| Discovery
Basics |
DISCOVERY REFEREE |
CONTACT |
OF CIVIL DISCOVERY LAW
© Richard E. Best 1999-2006 All rights reserved
SEE ALSO "INTRODUCTION TO
DISCOVERY"
from the Civil Discovery and Privilege textbook by Richard
E. Best
When involved in a lawsuit, a party has various formal tools to discover facts and documents from its opponent and from nonparties. A party can also discover its opponent's contentions and the factual bases, documents and potential witnesses relevant to them. Discovery serves to restrict the opposition to a specific position or set of facts and the opponent can be requested to admit the truth of facts and the genuineness of documents to avoid the necessity of proof at trial. The Civil Discovery Act provides basic tools for accessing information, eliminating issues, determining what your opponent knows etc. Each discovery tool has its unique function and inherent limitations and frustrations. It can be very expensive but may be the only means of obtaining much information and the only means to obtain it in a form that is admissible as evidence at trial. A party should pursue informal discovery by private investigation or stipulation. Today, much information is readily available on the Internet. Some believe informal discovery should be exhausted and all available information accumulated before time and money are expended on formal discovery to fill in the gaps and obtain information in admissible form.
The human factor severely limits and qualifies any advice, generalizations, or predictions. For example, good lawyers avoid discovery motions by effective and realistic use of the discovery devices and by informally resolving disputes outside of court. However, there are situations that demand that a motion be made or even that a private referee be hired to assure discovery and trial preparation will be accomplished in a cost effective manner.
The Civil Discovery Act is detailed and a careful reading resolves many disputes and answers most questions. In addition, significant case law has developed in the past 40 years to supplement and illustrate the discovery rules. The Discovery Act has been amended numerous times and was rewritten in 1986. Care should be exercised to assure that cases have not been overruled by the amendments especially in the area of admissions and experts. However, the basic tools and fundamental principles have not changed and case law is generally valid. Discovery is liberal and the standard is relevancy to the subject matter rather than admissibility. Privileges apply and limit or prohibit some discovery. Trial objections such as hearsay do not apply.
The following is a summary of the procedures and issues regarding the various discovery devices available in California. Consult the Discovery Case Outlines for detailed information on the specific discovery device. See the Civil Discovery Act for greater detail and case citations. Finally, check the New Developments page for cases, statutes and rules in the last few years. Of course, the cases must be read and subsequent history researched to determine or verify current law. You may wish to consult one or more of the following web site pages. SEE ALSO "INTRODUCTION TO DISCOVERY" from the Civil Discovery and Privilege textbook by Richard E. Best.
FEEDBACK
[email protected]
SOURCES OF LAW
FUNDAMENTAL PRINCIPLES & PROCEDURES
OF
DISCOVERY
DISTANCE LIMITATIONS
NOTICES & SUBPOENAS
OBJECTIONS TO DEPOSITIONCOMPELLING ANSWERS AND PRODUCTION
DISCOVERY DEVICES:[C.C.P. §2019.010]
The Discovery Act provides several tools for extracting information, narrowing issues and preparing for trial. Each has its own function, purpose, advantage and limitations. Recognizing these strengths and weaknesses will not only allow a party to use them effectively but will avoid frustration when they do not meet unrealistic expectations. It will also enable a party to design an effective discovery plan and to determine whether it is worthwhile to pursue discovery in court.
DEPOSITIONS: oral exam of witness; generally procede as at trial; limited objections
Advantages: spontaneity, use at trial [video],evaluate witnesses; follow-up questions and pin down witness; only means for discovery from nonparties
Disadvantages: only one person's knowledge and testimony; no investigation
Corporate depositions achieve some of the advantages of written discovery such as investigation and production of persons who can testify on more than one person's knowledge
INSPECTIONS: inspect, copy, test, sample; documents, things & land;
Alternatives: by deposition or written request for production to party
INTERROGATORIES: written questions & answers for parties;
Advantages: totality of knowledge; investigation required to answer; good for background material, contentions, identification of witnesses & documents
Disadvantages: lack spontaneity of depo, no cross exam or quick follow-up, delay
ADMISSIONS: eliminate undisputed issues and establish facts and documents, investigation required to answer
MEDICAL EXAMINATIONS when condition in controversy & good cause is shown; reports
EXPERT disclosure, discovery & deposition close to trial
Civil Discovery Act C.C.P. §§2016-36 [Minute detail covers many issues] For text & outline
Production of Evidence C.C.P. §§ 1985-1997 re depositions, subpoena, consumer notice, sanctions
Evidence Code re privileges Evid. C.§§ 900-1070[privileged matters are not discoverable]
Constitutional issues: 1st & 5th Amendment; Right to Privacy
Discovery of financial info for punitive damages: Civil Code §3295
Trade Secrets: Civil Code §3426
References to private judges: CCP §638 et seq,
Statement of damages in personal injury cases CCP §425.11
Bill of Particulars in collection cases CCP §454
California Rules of Court are of increasing importance due to the preemption of local rules by the California Judicial Council effective July 1, 2000.981.1 preempts local rules on law and motion as of 7/1/00
244.1 &.2 references to private judges by consent or over objection
301-324 Law & Motion
331-337 Discovery
335 separate statement
337 personal service on non-party deponent
FUNDAMENTAL PRINCIPLES & PROCEDURES OF DISCOVERY
DISCOVER ANYTHING RELEVANT & NOT PRIVILEGED: Discover anything relevant to the subject matter that is not privileged IF the matter is admissible or reasonably calculated to lead to the admissibility of evidence C.C.P. §2017.010
SUBJECT MATTER RELEVANCE: broad concept, liberally interpreted that may expand or contract with complexity of the case; a countervailing consideration is the burden; requesting all documents that refer or relate to all communications may be reasonable in some cases but absurd, if taken literally, in complex cases.
