Discovery

Question 1

Are there required disclosures?

Answer 1

No

Question 2

P must get a court order to take discovery from D within….

Answer 2

10 days after D was served with process (within 20 days to take D’s deposition).

Question 3

Discovery tools

Answer 3

1. Depositions
2. Interrogatories
3. Requests to produce (inspection demand)
4. Medical examination
5. Request for Admission

Question 4

Depositions

Answer 4

Same as in federal court as to the basics.

Different from federal: In state court there is no presumptive limit on the number of depositions to be taken in the case (federal court it’s no more than 10 unless court orders or parties agree).

Question 5

Interrogatories

Answer 5

Same as in federal court as to basics, so can only be sent to parties.

There are form interrogatories approved by the Judicial Council.

There is no limit to the number of form interrogatories that can be served on other parties.

Question 6

But what if a party wants to write specific interrogatories?

Answer 6

That’s OK, but they cannot not contain subparts.

Question 7

What is the maximum number of drafted interrogatories allowed in an unlimited civil case?

Answer 7

35 - you can serve more with a declaration supporting the need for more; the responding party can seek a protective order

Question 8

Requests to produce (inspection demand). Like requests to produce in federal court. Re electronically stored info (ESI), specify form desired (hard copy or electronic).

– Is there a statutory limit on how many of these can be served without court permission in an unlimited civil case?

Answer 8

No

Question 9

In federal court, these requests to produce can be used to get information from a non-party if accompanied by a subpoena.

The basic California statute does NOT address using
these to get information from a non-party. But it is possible to get discovery of things from a non-party. How?

Answer 9

You notice the non-party’s deposition and serve the non-party with a subpoena “Duces Tecum”

Question 10

Request for Business Records as opposed to “Duces tecum”

Answer 10

For business records, you can just subpoena them without taking a deposition.

Question 11

Medical examination. Same as in federal court, so you have to get a court order. Except in state court, in one kind of case, D has a right to demand one physical examination of P. What kind of case?

Answer 11

Personal Injury

Question 12

Presense of Attorney in Physical and Mental Exam?

Answer 12

In California, if it is a physical exam, the lawyer for that person has the right to attend the examination. If it is a mental exam, the lawyer can attend only if there is a court order allowing it.

Question 13

Request for admission. Same as in federal practice.

What is the maximum number of requests for admission that can be served on a party in an unlimited civil case?

Answer 13

Same as interrogetories - 35

But there is no limit on the number of requests to admit the genuineness of documents.

Question 14

Discovery in limited civil cases. There are strict limits on use of discovery devices.
– How many depositions can a party take?

Answer 14

1

Question 15

How many interrogatories, inspection demands, and requests for admission can each party propound to another party in a limited civil case?

Answer 15

A combined total of 35

Question 16

In a limited civil case, can the parties ever get additional discovery?

Answer 16

Only with a court order

Question 17

Supplemental discovery – in unlimited cases only

Answer 17

Unlike in federal court, there is no standing duty to supplement discovery responses, as long as the information given was accurate and complete when given.

Instead, the requesting party can propound a “supplemental interrogatory” to elicit later-acquired information bearing on answers previously made.

Also, she can propound a “supplemental demand for inspection,” which demands inspection of later-acquired or later-discovered documents or things.

Question 18

How many times can a party propound a supplemental interrogatory or a supplemental request for production?

Answer 18

Twice before the trial date is set; and once after that

Question 19

Scope of discovery.

Standard:

Answer 19

can discover anything “relevant to the subject matter involved in the pending action.”

Question 20

Privilaged Info Procedure:

Answer 20

As in federal court, when a discovery request would intrude on privileged matter (e.g., confidential communication between attorney and client) or work product, the responding party must object with particularity or risk waiver. Provide the court with a privilege log

Question 21

Privacy

Answer 21

The California Constitution recognizes a right of privacy, which can be claimed to limit discovery. It is not absolute, however.

Question 22

How does a court determine whether to allow discovery?

Answer 22

It balances the need for info against the need for privacy

Question 23

Work product. In federal court, work product can be generated by the party or any representative of a party, not just by attorneys.
– Is the rule the same in California courts?

Answer 23

No - it must be generated by the attorney or her agent

A pro se party (not represented by a lawyer) can generate work product if it would be WP if done by an attorney.

Beyond this, it works basically as in federal court. So a writing that reflects an attorney’s impressions, conclusions, opinions, or legal research is absolutely protected.

Question 24

Expert witnesses.

Answer 24

• Any party may request the simultaneous exchange of expert witness information. Then each party must exchange a list of experts to be called at trial, declare the nature and substance of testimony, and the expert’s qualifications.
• You can also demand reports by the expert. A party may then take her deposition.
• If a party does not exchange this information, the court may exclude its expert from testifying.

Question 25

Generally, can you discover info of consulting experts (who will not testify at trial)?

Answer 25

No

Question 26

Enforcement of discovery rules.

1. Before the case management conference, parties meet to discuss various topics, including discovery and potential problems with production of ESI. In addition, they generally must meet and confer to work out problems before seeking court orders.
2. The court may sanction anyone – including parties and attorneys – who misuses the discovery process. The person to be sanctioned must be given notice and a chance to be heard.

– Sanctions include:

Answer 26

1. monetary sanction (expenses and attorney’s fees incurred by other party);
2. establishment order;
3. refusal to allow party to support its position with evidence at trial;
4. striking pleadings;
5. dismissing P’s case; or
6. entering default judgment against D.

The court will usually start with monetary sanctions and move through the hierarchy as warranted. It has broad discretion in selecting the appropriate sanction.

Question 27

When a party seeks sanctions for discovery abuse, what must it indicate in the motion?

Answer 27

The type of sanction sought

Question 28

protective order to protect against unwarranted annoyance, embarrassment, oppression, burden or expense

Answer 28

Same as Federal Ct

Question 29

A party can object that ESI is not reasonably accessible because of undue burden or expense, but must….

Answer 29

identify the categories of sources that are not accessible.