Discovery Flashcards
Discovery (Definition/Purpose/What Happens to Docs/Methods/Forms/Response Verification)
When each side is given the opportunity to discover facts and evidence from the other side
Process by which attorneys assess the other side’s facts, evaluate witnesses, and discover additional information that may not have been available when lawsuit was filed
Documents filed with courts (complaint, response, etc.) do not necessarily contain detailed information about the case, this information is brought about by discovery
Documents discovered are not/cannot be filed with the court, but can be added to used as exhibits to motions or other pleadings filed with court
Original discovery docs are kept by the propounding party until 6 months after the final disposition of the action
Several methods of discovery, which is used depends on type of case and the information already provided by the client
Forms have been included for the most common methods of discovery
Responses to discovery are signed under oath
Methods of Discovery
interrogatories
Demand (or Request) for Production of Documents/Things
Request for Admission
Depositions
Subpoenas
Demand for Physical Examination
Exchange of Expert Witness Testimony
Cutoff Date/Completion for Discovery (Deadline/continuation/extensions/arbitration/calendaring)
Discovery must be completed 30 days before the trial date and 15 days before the arbitration date
If trial is postponed/continued, cutoff dates are not necessarily extended
The parties can stipulate/petition for an extension of the dicovery cutoff dates
No discovery is allowed after the arbitration is completed, except for depositions of expert witnesses
Parties can also stipulate to waive this as well
CALENDAR DEADLINE!!!
Discovery: Types of Service
Personal Service
Mail service
Overnight delivery/express mail Service
Electronic/email/fax service
Discovery: Service Response Deadlines
Response deadlines vary depending on the manner of service
30 days to respond
Depending on method of service, response deadline may be extended under Code of Civil Procedure section 1013
Mail Service: Response deadline is extended by 5 calendar days
Overnight Mail: Deadline is extended by an additional 2 court days
E-Service: Deadline extended by an additional 2 court days
Proof of Service
Must be attached to last page of document being served, proves doc was served in correct manner
What happens to discovery docs
Original discovery documents (as opposed to copy) and copy of POS are kept by propounding party and are kept until at least 6 months after end of trial, should docs need to be lodged with the court
Responding party gets copies of docs and keeps original POS
Copies of docs sent to all other parties in the action, even if not directed towards them
Propounding party will keep original request and the original response
After You serve Your Documents (Calendaring/If no response/timetable)
CALENDAR RESPONSE DEADLINES!!!
If no response/untimely response, may be necessary for attorney to take further action
There is a discovery timetable in the Law Offices Procedure Manual
Response v. Answer
Very important to use the term “response” and not “answer”
“response” means both answer and objection
If doc says “answer” instead of response, and contains objections, opposing counsel can get objections stricken by court order
Responding to Discovery: Extensions
It is common for attorneys to ask for deadline extensions re: disvocery, and they are usually granted as professional courtesy, but that doesn’t mean such a request will always be granted
If asked to call an office to request an extension, make sure to use the term “response” and not “answer”
If you request an extension to “answer” requests, your attorney may be waiving right to assert objections
If extension is granted, it is best to get extension in writing anfd to comfirm extension with opposing counsel in writing
If granted, be sure to calendar new deadlines
Sending Discovery Requests to Clients
After submitting/receiving discovery requests, attorney may ask you to send copies of discovery requests to client for their review and/or to get docs from them
Draft a shell response pleading in preparation for the input of client responses
After client provides info, responses are then prepared in required format
Client review final product and signs verification
Verification (What is it/Who Signs for Individual/Who Signs for Corp/Rules/Requirements)
states party has read a document and that its contents are true and correct
signed under penalty of perjury
Public/private corp has designated agent to sign verification
If person signing verification on behalf of a party is an attorney acting in that role for the party, they waive any attorney-client privilege with whomever they sign on behalf of, and thus lawyers do not usually sign verification
No verification needed if response only contains objections
If combo of responses/objections both attorney and client sign
Attorney for responding party signs any response containing objection
Response to Discovery (Original Docs and Copies/POS)
Original Documents (as opposed to copies) are served on the propounding party
Copy kept for office file or, if necessary, to be lodged with the court
Originals must be kept for at least 6 months