Circumstances and facts out of which cause of action arises
Pacific Tel.& Tel. v.Superior Court(1970), 2 Cal.3d 161, 172
Darbee v. Superior Court(1962), 208 Cal.App.2d 680, 688Promotion of settlement
Pettie v. Superior Court(1960), 178 Cal.App.2d680, 688
Assist trial preparation
Davies v. Superior Court(1984), 36 Cal.3d 291, 301
ADMISSIBILITY: "appears reasonably calculated to lead to the discovery of admissible evidence"
Norton v. Superior Court(1994), 24 Cal.App.4th 1750, 1760 [Tr Ct denied discovery of settlement agreement with insurance company on same subject as malpractice cause of action. Ct. App found the agreement clearly relevant to the subject matter and possibly admissible. Second prong of the discoverability test must be satisfied and may require an in camera inspection ]
Covell v. Superior Court(198 ), 159 Cal.App.3d 39 [sett offer not discoverable though not privileged & relevant to subject matter since not admissible and can't lead to admissible evid. Settlements to "buy peace". Writ issued to vacate order for discovery]Privileged material is not discoverable. The party asserting the privilege has the burden of proof to establish the elements of the privilege and the opponent has the burden of proof to establish an exception or waiver. The burden is properly met by an evidentiary showing by declaration.
Most privileges are created by statute and the elements are clearly defined. Some, e.g.work product, privacy, tax returns, self-incrimination, are primarily defined by case law.
OTHER GENERAL PRINCIPLES COMMON TO ALL DISCOVERY
There is a 10-20 day hold at the outset of the case on plaintiff's discovery
Discovery should be self executing outside of court
Court orders to conduct discovery are not required normally
Parties cannot refuse discovery without taking proper action to object or seek a protective order
Parties must meet and confer in good faith to resolve issues prior to any motion
Discovery must be initiated by demand or notice for discovery
Timely response must be made to a demand or objections will be waived
Lack of verification = no answer but objections need not be verified
Timely motion for further responses must be made or the right to further responses may be waived
Relief from waivers may be obtained on proper showing
Protective orders are available to control abuses. See C.C.P. §2017.020, 2019.030, 2019.020(b) + each discovery device
Discovery is enforced by sanctions: money, issues, evidence preclusion, dismissal or default
No party has priority except by court order See C.C.P. §2019.020
Extensions must be in writing and specify the date
DISCOVERY CUTOFF: The right to conduct discovery terminates __ days prior to trial for discovery and __ days prior to trial for motions. See C.C.P. §2024. Discovery must be due or a deposition set to commence on or before that date.C.C.P. §2024.010. Note the computation rule of C.C.P. §12. Counsel must plan for the cutoff and anticipate problems in obtaining adequate responses in order to be able to complete discovery. See Discovery Cutoff Case Outline
Cutoffs:
Generally: 30 days for due date; 15 days for motions
Experts: 15 days / 10 days
Unlawful detainers: 5 days / none for motions
Extensions: court order or written agreement specifying the date
Initial trial date is the crucial date except for arbitrations
Trial continuance does not reopen discovery
ARBITRATION:15 days[any date, not "initial"date] C.C.P. §2024.040(a) CRC 1612
No discovery after arbitration except for experts CCP§1141.24Continuances of arbitration reopen discovery
Extensions of time to respond
Mail: 5 days [C.C.P. §§2016.050, 1013]
Due dates extension: if on Sat., Sun. or Holiday [C.C.P. §§2016.060, 12a et seq]
Agreements: in writing specifying datesLimitations on form, style and number of interrogs & admissions of fact
Limit of 35: declaration to justify if > 35, protective order motion by responder, B of P on propounder to justify
No limit re document production or admission of genuiness of documents
Full & complete without preface, instructions or subparts
No compound, conjunctive or disjunctiveMotions / Sanctions to prevailing party & to achieve discovery
DEPOSITIONS
[C.C.P. §§2025, 2020, 1985-1997] See
also the Deposition Case Outline
Oral questions of any witness under oath transcribed by a court reporter. The examination proceeds as at trial with all parties having an opportunity to be present, to cross examine the witness, and to obtain a copy of the final transcript. Documents may be required to be produced at the time of the deposition. The deposition may be video or audio taped. Although out of pocket costs are incurred, some believe this is the most cost effective means of discovery particularly if preceded by limited but well drafted document requests and background interrogatories.
