Discovery

Question 1

Required disclosures

Answer 1

1. CA: no required disclosures

Question 2

Discovery in limited cases

Answer 2

1. strict limits on use of discovery
2. maximum one deposition
3. each party may have a combined total of 35 interrogatories, inspection demands, and requests for admission
4. additional discovery only with court order

Question 3

Discovery tools in unlimite cases – timing

Answer 3

1. plaintiff must get a court order to take discovery from defendant within 10 days after defendant was served with process, or within 20 days after service for depositions
   i. i.e. court order needed to take discovery sooner than 10-20 days

Question 4

Discovery tools in unlimited cases– depositions

Answer 4

1. CA: very few differences from federal court
2. no presumptive limit on the number of depositions to be taken in the case (vs. 10 in FRCP)
3. like FRCP, can be used to obtain documents or information from non-parties
   i. discovery of things from non-parties:
   a. notice non-party’s deposition
   b. serve the non-party with a subpoena duces tecum
   ii. business documents:
   a. parties can obtain business records from anyone
   b. they can be subpoenaed directly (no deposition needed)

Question 5

Discovery tools in unlimited cases– Interrogatories

Answer 5

1. CA: very few differences from federal court
2. form interrogatories:
   i. pro forma interrogatories approved by the Judicial Council
   ii. no limit to the number that can be served
3. drafted interrogatories (specific interrogatories):
   i. party writes their own interrogatories
   ii. drafted interrogatories cannot contain subparts
   iii. maximum 35 drafted interrogatories in unlimited cases (vs. 25 in FRCP)
   iv. exception: parties can exceed 35 if extra interrogatories served with a declaration supporting the need for more
   a. don’t need permission to exceed 35, but must include the declaration
   b. responding party can seek a protective order

Question 6

Discovery tools in unlimited cases– request to produce (inspection demands)

Answer 6

1. must specify the form desired for ESI (ex. electronic, hard copy)
2. like FRCP:
   i. no limit to how many in unlimited cases
   ii. can only be used against parties
   iii. but discovery of things from non-parties is possible (depose + subpoena duces tecum)
   a. notice non-party’s deposition
   b. serve the non-party with a subpoena duces tecum
3. if party wishes to obtain business records from anyone, they can be subpoenaed directly (no deposition needed)
4. a party can object that ESI is not reasonably accessible because of undue burden or expense, but must identify the categories of sources that are not accessible (same as FRCP)

Question 7

Discovery tools in unlimited cases– medical exam

Answer 7

1. requires court order, except in personal injury
2. CA: personal injury defendants have a right to demand one physical exam of plaintiff
3. CA: the lawyer for the person undergoing the exam has a right to attend physical exams, but needs court permission to attend mental exams
4. otherwise, same as FREV

Question 8

Discovery tools in unlimited cases– request for admission

Answer 8

1. almost same as FREV
2. limitations: same number limitations as interrogatories: maximum 35 requests for admission
   i. 35, but more with declaration, opponent can seek protective order
   ii. authentication exception: no limit on requests to admit the genuineness of documents

Question 9

Supplementing discovery

Answer 9

1. in unlimited cases only
2. no duty to supplement discovery responses that were accurate and complete when made
   i. must request supplemental discovery (unlike FRCP)
3. requesting party can:
   i. use supplemental interrogatory to elicit later-acquired info bearing on an earlier response
   ii. use supplemental demand for inspection for inspection of later-acquired or later-discovered documents or things
4. supplemental interrogatory or a supplemental request for production can be propounded:
   i. twice before trial date set, and
   ii. once after trial date set, but before trial

Question 10

Scope of discovery

Answer 10

1. discoverable if relevant, proportional, and reasonably calculated to lead to admissible evidence (same as FRCP)
2. CA: California Constitutional right of privacy can limit discovery
   i. use: the need for information is balanced against the need for privacy
   ii. i.e. discovery cannot be too intrusive
3. privilege and work-product prevent discovery (same as FRCP)
   i. assertion: (same as FRCP)
   a. requires express invocation and detailed description of protected items
   b. requires privilege log
4. CA: work product definition:
   i. work product must be generated by the attorney or their agent (unlike FRCP)
   CA is narrower. FRCP– anything in anticipation of litigation is work product.
   ii. pro se party work is work-product if it would have been work product if done by an attorney

Question 11

Scope of discovery – expert witnesses

Answer 11

1. expert witnesses are not a required disclosure, must be requested
2. parties may request simultaneous exchange of expert witness information
3. if requested, each party must (list, credentials, testimony)
   i. exchange a list of experts to be called at trial
   ii. state the expert’s qualifications
   iii. declare the nature and substance of testimony
4. parties can also demand expert reports and then depose the expert
5. remedy: court may exclude the expert if a party fails to exchange this information
6. generally no ability to discover information from consulting (non-testifying) experts (same as FRCP)

Question 12

Enforcement of discovery rules

Answer 12

1. before case management conference, parties meet to discuss various topics, including discovery and potential problems with production of ESI
2. generally must meet and confer to work out problems before seeking court orders

Question 13

Enforcement of discovery rules – protective orders

Answer 13

1. same as FRCP: may seek protective order to prevent undue annoyance, embarrassment, oppression, burden, or expense

Question 14

Enforcement of discovery rules – sanctions

Answer 14

1. court may sanction anyone (parties, attorneys, etc.) for misuse of discovery process
2. person to be sanctioned must be given notice and a chance to be heard
3. sanctions include: (same as federal merits sanctions + monetary sanctions)
   i. monetary sanction (opponent’s expenses and attorney’s fees)
   ii. establishment order (establishes facts as true)
   iii. refusal evidence at trial
   iv. striking pleadings
   v. dismissing plaintiff’s case; or
   vi. entering default judgment against defendant
4. when a party motions for sanctions, it must indicate the sanctions sought
5. court has broad discretion, court usually starts with monetary sanctions and moves through the hierarchy if party would not be made whole