California Procedures: Chapter 5...

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California Procedures: Chapter 5

Introduction

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Chapter 5:

Discovery

First Read: • Companion Ch. 11-17

• LBTN Ch. 5 Introduction This chapter discusses the process by which the parties gather evidence to support their case, disprove the opposing party’s case, and tie down the opposing party’s story. Discovery enables the parties to obtain the evidence necessary to evaluate their case, possibly reaching a resolution or settlement


before trial, or, in the alternative, to present their best possible case and their best defense at trial, without any surprises. The paralegal needs to understand:

• the scope of discovery • the purpose of a discovery plan and how to draft and utilize it • the rules affecting propounding and responding to discovery in general • the various discovery tools and the rules for formatting, filing and serving requests and responses • rules and procedure for compelling responses and further responses


Lecture Notes Pt 1

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Scope of Discovery Discovery Act (C.C.P. § 2017.010, et seq.) defines scope of discovery: “any matter, not privileged, that is relevant to the subject matter of the action or a motion made in the action, that is admissible or is reasonably calculated to lead to the discovery of admissible evidence”. Privileged information, even if relevant, is protected from discovery, so long as privilege timely asserted. Privileged info includes communications intended, by virtue of special relationship, to be confidential, e.g., attorney/client, husband/wife, physician/patient, clergyman/penitent. Important privilege = attorney work product privilege: absolute privilege against discovery of attorney’s mental processes, e.g., impressions, conclusions, opinions, and legal theories; qualified privilege against discovery of attorney’s general written work product, e.g., witness statement, mock-up of scene of the accident.


Relevance: depends upon what is at-issue in the case, which is defined by the pleadings. Information sought does not have to be admissible evidence; need only lead to the discovery of admissible evidence. Thus, hearsay evidence may be discoverable. Discovery Plan Road map for where you are and where you want to go, i.e., in light of what you need to prove, what do you want to obtain from the other side, and how do you obtain it. Ensure that essential elements of each cause of action are met (or disproved); identify facts and theories upon which the opposition will rely; learn attitudes, opinions, and views of the opposition regarding the facts of the case; serves as blueprint for the entire discovery process. Format is matter of personal style, but goal is to:

• Seek documents as early as possible so that they are not lost or destroyed.

• Move from broad information requests to specific information requests. • Consider the advantages and disadvantages of each discovery tool. • Coordinate different discovery tools, e.g., interrogatories and demands

for production; depositions and document demands; requests for admission and rogs.

Discovery Rules in General Plaintiff can’t serve discovery on defendant until 10 days after defendant served with summons and complaint or 10 days after defendant appears in action (whichever occurs first); defendant may start propounding discovery immediately upon being served with complaint. Absent agreement of parties or court order, non-expert discovery must be completed by “discovery cut-off date” (on or before 30th day prior to initial trial date), and motions re discovery must be heard on or before 15th day prior to initial trial date. Continuing trial date does not extend discovery cut-off date. Parties may agree or court order can extend it. A depo is “completed” on the day it begins. Written discovery is “completed” on the day the responses are due.


Depositions of expert witnesses must be taken on or before 15th day prior to initial trial date, and motions re discovery relating to expert witnesses must be heard on or before 10th day prior to initial trial date. Except in personal injury cases, physical and mental examinations of party require court order; inquiry into defendant’s financial condition only permitted when plaintiff seeks punitive damages and upon court finding probability plaintiff will prevail. Discovery requests are not filed with court; only served on parties. Only filed if dispute arises, e.g., motion to compel. Propounding party keeps original and serves copy. Responses to Discovery in General Responses to written discovery demands (interrogatories, requests for admission, and inspection demands) due within 30 days of service. C.C.P. § 1013 extends the time to respond if discovery served by mail (5 days), fax or overnight mail (2 court days). Responses must be signed by attorney. Unless response contains only objections, also must be verified by client. If a signed verification is not available when the responses are due, a party might serve its response without the verification. However, the responses are not deemed served until the verification is served; if the verification is served after the response due date, the responses are untimely. Objections not timely asserted are waived. Typical objections: calls for privileged or confidential info, exceeds scope of discovery, burdensome and oppressive, violates format requirements (e.g., contains subparts), exceeds 35 without declaration for additional discovery. Discovery responses may be used at trial against responding party. Discovery responses are not filed with court; only served on parties. Responding party serves original and keeps copy. Protective order: Party may ask court to “limit the scope of discovery on the ground that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (C.C.P. §2017.020) May seek to prevent