Judicial Council forms available in most courts, from private vendors of software allowing completion of forms electronically and on line.
Consumer Notices [C.C.P. §1985.3, .6] when seeking personal records of individuals
Notice of deposition served on all parties who have appeared C.C.P. §2025.240(a)
Content of Notice C.C.P. §2025.210
Non-party: subpoena witness & notice parties who have appeared;
C.C.P. §2025.280(b) subpoena required
C.C.P. §2020.310 depo of individual or corporation; only seeking testimony
C.C.P. §2020.410 records only
C.C.P. §2020.510 oral depo and records production
Only means of compelling non-party discovery C.C.P. §2020.220, 2025.220(a)&(b)
Notice to some adverse party requiredCalifornia Shellfish v. United Shellfish (1997), 56 Cal.App.4th 16
Subpoena issued by attorney or clerk C.C.P. §1985(c)
Parties: notice sufficient for in state and out of state depositions C.C.P. §2025.280(a)Individuals
One depo of natural person C.C.P. §2025.610
Motion to compel attendance at greater distance than that permitted. C.C.P. §2025.250(a)Corporations
Individual employees, officers, etc. of party: C.C.P. §2025.280(a)
Corporate deposition CCP §2025.230
Records only ? Notice "custodian" CCP §2025.220(3); or notice corporation or notice pursuant to both sections
Out of State Depositions [C.C.P. §2026]Notice parties C.C.P. §2026.010(b)
For non-parties use process of local jurisdiction.
Commission to obtain subpoena for non-parties C.C.P. §2026.010(f)
The commission is obtained where the action is pending and is used in the foreign state to obtain a subpoena and utilize the powers of that jurisdiction to compel attendance and testimony. Court practices differ and counsel need to satisfy the jurisdiction in which the subpoena is to issue and the deposition is to be taken. Currently clerks can issue commissions but the foreign jurisdiction may require a court order from the judge.
CCP §2029 provides the procedure for taking depositions in California for use in foreign jurisdictions.Foreign countries [C.C.P. §2027]
Notice parties
On motion, court issues letters rogatory, commission, etc if necessary or convenient
Hague convention
Objection to notice C.C.P. §2025.410;
Re noncompliance with C.C.P. §2025.210 [time, content & service, location, date]
If no objection, waive those objection to form etc of notice
Cannot use depo against objector if he doesn't attend & objection is valid
Documents ? (d)(4): objection probably does not excuse production
May seek protective order in addition to objection to notice;
Automatic stay of deposition if seek protective order under this section i.e. based on notice defects
Procedure limited to notice defects;Protective order per C.C.P. §2025.420 to quash deposition for reasons other than defective notice
Party or deponent may seek
"promptly move for a protective order"
No automatic stay
Seek ex parte order staying depo pending hearing
Notice void on its face:
May be ignored
Better to object and/or seek protective order
Amoco Chemical v. Certain Underwriters of Lloyds(1995), 34 Cal.App.4th 554 [No objection required to a notice void on its face that purported to require an out of state custodian to attend trial.]
COMPELLING
ATTENDANCE,
PRODUCTION
OF
DOCUMENTS
& AWARDING MONETARY SANCTIONS [CCP §2025(j)]
Provisions for sanctions against anyone causing process to breakdown
Meet and confer to resolve issues; see Meet & Confer Case Outline
Contact deponent if there has been a failure to appear
VIDEO or AUDIO TAPING DEPOSITION C.C.P.
§2025.330(c)
Notice of intent to videotape required in notice of depo C.C.P. §2025.220(a)(5)
Simultaneous taping by any other party if notice given
Detailed procedures specified re manner of taking video depositionSee Green v. G.T. E. California, Inc. (1994), 29 Cal.App.4th 407 [a short lesson on what not to do]
Use of physician or expert depo at trial in lieu of oral testimony CCP §2025.620(d)
Procedures: C.C.P. §2025.330(d) "Proceed as permitted at trial"
Objections waived if not made: privilege, curable errors CCP §2025.460
Preserving objections to form of question
C.C.P. §2025.460
Chavez v. Zapata Ocean Resources (1984) 155 Cal.App.3d 115,124[examples provided: leading, argumentative, repetitive, uncertain or unintelligible, omnibus, compound, assuming facts not in evidence]Deposition taken subject to objections C.C.P. §2025.460(b)
Relevancy objections not waived C.C.P. §2025.460(c)Handling difficult witnesses and lawyers
Suspending the depo for misconduct to seek protective order C.C.P. §2025.470
Appoint referee per C.C.P. §639 et seq
Videotaping to encourage good behavior C.C.P. §2025.330(c)
Hall v. Clifton Precision (1993 E.D Pa.), 150 FRD 525 [Guidance re improper conduct of counsel on consulting with client etc.]