Be sure to attach POS (original kept by office, copy attached to original docs being served on the propounding party)
Interrogatories (Definition and Deadline)
Written questions directed to a party, answered under oath in writing
Responding party has 30 calendar days (in addition to any relevant extension) from the service date to serve a response
Types of interrogatories
Form
Special
Supplemental
Form Interrogatories
Interrogatories with nonspecific, predetermined questions
Can be prepared on pleading paper
Judicial Council form available which is much easier to use as the attorney simply checks box
Can propound as many sets of form interrogatories as needed (won’t be deemed harassment)
Special interrogatories (definition/Number of Questions/Subparts/Format/Numbering/Contention/Question Sets)
Specially prepared questions for a party to answer under oath
Limited to 35 questions, unless accompanied by declaration
Question cannot contain subparts
Prepared in captioned pleading format
Numbered consecutively
Contention interrogatories are a form of special interrogatory
Can break questions into sets but they must be numbered consecutively
You can send as many sets as needed so long as you do not exceed 35 questions per party in total
Supplemental interrogatories (Definition/Purpose/Max Amount)
Basically asks party to review answer(s) previously given and if anything has changed to provide that information
Used by propounding party to obtain info relating to previous responses to interrogatory
Can propound twice before trial is set, once afterwards
Responding to interrogatories (Calendaring/Penalty for Missed Deadline/Role of Assistant/Objections)
CALENDAR THE TIME WHEN THE CLIENT’S RESPONSE IS DUE
Attorney will forward request to client for their responses
if response is not timely, objections are waived
Prepare template response shell
Once responses are returned from client, attorney will prepare them in correct format
client will then review and sign verification
attorney will sign if response contain objections
Propounding Interrogatories (Things to Remember)
Make sure to complete/attach POS
Calendar when to expect responses by
If response not received by due date, inform attorney for further action (motion to compel)
Request for admission (Definition/Purpose/Who does what/Response Deadline)
Discovery procedure in which a party is requested to admit or deny statements of fact—not questions
Procedure serves the purpose of narrowing disputed areas in a case
The party requesting admissions shall serve a copy of them on the party to whom they are directed and on all
other parties who have appeared in the action
The requesting party keeps the originals in the file.
There is/are Judicial Council forms available but they are not mandatory
Response due 30 from service
Request for Admission (types)
Request for admission of fact
request for admission re: Genuineness of Document
Request for Admission of Fact (How Many Statements/Form or Pleading/Paragraph Rule/Numbering/Instructions/Font)
Limited to 35 questions
Can prepare a declaration for additional discovery if more than 35 questions
Text for such a declaration can be found in code of civil procedure, section 2033.050
Can use JC form or a captioned pleading
In first paragraph below title of the case, state identity of responding party, the set number, and the identity of the demanding/propounding party
Each request in a set shall be separately set forth and identified by letter/number
Each request shall be full/complete in and of itself
No preface or instruction shall be included with a set of admission requests
Any term specially defined in a RFA shall be typed with ALLCAPS whenever term appears
Request for admission re: genuineness of document (How many/what must be included/Requirements on Requesting Party)
Unlimited
Copy of document for authentication must be attached as an exhibit
Party requesting an admission shall make original documents for which they are requesting authentication available for inspection by the party to whom requests are directed
Responding to RFA (Deadlines/Extensions/Rule for Doc/Service/Verification/What happens if you miss deadline)
30 calendar days to respond
Plus any additional time depending on the method of service
Important docs that require careful calendaring
May agree on extension of deadline for service of response to RFA
Agreement may be informal, but it shall be confirmed in writing that specifies the extended date of
notice of such an agreement shall be given by the responding party to all other parties who were served with a copy of the request
Serve original of the response on the requesting party, a copy of the response on all the other parties who’ve appeared in the case
Response must be verified
If deadline to response is missed, the propounding party can make a motion to deem the admission made and the responding party can lose the case
Responding to RFA (where to send responses/verification/e-format rules/first paragraph rule)
Serve original of the response on the requesting party, and a copy of the response on all other parties who’ve appeared in case
Response must be verfied
pursuant to Code of Civil Procedure, section 2033.210
…upon request by the responding party, the propounding party shall provide the requests for admission in an electronic format to the responding party within three court days of the request
