Discovery

Question 1

Discovery (Definition/Purpose/What Happens to Docs/Methods/Forms/Response Verification)

Answer 1

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

Question 2

Methods of Discovery

Answer 2

interrogatories
Demand (or Request) for Production of Documents/Things
Request for Admission
Depositions
Subpoenas
Demand for Physical Examination
Exchange of Expert Witness Testimony

Question 3

Cutoff Date/Completion for Discovery (Deadline/continuation/extensions/arbitration/calendaring)

Answer 3

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!!!

Question 4

Discovery: Types of Service

Answer 4

Personal Service
Mail service
Overnight delivery/express mail Service
Electronic/email/fax service

Question 5

Discovery: Service Response Deadlines

Answer 5

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

Question 6

Proof of Service

Answer 6

Must be attached to last page of document being served, proves doc was served in correct manner

Question 7

What happens to discovery docs

Answer 7

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

Question 8

After You serve Your Documents (Calendaring/If no response/timetable)

Answer 8

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

Question 9

Response v. Answer

Answer 9

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

Question 10

Responding to Discovery: Extensions

Answer 10

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

Question 11

Sending Discovery Requests to Clients

Answer 11

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

Question 12

Verification (What is it/Who Signs for Individual/Who Signs for Corp/Rules/Requirements)

Answer 12

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

Question 13

Response to Discovery (Original Docs and Copies/POS)

Answer 13

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)

Question 14

Interrogatories (Definition and Deadline)

Answer 14

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

Question 15

Types of interrogatories

Answer 15

Form
Special
Supplemental

Question 16

Form Interrogatories

Answer 16

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)

Question 17

Special interrogatories (definition/Number of Questions/Subparts/Format/Numbering/Contention/Question Sets)

Answer 17

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

Question 18

Supplemental interrogatories (Definition/Purpose/Max Amount)

Answer 18

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

Question 19

Responding to interrogatories (Calendaring/Penalty for Missed Deadline/Role of Assistant/Objections)

Answer 19

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

Question 20

Propounding Interrogatories (Things to Remember)

Answer 20

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)

Question 21

Request for admission (Definition/Purpose/Who does what/Response Deadline)

Answer 21

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

Question 22

Request for Admission (types)

Answer 22

Request for admission of fact

request for admission re: Genuineness of Document

Question 23

Request for Admission of Fact (How Many Statements/Form or Pleading/Paragraph Rule/Numbering/Instructions/Font)

Answer 23

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

Question 24

Request for admission re: genuineness of document (How many/what must be included/Requirements on Requesting Party)

Answer 24

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

Question 25

Responding to RFA (Deadlines/Extensions/Rule for Doc/Service/Verification/What happens if you miss deadline)

Answer 25

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

Question 26

Responding to RFA (where to send responses/verification/e-format rules/first paragraph rule)

Answer 26

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

Question 27

Demand/Request for Production of Documents (Definition/Land and Vehicles/Max number of Requests/Form or Pleading/Response Deadline)

Answer 27

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

Question 28

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)

Answer 28

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

Question 29

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)

Answer 29

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

Question 30

Deposition (Definition/Who takes it/Who is interviewed/transcript/role in obtaining evidence/how to depose non-party witness/time limit/depo limits)

Answer 30

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

Question 31

Deposition Notice (Depo Timing/Time of Depo/Party Name/Docs/AV/Officer/Nonperson/Service and POS/Nonparty/Scheduling by Assistant)

Answer 31

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

Question 32

Deposition Location (Individual Party, Corp Party, Non-party Corp)

Answer 32

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

Question 33

Deposition Notice (Response)

Answer 33

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

Question 34

Deposition Transcript

Answer 34

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

Question 35

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)

Answer 35

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

Question 36

Deposition Subpoena for Personal Appearance (What form/definition/service/service deadline/originals/what to serve)

Answer 36

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

Question 37

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)

Answer 37

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

Question 38

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)

Answer 38

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

Question 39

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)

Answer 39

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

Question 40

Subpoena for Production of Documents: Consumer Records (What is it/What are Consumer Records/Who to Serve/Deadlines)

Answer 40

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

Question 40

Serving Officers/Government Employees (Fees/Notice and POS/Actual Service)

Answer 40

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

Question 41

Demand for Physical Examination (Definition/Timing/Depo Notice Contents/Rules for Exam/Who to Serve/Response/After Exam)

Answer 41

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

Question 42

Response for Request/Demand for Physical Examination (Before and, if applicable After Exam)

Answer 42

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

Question 43

Demand/Order for Mental Examination

Answer 43

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

Question 44

Responding to Interrogatories (Where docs go/Format of Responses)

Answer 44

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)