International Insurance Co. v. Montrose Chemical Corp.(1991), 231 Cal.App.3d 1367.[hardball tactics condemned in awarding sanctions for not producing docs per Ev.C.§771]
SUSPENDING DEPOSITION TO SEEK
PROTECTIVE ORDER [C.C.P. §2025.470] OR TO COMPEL
ANSWERS [CCP §2025.460(b)]
COMPELLING ANSWERS AND
PRODUCTION OF DOCUMENTS CCP §2025.480
Motion no later than 60 days after completion of the record
CRC Rule 335 separate statement
CRC Rule 337 personal service on nonparty deponent
Meet & confer requirementsSee Townsend v. Superior Court(1998), 61 Cal.App.4th 1431 [Debate at the depo was insufficient. Ct App held the trial court had no jurisdiction to rule on the objections until there had been a good faith meet and confer]
COMPLETION OF DEPO & CORRECTION OF TRANSCRIPT [CCP §2025.520]
George v. Double D. Foods(1984), 155 Cal.App.3d 36,45
Note statutory changes and use of stipulations
USE OF DEPOSITION AT
TRIAL
[CCP §2025(u), (g)]
CCP §2025.620 Impeachment & against adverse party
CCP §2025.620(c) use of any depo for any purpose if(A) deponent resides >150 miles from trial
(B) deponent dead, unable to attend, can't compel attendance etc
(C) exceptional circumstances justifying useChavez v. Zapata Ocean Resources (1984), 155 Cal.App.3d 115 [Motion to suppress properly denied. Transcript regular on its face; reporter certification; both had copies; note 1976 changes in statute re earlier cases]
Bailey v. Superior Court (!977), 19 Cal. 3d 970 at p.974 [. In Voorheis v. Hawthorne-Michaels Co. (1957) 151 Cal.App.2d 688 [312 P.2d 51], the court held that the written deposition of a witness who had died before he read and signed it could not be read into evidence because it had not been properly authenticated. The court also stated that the term "deposition" is "now confined in meaning to testimony delivered in writing." (Id., at p. 692; see also People v. Hjelm (1969) 224 Cal.App.2d 649, 654-655 [37 Cal.Rptr. 36].)]
D'Amico v. Board of Med.Examiners (1974), 111Cal.3d 1
Sprague v. Equifax (1985), 166 Cal.App.3d 1012 [exclusion of depo at trial when tr ct finds a lack of fair opportunity to cross examine is not abuse of discretion]
Pollard v. Pollard (1959) 166 Cal.App.2d 698 at p.705 [Proponent took depo to perpetuate testimony, continued it when it was substantially completed, never resumed it, & deponent died. Objection to admission sustained by trial court. "...no abuse of discretion in refusing admission of the partial deposition...."]
(D) Video deposition of physician or expert if noticed for use at trial C.C.P. §2025.620(d)
Party noticing depo pays for transcription C.C.P. §2025.510(b)
Copy available to any party upon payment of reasonable fee C.C.P. §2025.570
Payment of fees required no matter how unconscionable
Urban Pacific Equities Corp. v. Superior Court(1997), 59 CA4th 688
DOCUMENT PRODUCTION See Document Production Outline & Electronic Data
ALTERNATIVE methods to discover documents
Nonparties: deposition only method for nonparties [see CCP §§1985, 1987.5]
Records only CCP §2020.410
Delivery to deposition officer Ev.C.§1560(c)
At deponent's business if instructed Ev.C.§1560(e)
Production & oral exam; includes testing & sampling of things CCP §2020.510
Parties: Noticed deposition of party to produce materials or things [CCP §2025.220(a)(4)]
Request for production to party (includes land inspections, testing etc) [CCP §2031 ]
Formal demand
Respond within 30 days [5 days for U.D]; if not waive objections
Move for further responses within 45 days; if not waive right
Possible relief from waivers
Combine CCP 2031 request with deposition notice
Consumer notice when seeking personal records, telephone records, employment records by deposition [CCP§1985.3 & .6]; not required with request to party per CCP §2031
Notice to consumer that personal records are being sought
Serve proof of service or consumer consent on witness [CCP §2020(d2), §1985.3(c)]
Motion to quash by party or objection by nonparty served on witness
If so, no production required except per court order or agreement
Documents used at depo to refresh recollection [Ev.C.§771]
DESIGNATION: designate documents with reasonable particularity CCP §2025.220(a)(4)
Calcor Space Facility v. Superior Court(1997), 53 Cal.App.4th 216 , at p.222 [facially detailed subpoena in essence asked for all documents on subject and required extensive search and effort to fit into categories]
CCP §2031.030(c)(1) re document requests
Depositions
Motion to quash or for protective order prior to depo[CCP §2025.420)]
Suspend depo & seek protective order C.C.P. §2025.420
Refuse to produce at depo & require motion to compel [CCP §2025.450]
No pre-depo procedure to simply object [Cf.CCP §1987 pretrial]Requests for Production: timely objection CCP §2031.240
Identify document with particularity
Set forth specific ground for objection
State the particular privilege asserted
No provision for general objections or objections without identifying documentsWaiver of objection if not timely made [CCP §2031.300(a)]
REQUESTS FOR PRODUCTION of documents & things for inspection etc. [CCP §2031]
See Document Production Case Outline (Note 2031 includes land inspections, testing etc)
Proper response C.C.P. §2031.210(a)Most common error and cause of motions is failure to comply with details required in statute for responses and assertion of "general" objections
Alternative responses:
Will comply with the request
Lack ability to comply [If so, affirm diligent search and reasonable inquiry, state why unable, and identify the person believed to possess them]
Objection to the particular demand [If so, identify with particularity the specific ground for objection and the particular privilege.