…upon request by the propounding party after receipt of the responses to the requests for admission, the responding party shall provide the responses in an electronic format to the propounding party within 3 court days of the request
*A responding party who has requested and received requests for admission in an electronic format…shall include the text of the request immediately preceding the response
In the first paragraph of the response immediately below the title of the case, there shall appear the identity of the responding party, the set number, and the identity of the requesting party
Demand/Request for Production of Documents (Definition/Land and Vehicles/Max number of Requests/Form or Pleading/Response Deadline)
Any party may demand (request) another party to produce and to permit inspection and copying of docs (medical records etc.) or tangible items (photos, videos) in that party’s possession, custody or control
A party can also request inspection of land/vehicles
There is no limit to the number of demands that can be served on a party
The is no JC form so request is prepared in pleading format
Written response to demand is due 30 days after service of demand, depending on manner of service
Also known as Notice to Produce and Request for Production
Responding to demand/Request for Production of Documents (Written response deadline and relevant extensions/production date/calendaring/doc prep/’contents of written response/contents of production)
30 calendar days to provide written verified response, plus any additional time depending on method of service
Production due date (as opposed to written response to request) must be at least 30 days from service; can be different than date the written response is due
Need to calendar both due dates for both:
Both written response/production of docs can be prepared as one document
Written response: States whether or not the responding party will comply with the demand and, if not, why; also contains objections if relevant
Production Response: Contains the documents themselves; typically combined with the written response
Responding to demand/Request for Production of Documents (Which docs to which party/Paragraph rule/Question Numbering/Document Numbering/Rules for Producing Electronically Stored information)
Copies of docs, photos, etc., are provided to the propounding party along with the original response pleading
In the first paragraph of the response immediately below the title of the case, there shall appear rhe identity of the responding party, the ser number, and the ID of the demanding (propounding) party
Each written response/objection in the response shall bear the same number and be in the same sequence as the corresponding item or category in the demand, but the text of that item or category need not be repeated
Code of Civil Procedure, section 2031.280
Any documents or category of documents produced in response to a demand for inspection, copying, testing, or
sampling shall be identified with the specific request number to which the documents respond
Unless otherwise agreed upon:
If a demand for production does not specify a form/forms for producing a type of electronically stored information, the responding party shall produce the information in the form/forms in which it is ordinarily maintained or in a form that is reasonably usable
A party need not produce the same electronically stored information in more than one form
Deposition (Definition/Who takes it/Who is interviewed/transcript/role in obtaining evidence/how to depose non-party witness/time limit/depo limits)
A deposition is procedure wherein oral or written testimony, under oath, is obtained through direct examination and cross-examination of a party or witness in advance of a trial or hearing and preserved in writing and audio/visual technology.
Deposition is taken before an officer authorized to administer an oath/affirmation, typically a certified shorthand reporter and is then printed in book format, which is called a deposition transcript
Deponent (person whose deposition is taken) is allowed to read the deposition transcript
Depo transcript may be offered at trial
Depo is the only discovery procedure in which evidence is obtained from parties, nonparty witnesses
In order to depose a nonparty witness in deposition, service of a deposition subpoena on the nonparty witness is required
CCP 2025.290 Depo of witness by all counsel, other than the witness’ counsel of record, shall not exceed 7 hours of total testimony
CCP 2025.290(b) Several exceptions to 7 hour rule, including for expert witnesses and complex cases
CCP 2025.610(a) Only ONE deposition can be taken per deponent
Deposition Notice (Depo Timing/Time of Depo/Party Name/Docs/AV/Officer/Nonperson/Service and POS/Nonparty/Scheduling by Assistant)
Oral deposition must be scheduled at least 10 days after service of deposition notice (CCP 2025.270(a))
Deposition notice must contain: (CCP 2025.220)
Address where deposition will take place
Date/time
Name of deponent (w/ address and phone number, if known, as well as whether or not deponent is a party to the action)
If witness is to bring docs, w/ specifications as to what those docs are, including any electronically stored information
