want to display at trial. (See below an excerpt from the table of contents we used in this case.)

It is always better to be overinclusive rather than underinclusive, so you are prepared for every possibility. Create at least three sets of binders: one for you, one for opposing counsel, and one for the judge. That way, when you want to show discovery to the jury, you can refer counsel and the judge to the appropriate tab for any objections. Keeping your discovery highly organized also shows the judge how prepared you are for trial.

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Discovery responses can demonstrate what the restaurant should have done juxtaposed against what it did. Consider showing and reading the question and answer into the record at trial.

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Discovery responses can demonstrate what the restaurant should have done juxtaposed against what it did. Consider showing and reading the question and answer into the record just before you call the person most qualified to the stand or play video testimony.⁹ You can use the discovery to impeach several witnesses.¹⁰

In addition to the example discussed earlier, we used written discovery responses to show other contradictions in witnesses’ deposition or trial testimony. For example:

• We displayed and read discovery responses claiming a customer spilled liquid down the hallway and created the dangerous condition. Then we contrasted that with trial testimony that neither manager of the restaurant saw a customer spill liquid down the hallway.
• We displayed and read discovery responses stating the restaurant had no video surveillance footage of the incident. Then we contrasted that with photographs taken during a site inspection that showed the restaurant had functioning video cameras pointed at the hallway and deposition testimony that the person most qualified had reviewed camera footage after the incident occurred.
• We displayed and read discovery responses stating the restaurant had no documents identifying employees working at or around the time of the incident to suggest that they were in the best position to produce this evidence but failed to do so.¹¹

When putting together the closing argument, this evidence obtained during discovery was front and center to establish liability and poke holes in the defense’s position. Ultimately, the jury found in our client’s favor.

With perseverance in obtaining evidence and careful planning, you will be able to lock in answers to discovery that you can use to support your client’s case at trial.

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AAJ Resources

Premises Liability Section

“Slip & Fall: Restaurants” Litigation Packet

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Teresa Johnson is a trial attorney at Kramer Trial Lawyers in Los Angeles and can be reached at tjohnson@kramerlaw.com.

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Notes

1. To learn more, see Sophie Zavaglia, Find the Hidden Ball, Trial, Nov. 2021, at 26.
2. See, e.g., Fed. R. Civ. P. 37; Cal. Pattern Jury Instr. Civ. 203 (2023) (“Party Having Power to Produce Better Evidence”); Cal. Pattern Jury Instr. Civ. 204 (2023) (“Willful Suppression of Evidence”).
3. California does not distinguish conditions that defendants caused and created for purposes of notice. In that scenario, notice is imputed to the property owner when the dangerous or defective condition that caused an injury was created by an employee acting within the scope of their employment. See Hatfield v. Levy Bros., 117 P.2d 841 (Cal. 1941). But see Martinez v. City of New York, 224 A.D.2d 242 (N.Y. App. Div. 1996) (“Neither actual nor constructive notice need be proven when the defendant is responsible for causing or creating the defective condition responsible for the injuries to the plaintiff.”).
4. See Cal. Civ. Proc. Code §2031.280.
5. California’s Code of Civil Procedure allows you to file a motion for issue, evidentiary, or terminating sanctions when a party has abused the discovery process. Cal. Civ. Proc. Code §2023.030. The Federal Rules of Civil Procedure permit sanctions for failure to comply with court orders on discovery and producing a person for examination. See Fed. R. Civ. P. 37(b)(2).
6. In Los Angeles Superior Court, personal injury cases are assigned to “hub” judges for litigation and then assigned to a different trial judge on the first day of trial.
7. See, e.g., Fed. R. Civ. P. 33(c) (“An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence.”); Wash. Sup. Ct. Civ. R. 33(b); Nev. R. Civ. P. 33(c); Minn. R. Civ. P. 33.02. But see N.Y. C.P.L.R. 3117 (suggests depositions are admissible at trial but N.Y. C.P.L.R. 3130 seriously limits the use of interrogatories in a personal injury matter).
8. See, e.g., Cal. Pattern Jury Instr. Civ. 209 (2023) (“Use of Interrogatories of a Party”) and Cal. Pattern Jury Instr. Civ. 210 (2023) (“Requests for Admission”). In addition, the Ninth Circuit instructs on the use of interrogatories and requests for admission at trial. (9th Cir. Model Civ. Jury Instr. 2.11, 2.12). Check your specific court for rules on how to request to read discovery responses at the time of trial.
9. See supra notes 7 & 8.
10. For more on impeaching witnesses, see Amy Collignon Gunn, Witness Impeachment 101, Trial, May 2023, at 52.
11. Cal. Pattern Jury Instr. Civ. 203.