Failure to comply with the above should normally result in the granting of a motion to compel and monetary sanctions
Lack of timely objection as waiver [CCP §2031.300(a)]
Scottsdale Insurance Co. v. Superior Court (1997) 59 Cal. App.4th 263 [failure to include specific objection in initial response is waiver; ct rejects argument that making any response defeats waiver]
Korea Data Systems Co.Ltd. v. Superior Court [timely A/C objection tho not properly made in accord with 2031 avoids waiver; boilerplate objection sanctionable]Compel compliance with an agreement but failure to produce CCP 2031.320
Manner of Production CCP 2031.280
As kept in usual course of business
Organized & labeled by category per demand
Translate data compilations into usable form
See Toshiba America Electronics case re cost shifting for production of electronic data
INTERROGATORIES See Interrogatory Case Outline See also Deyo v. Kilbourne (1978), 84 Cal.App.3d 771 for general discussion
DUTY OF INVESTIGATION TO ANSWER WRITTEN DISCOVERY [C.C.P. §2030.220]
"...as complete and straightforward as the information reasonably available...permits"
"...answered to the extent possible...."
"...make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations...."Information available to agents and attorneys.
Gordon v. Superior Court (1984), 161 Cal.App.3d 157, 167 [Party may be bound to incorrect answer if the other party is prejudiced; party cannot plead ignorance to information obtainable from sources under its control.]
Corporate knowledge
Castaline v. City of Los Angeles(1975), 47 Cal.App.3d 580, 588[Corporation duty to provide info available to corporation not just signer ]
Employer/Insured
Pantzalas v. Superior Court (1969) 272 Cal.App.2d 499, 504.
[Employer of insured under group policy is agent of the insurance company and the insurance company must answer interrogatories by providing information known to the employer.]Attorneys
Unger v. L.A. Transit Lines (1960) 180 Cal.App.2d 172, 175.[Motion for inspection of materials in possession of attorneys for insurance company are in possession of insured.]
Experts
Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427.[Sanctions imposed for party's refusal to obtain information from its own expert. (See also Tehachapi-Cummings County Water Dist. v. Superior Court (1968) 267 Cal.App.2d 42, 46.]
Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 322.
(may have to consult experts to respond to request for admission.)Not terminated expert
Mowry v. Superior Court (1962) 202 Cal.App.2d 229.
(Agent doesn't include an expert hired for a particular purpose whose employment has terminated.)Not independent parties
Holquin v. Superior Court (1972) 22 Cal.App.3d 812.
[Party need not contact independent party to answer interrogatories.)A party need not hire private investigators to travel to Spain to verify facts re admissions
Lindgren v. Superior Court (1965) 237 Cal.App.2d 743, 748.
Not legal research
Sav-on Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1.
[Party need not conduct legal research to answer interrogatories re: legal authority for tax deductions.]Specify efforts made
Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782. [If a party is unable to fully answer it should set forth the efforts made to secure the information.]
General Objections & Boilerplate disapproved
Standon v. Superior Court(1990), 225 Cal.App.3d 898
Objections to entire set improper; answering party should seek protective order
United Farm Workers of America v. Superior Court (1975) 47 Cal.App.3d 334, 347 (Abuse of discretion to strike entire set of interrogatories even though "many. . . appear to have no relevancy and appear intended only to harass.")
Wooldridge v. Mounts (1962) 199 Cal.App.2d 620.[Set stricken on eve of trial.]
Cembrook v. Superior Court (1961) 56 Cal.2d 423, 430. [Objections to entire set of requests for admissions indicates a lack of good faith.]Form interrogatories not objection proof
Nacht & Lewis Architects v. Superior Court(1996), 47 Cal.App.4th 214 [tr.ct. rev'd for compelling further answers over .work product obj. to 12.2 based on answers to 12.1.; interrog not invalidated; further consideration of 12.3 ordered]
Burden of proof is on party making objection to sustain objection
Coy v. Superior Court (1962) 58 Cal.2d, 210, 220.