Any intention to record the testimony with audio/visual technology
Statement that whomever is conducting deposition has made arrangements to use particular officer/entity to provide services for depo
If deponent is not a person (a corp for example) depo notice shall describe with reasonable particularity the matters on which examination is requested
Original notice and POS are kept by the noticing party and copies are served on all parties whove appeared in action
If deponent is non-party, must serve a depo subpoena as well
If you are noticing party, schedule a court reporter/reserve a conference room
Be sure to ask attorney/paralegal if in-person/remote
If needed, arrange for interpreters prior to depo
Deposition Location (Individual Party, Corp Party, Non-party Corp)
Location of Depo of a natural person, whether or not a party to the action, is at the option of the party giving notice, must be within:
75 miles of deponent’s residence
OR
Within county where the action is pending and within 150 miles of deponent’s residence
Depo of an organization that is a party to the action, is at the option of the party giving notice and must be within:
75 miles of the org’s principle executive/business office in CA
OR
Within county where the action pending and within 150 miles of that office
Depo of an org not a party to action, is at the option of the party giving notice and must be:
75 miles of the org’s principle exec/business office in CA
OR:
If no such office in CA, depo must either take place within county wherein action is pending, or within 75 miles of any executive/business office in CA
Deposition Notice (Response)
If your client’s deposition has been noticed, be sure that your client is notified as soon as possible to make sure they are available – your attorney may do this, or instruct you to contact the client
Remember – not much time!
Send this notice to docketing ASAP – there are deadlines to object and you don’t want to miss the date to appear
Notify noticing party immediately if your client needs an interpreter
Attorney may want to schedule a “pre-deposition” or “depo prep” meeting prior to the deposition date
If documents are requested, need to coordinate
Deposition Transcript
Transcript of depo is prepared by court reporter
Deponent is allowed an opportunity to review and make necessary correction
Has 30 days from court reporter’s notice to make/submit any corrections
All parties must be advised of changes made
The noticing side usually retains original depo transcript
Original depo transcript is usually sent in sealed envelope—DO NOT OPEN ENVELOPE—put in file for relevant matter, in case it goes to trial, where original transcripts are lodged with court
Deposition Subpoena (Definition/Issued by/Types/Type of Service/What is Deponent Served/POS/How are other parties served/Fee Rates/Deadline for Fee Payment)
A subpoena is an order issued under authority of the court to compel attendance of a non-party witness at a judicial proceeding—such as a deposition
Issued/signed by attorney
3 types: Deposition Subpoena - Personal Appearance Only; Deposition Subpoena - Business Records Only; Deposition Subpoena - Personal Appearance and Production of Docs
Subpoena only is served to intended non-party deponent, process server take care of POS
Subpoena cannot be sub-served
Notice of depo WITH a copy of the subpoena is served on all parties who have appeared in the action
Witness fees are $35 per day plus $.20 per mile (roundtrip) from deponents residence
As governed by Government Code section 68093
Fees provided either at time of service or at depo, send check with your attorney
Fee must be paid before depo if witness so requests
Deposition Subpoena for Personal Appearance (What form/definition/service/service deadline/originals/what to serve)
Mandatory JC form SUBP-015
For when non-party witnesses’ appearance is required to personally testify, but no docs are required
Must be personally served on witness, not mailed or sub-served
Must be served in sufficient time before depo date (min. 10 days prior to depo)
Originals are kept by noticing party
Deposition Subpoena for personal appearance and production of documents and things (Form/Definition/Who to serve and method of service/when to serve/who gets originals)
Mandatory JC form SUBP-020
For when non-party witness’s appearance is required to personally testify and produce docs
Must be personally served on witness
Originals kept by noticing parties
Notice of depo w/ copy of the subpoena must be served on all parties to the action at least 10 days prior
Deposition subpoena for production of business records (Definition/How to Indicate Which Record You Want/Who gets originals/Notice or not Notice of Depo/Who get Served/Deadline for ServiceWhat must be produced)
Mandatory JC Form SUBP-010
Used when business record of the non-party are needed
Must designate the records to be produced in item 3 or attachment 3
Originals kept by noticing party
Notice of depo NOT REQUIRED
But copy of subpoena must be served on all parties to the action at least 10 days prior to production date
Non-party witness is required to produce original or copy of the documents requested to a “professional photocopier,” which is usually designated by the requesting party on the form