Columbia Broadcasting System Inc. v. Superior Court (1968) 263 Cal.App.2d 12.
References to documents: general reference [CCP §2031(f)(2)]
Supplemental interrogatories [CCP §2030(c)(8)]
No continuing interrogatories [CCP §2030(c)(7)]
Binding nature of interrogatory answers
Amended answers without leave of court [CCP §2030(m)]Propounder can use orig. ans & can move to bind to original
Under prior law, cases denied motions to amend if prejudicial
Cf. admissions where motion required to amend CCP§2033(m)
REQUESTS FOR ADMISSIONS
[See CCP §2033 and Admissions
Case Outline]
SUBJECT OF ADMISSIONS
Genuiness of documents
Facts
Opinions relating to facts or application of law to fact
SCOPE, PURPOSE & FUNCTION OF
ADMISSIONS
Set to rest triable issues so as to expedite the trial rather than trial preparation
CCP §2033 "...may relate to matter that is in controversy...."
Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429
Brigante v. Huang(1993) 20 Cal.App.4th 1569 at p.1576
Shepard & Morgan v. Lee & Daniel (1982)130 Cal.App.3d 256 ["...to uncover undisputed factual issues, not to compel an election of defenses or remedies."]
Hillman v. Stuitz (1968) 263 Cal.App.2d 848, 885.("They were enacted to eliminate the necessity of putting on formal proof of essentially uncontroverted facts, not as a substitute for trial of genuinely disputed facts.")
Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323-324.("If '(defendants) do not intend to contest any of these facts, the statute requires them to say so now, by an admission . . . if they want to put plaintiffs to their proof, they may deny. . .")
Zorro Investment Co. v. Great Pacific Securities (1977) 69 Cal.App.3d 907, 913.
Smith v. Circle P. Ranch (1978) 87 Cal.App.3d 267, 273.
International Harvester Co. v. Superior Court (1969) 73 Cal.App.2d 652, 655.Requests for admission of law may not be proper.
Lieb v. Superior Court (1962), 199 Cal.App.2d 364, 368.
Burke v. Superior Court (1969), 71 Cal.2d 276, 282.
Requests should be admitted if a party does not in good faith intend to contest the matter at trial.
Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 273.
Burke v. Superior Court (1969), 71 Cal.2d 276, 282.
Hazeltine v. Hazeltine (1962), 203 Cal.App.2d 48 [admit when fact cannot be reasonably disputed; tr ct found good faith in denying 23 of 27 requests]
Limit of 35 fact admissions, subject to declaration & protective order
Don't combine with other discovery in one document
Responses[CCP2033(f)]: "complete and straightforward" "answer the substance or object"Object: in part or whole; state specific ground or privilege
Admit: can do so in part or as qualified
Deny
Lack sufficient information or knowledge to admit
+ declare reasonable inquiry madeDeemed Admitted Motion if no response
Mandatory grant unless
before hearing serve
proposed response in compliance with codeMandatory monetary sanctions
Post trial monetary sanction for failure to admit if matter proven
Reasonable expenses & attorneys fees incurred in making proof
Not if admission of no substantial importance
Not if reasonable ground to believe respondent would prevail on issue
Not if other good reason for failure to admit
RELIEF
FROM
ADMISSIONS FOR FAILURE TO RESPOND
Wilcox v. Birtwhistle (11/22/99), Cal.4th [Matters deemed admitted due to lack of verification of responses. Prompt motion for relief after windfall summary judgment. Held: "...a party may withdraw or amend admissions deemed admitted for failure to respond upon a showing of 'mistake, inadvertence or excusable neglect and no substantial prejudice pursuant to (m)" CCP 2033(m) applies to all admissions including those deemed admitted for failure to respond pursuant to (k). The case overrules or disapproves prior appellate decisions to the contrary: e.g. Courtesy Claims; St.Paul; Allen-Pacific, Demyers, Brigante, Tobin]
See the following
Allen-Pacific Ltd v. Superior Court (1997), p.1551[dictum] 1555
Courtesy Claims Services v. Superior Court(1990),
Tobin v. Orvis(1992), at p.827
St. Paul Fire & Marine v. Superior Court(1992),2 Cal.App.4th 851 [w/d or amend provisions don't apply to allow relief from waiver]
Workman v. Superior Court (19 ), 176 Cal.App.3d 493 [prior law; no inherent equitable power to grant relief beyond time permitted in statute]
Cf. Brigante v. Huang(1993), at p.1584 [No CCP 473 relief but 2033(e) pro ord available]
Demyer v. Costa Mesa Mobile Home Estates
Judicial Council form interrogatory 17.1 provides 35 contention interrogatories
MEDICAL EXAMINATION
[see CCP §2032 and Medical
Exam Case Outline]
Notice procedure for physical exam; court order for mental exam
Mental or physical condition must be "in controversy" & good
cause
shown
Mental examinations
Not authorized for "normal" emotional distress
Not authorized to test credibility of partyDoyle v. Superior Court(1996),50 Cal.App.4th 1878
Sexual harassment cases
Vinson v. Superior Court (1987), 43 Cal.3d 833[no mental exam in normal case]
Doyle v. Superior Court(1996)
Right to Privacy as limiting type & scope of exam
Right to report as quid pro quo for exam: Kennedy v. Superior
Court (1998), 64 Cal.App.4th 674
Court order for medical exam is defective if it fails to specify
time,
place, manner, conditions etc.
Harabedian v. Superior Court (1961) 195 Cal.App.2d 26.(Combination of notice of motion plus order can provide specifics.)
Bittle v. Superior Court (1976) 55 Cal.App.3d 489.
EXPERT WITNESSES [see CCP §2034 and Expert Case Outline]
DEMAND FOR DISCLOSURE
Timing of service of demand
After setting initial trial date
No later than the closer to the trial date of10th day after setting of initial trial date
70 days prior to initial trial dateArbitration: Expert discovery permitted after arbitration [CCP §1141.24]
Contents
Specify Date of Exchange: the closer to the trial of
50 days before the initial trial date
20 days after service of demand
Can be changed by court on noticed motion for good causeMay include demand for discoverable expert report & writings
Service
Demanding party must serve all parties
DISCLOSURE
re experts & information
Timing: on or before the date of exchange specified
Manner: meeting or by mail
mutual and simultaneous by all parties
Name and address
Any natural person whose expert opinion you intend to offer
Party
Treating physician
Factual witnesses
Expert witness declaration
Experts:
Party or Employee of Party
"Retained"Expert: retained by Party for purpose of forming & expressing opinion in anticipation of litigation OR in preparation for trialNot required for "Percipient" witness
Need not be paid but any agreement or arrangement to testify other than as percipient witness suffices.
Treating physician is not a "retained" expert merely becasue he renders an opinionSchreiber v. Estate of Kizer(1999), 22 Cal.4th 31 [ treating physician is not "retained" just because he gives expert opinion testimony]
Contents
Fair notice of subject areas & opportunity to depose
Bonds v. Roy(1999), 20 Cal.4th 140 [Exclusion of testimony aff'd on appeal. Expert disclosed on damages clearly limited testimony to such in depo, then was offered at the end of the trial on std of care. Declaration must fully comply with the five separate content requirements of 2034(f)(2). Inadequate description = no disclosure. Castenada and Martinez disapproved]
Paxton v. Stewart(1998), 68 Cal.App.4th 331 review granted [testimony re liability, causation and dgs. insufficient notice re std. of care]
Schreiber v. Estate of Kizer (1998), 68 Cal.App.4th 119 review granted [One word "causation" sufficient disclosure for subject matter]
Casteneda v. Bornstein (1995), 36 Cal.App.4th 1818 disapproved in Bonds [tr ct rev'd for excluding expert for failing to disclose causation subject matter]at p.1828
Martinez v. City of Poway(1992),12 Cal.App.4th 429 disapproved in Bonds[Tr ct den motion to augment re accident reconstruction testimony & ct ap found denial proper; mot in limini granted prohibiting such expert testimony; tr ct rev'd on grounds defective description of testimony does not permit exclusion under current law]
Subject to be covered by designated adverse witness
If party has not previously retained an expert on that subject
Not substitution of expert on same subjectBasham v. Babcock(1996), 44 Cal.App.4th 1717 [Confine to new matter [or exclude testimony] of improperly designated supplemental expert. Tr Ct rev'd. Can't testify on same subject matter as original since original expert was "previously retained...on that subject"; radiologist to replace orthopedist on preexisting back injury issue; original orthopedist did not testify at all and went "on vacation" which prevented plaintiff from calling]
Casteneda v. Bornstein (1995), 36 Cal.App.4th 1818, at p.1830 [inadequate disclosure in declaration may justify augmentation by opponent; tr ct rev'd for excluding expert for failing to disclose causation subject matter]
Dickinson v. Howen(1990), 220 Cal.App.3d 1471,1478 [ No prejudice from substituting one expert for another when new expert testifying on same subject and opposing counsel's needs accommodated.]
Martinez v.City of Poway (1992),12 Cal.App.4th 429 [Dictum re proper to deny augmentation when 22 day delay in making motion & hrg 2 wks before trial; exclusion at trial rejected since some disclosure was made, however inadequate]
Sprague v. Equifax Inc. 166 CA3d 1012 [prior law; motion to call undisclosed expert made during trial denied; delay in acting; reliance on other defendants to provide expert testimony was a deliberate tactic and not excusable neglect
Mistake inadvertence excusable neglect
Plunkett v. Spaulding(1997),52 Cal.App.4th 114 [Honest mistake of law where problem is complex and debatable is mistake, inadvertence or excusable neglect allowing late disclosure; issue re whether treating physician is a retained expert.]