Many qualified copy services or process serve firms will prepare and serve the subpoena, give notice, obtain records, advance appropriate fees, and provide copies to all parties who request them
Service of Deposition Subpoena for Production of Business Records (Who to Serve/Witness Fee Payment/When to pay fees/Time for Production/Reasonable costs/Itemized Statement)
Personally serve custodian of record: Authorized rep of company
Non-party witnesses entitled to ‘reasonable costs’ incurred in furnishing records
Payment of fees not required at moment of service, but can also pay at time of service even if not requested
Witness may demand fees at time of delivery or at any time prior to production
Time—production date must not be earlier than 20 days after issuance of the subpoena, or 15 days after service of subpoena, whichever is later
Some reaonsable costs include:
10 cents oer page, 20 cents oer page for copying from microfilm, actual costs for oversized docs
Reasonable clerical costs incurred in locating and making records available—billed at a max rate of $24/hour per person
Actual Postage charges: and actual cost of retrieval and return of records held offsite
Witness must submit an itemized statement to requesting party
Subpoena for Production of Documents: Consumer Records (What is it/What are Consumer Records/Who to Serve/Deadlines)
Mandatory JC form SUBP-025
If personal records are sought, party must be notified with a Notice to Consumer
Personal records include medical records, school records, employment records, insurance records, bank statements
Notice to consumer must be served on consumer or, if a party, their attorney of record:
Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by section 1013 if service is by mail
At least 5 days prior to service upon the custodian of the records, plus the additional time provided by section 1013 if service is by mail
Serving Officers/Government Employees (Fees/Notice and POS/Actual Service)
If cop or gov employee
Witness fee is $275, must be provided when subpoena is served
If amount of time taken for depo is more than a day’s salary, noticing party will be billed by the public entity of the witness
A notice of deposition with a copy of the appropriate subpoena must be served on all parties to the action at least 10 days prior to the depo
Service
If peace officer, may be served by delivering subpoena either to the person or by delivering two copies to their immediate superior at the public entity by which he/she is employed or an agent designated by that immediate superior to receive that service
Any other state employee can be served the same way
Demand for Physical Examination (Definition/Timing/Depo Notice Contents/Rules for Exam/Who to Serve/Response/After Exam)
Any defendant may demand one physical exam of a plaintiff who is seeking recovery for personal injuries
Scheduled for a date at least 30 days after service of the demand
Shall specify the time, place, manner, conditions, scope and nature of exam, and ID and specialty, if any, of the physician who will perform the exam
Exam must not include any diagnostic test or procedure that is painful, protracted or intrusive
Exam conducted at a location within 75 miles of the residence of the examinee
Serve a copy of the demand on the plaintiff and on all other parties who have appeared in the action
Code of civil procedure section 2032.220
Within 20 days after service of demand, plaintiff must respond in writing stating either:
Will comply with demand as stated; will comply with demand modified by plaintiff; will refuse, for reasons specified
Once exam has been completed, examined party can request a copy of physicians written report from noticing party
Once requested, noticing party must deliver copy of report within 30 days after service of the demand, or within 15 days of trial, whichever is earlier
Response for Request/Demand for Physical Examination (Before and, if applicable After Exam)
Within 20 days after service of demand, plaintiff must respond in writing stating either:
Will comply with demand as stated; will comply with demand modified by plaintiff; will refuse, for reasons specified
Once exam has been completed, examined party can request a copy of physicians written report from noticing party
Once requested, noticing party must deliver copy of report within 30 days after service of the demand, or within 15 days of trial, whichever is earlier
Demand/Order for Mental Examination
Must obtain leave of court, by motion
Motion shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person/persons who will perform the exam
Shall be accompanied by a meet and confer declaration under section 2016.040
Responding to Interrogatories (Where docs go/Format of Responses)
Original response is sent to the responding party
Copies of the response is sent to all other parties who have appeared in the action
Keep a copy in the office file with the original POS
Responses prepared in pleading format
Responses numbered consecutively pursuant to question (response to quesiton 3.1 is response 3.1)
In the first paragraph of the response immediately below the title of the case, there shall appear the identity of the responding party, the set number, and the identity of the demanding (propounding party)