Schreiber v. Estate of Kizer (1998), 68 Cal.App.4th 119, review granted [tr ct should be liberal; abuse of discretion to reject motion if honest mistake of law]Prejudice
Gallo v. Peninsula Hospital(1985)164 Cal.App.899 [ prior law. Adopting co-def. disclosure by ref.+ immediate notice of intent to call when co-def. settled insufficient diligence when prejudice from taking depo during trial w/little prep time on technical subject when expert long known to def]
Dickinson v. Howen(1990), 220 Cal.App.3d 1471,1478 [ No prejudice from substituting one expert for another when new expert testifying on same subject and opposing counsel's needs accommodated. Prejudice comes from inability to prepare or respond.]
Production of discoverable reports & writings may be demanded
PROTECTIVE ORDER
Ex parte motions & orders, CRC Rule 379
Meet & confer requirements in provisions governing each discovery device
Prior to motion
Declarations accompanying motion "stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion."
CCP §2023 monetary sanctions for failure to meet and confer- $ incurred due to failure to meet & confer
- regardless of outcome of motionSee the Townsend and Obregon cases for guidance
Motion: who wants what against who why [i.e. what legal & factual basis]A succinct and well written motion that quickly informs the court what you want, why you want it and what authority you have can set the stage and go a long way toward convincing the court to rule in your favor. Rambling, vague motions are ineffective
Supporting papers
Declarations: burden of proof on proponent of issue and need evidence to support position Separate statement of disputed discovery requests & responses: CRC Rule 335
Points & Authorities
Complimentary copies: if not required may be good idea to assure papers before court in some organized manner; extra copy for the law clerk, if any
Local Rule preemption by California Rules of Court 981.1 effective 7/1/00Scheduling of Motions
Scheduling / discovery cutoffs: plan for delays, poor responses, court delays, cut offs
Court Hearings: may need to schedule with court in advance; delay of hearingSpecial days and/or times may be set aside for law & motion matters
Special departments may hear motions in master calendar courts
Tentative rulings CRC Rule 324, See also Judicial Administration Standard §22
Available by telephone by 3:30 the day prior to the hearing
To argue must give notice of intent to oppose to opposing party by telephone by 4:30; only applies if court's local rules require notice of intent to be given
Sanctions:
Purpose: make whole & accomplish purpose of discovery; not windfall or punishment:
CCP §2023 requirements for sanctions motion
Identify person, party or atty against whom seek sanctions
Specify type of sanctions sought
P& A + declaration re amount sought
Monetary: "mandatory" against loser unless substantial justification or injustice
Additional sanctions for violation of court orderissues, evidence, terminating
discretionary
monetary in lieu of or in additionSpoliation: Cedars-Sinai Medical Ctr. v. Superior Court (1998),18 Cal.4th 1; Sherman v. Kinetic Concepts,(1998), 67 Cal.App.4th 1152. R.S Creative (10/4/99) cases plus prior cases relying on CCP §2023 may have expanded sanctions powers beyond statutory authority
Orders: include findings required or implicit in statuteReasonableness of attorneys' fees awarded as sanctions
Marriage of Nicklas(1989)[Cursory description of services is inadequate; evidence must support amount incurred & court must determine that it is reasonable]
If deny sanctions, make finding re injustice or substantial justification
California Shellfish v. United Shellfish (1997), 56 Cal.App.4th 16, 26 [express findings only required if sanctions denied; find "substantial justification" for conduct or "injustice" from awarding sanctions; detail and particularity in findings not required]
REFEREES / PRIVATE JUDGES [CCP §638 et seq, CRC Rules 244.1 and 244.2]
See Referee Case Outline;
Note the statute was significantly revised effective January 2001
and
new CRC Rules effective July 2001
Motions requesting the appointment of referees to supervise or rule on discovery matters has increased in recent years in order to curb discovery abuses and save money consumed in court battles on discovery motions. Referees are particularly effective in controlling depositions but are also cost effective for scheduling and immediate access, informal resolutions, letter briefing, telephonic rulings, etc. Counsel may be able to select the referee to assure the person has the experience, time, expertise, temperament, intellect and skills to handle the needs of the parties and counsel. Counsel might agree on the ground rules or the purpose of the reference to assure their objectives are achieved. In addition, concerns not addressed in the cases, rules and statutes can be addressed in the appointment order.
The Code of Civil Procedure provides for both consensual and non-consensual references, expressly providing for discovery references in CCP §639(e). Lawyers and appellate court have noted abuses and suggested trial court have routinely referred discovery matters to favored referees over the objections and without the meaningful input of counsel. Numerous cases and court rules have addressed and prohibited such abuses. In addition, legislation has been enacted effective January 2001 enacting many of the issues addressed in the cases and rules.