inquiries into particular subject matter or use of particular discovery device to obtain info. Discovery abuses: many types, including improper use of discovery method, refusing to respond, disobeying court order, evasive response, unsuccessfully making or opposing motion to compel without substantial justification, etc. Five types of discovery sanctions: monetary, issue, evidence, terminating, contempt. Discovery Methods Depositions - oral “question and answer” session under oath (commonly referred to as “depo”); deposing attorney asks questions of witness/deponent; court reporter prepares written transcript of everything said. Only discovery device that may be used to obtain info from non-party. Depo must be taken within 75 miles of the deponent’s residence, or (2) in the county where the action is pending and within 150 miles of the deponent’s residence. If the party deponent is an organization, mileage is measured from the organization’s principal executive or business office. With several exceptions, the total testimony time (excluding questioning by the witness' counsel) is limited to seven (7) hours. Exceptions include but are not limited to court order, stipulation by the parties, expert depositions, etc. Objection to notice of depo must be made at least 3 calendar days prior to the depo or is waived. Parties are compelled to attend their depo by service of notice of depo stating date, time, place of deposition, and, if applicable, a description of documents to produce documents at depo. Non-parties (but not experts) must be personally served with proper Deposition Subpoena. Three different Judicial Council Deposition Subpoena forms for mandatory use depending on type of depo: appearance only; appearance and production of documents; production only. If production of personal records of consumer is sought, many more steps involved. Personal records” are records pertaining to a consumer which are maintained by a witness listed in C.C.P. § 1985.3(1). Consumer = an individual, partnership of five or fewer persons, trust or association whose personal records are being sought from a C.C.P. § 1985.3(1) witness. C.C.P. § 1985.3(1) witness = one who would have personal records of a consumer (e.g., doctor, attorney, bank, insurance company, hospital, school, loan officer, public or private school, etc.)


Consumer must be notified in advance and given opportunity to object - very strict timing rules in this area for giving notice to consumer, for serving witness, and for timing of depo itself. The deposition must be scheduled at least 20 days after the Deposition Subpoena is issued; the Notice to Consumer must be served on the plaintiff at least 5 days before the witness is served with the Deposition Subpoena; the Deposition Subpoena to be served a sufficient time in advance of the deposition to allow the deponent a reasonable opportunity to locate and produce the documents.


Lecture Notes Pt 2

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Interrogatories - written questions to party. In unlimited civil cases, maximum of 35 special rogs unless good cause exists to propound more (requires Declaration for Additional Discovery); any number of form interrogatories allowed. (Different rule in limited civil cases, where party is limited to 35 written discovery requests, including form rogs.) Contention interrogatories seek information about bases for opposing party’s allegations or defenses, i.e., what they contend supports their case. Fact interrogatories seek simple, factual information, e.g., identity of witnesses, identity of employees on duty during the incident, dates, times, places, statements made at the scene. Document interrogatories seek identification of documents (so that they can later be sought via request for production of documents). Response to any or all may be: answer, object, object and answer, seek protective order.


Requests for Admission - written requests to a party to admit or deny truth of each listed statement of fact, opinion relating to fact, or application of law to fact, or to admit or deny genuineness of documents attached to request (commonly referred to as “RFA’s”). In unlimited civil cases, maximum of 35 RFA’s unless good cause exists to propound more. (Different rule in limited civil cases.) RFA’s help determine what facts opposing party will concede or contest at trial and basis for doing so. Might eliminate issues altogether if admitted, and may be basis for dispositive motion (motion for summary judgment or motion for summary adjudication). Response must do one of following for each request: admit any part that is true, either exactly stated by propounding party or as reasonably and clearly qualified by responding party; deny any part that is untrue; specify any part about which responding party lacks sufficient information or knowledge to respond, and state that a reasonable inquiry concerning the matter has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter; or object to the request.

Inspection Demands - written demand to a party to inspect, copy, test, or sample specified documents, tangible things, land or other property, and electronically stored information (“ESI”). No limit on number that may be propounded in unlimited civil cases; different rule in limited civil cases. Written request must specify reasonable time and place for inspection. Both requesting and responding party must be sure to calendar that date. If any related activity is to be done (e.g., any sampling or testing), manner and method must be specified. If any sampling or testing will permanently alter or destroy item involved (e.g., in a case where clothing is being tested for blood samples, the fabric might have to be cut), notice must so state. Request must specifically describe individual items or particular categories of items, or both, so responding party knows what to produce. Where ESI is sought, the form or forms in which it is to be produced may be specified in the demand. Written response (due 30 days after service) must do one of following for each request: agree to comply; state inability to comply; or object. Special rules for objecting to demand relating to ESI, e.g., re demanded format, and re grounds that ESI not reasonably accessible. Except for ESI (below) for production itself, responding party need not provide evidence in any condition other than normally kept, but documents should be sorted into


categories requested. For ESI, if format not specified in demand, may be produced in form in which ordinarily maintained or reasonably usable.

Physical and mental exams - independent medical examinations (“IME’s” or “defense medical exams”) = medical examinations of a party, usually plaintiff or cross-complainant, claiming physical or mental injury. When plaintiff has put their mental or physical condition at-issue by claiming damages for personal injury, each defendant has right, without court order, to demand one IME to evaluate alleged injury and prognosis, but exam can’t include any diagnostic test or procedure that is painful, protracted, or intrusive, and must be conducted within 75 miles from the examinee's residence. Requires at least 30 days’ notice. Mental exam always requires court order. Written response (due within 20 days) must indicate that examinee will either: comply; comply as specifically modified by examinee; or refuse, for specified reasons, to submit to the demanded physical examination. Demand for exchange of expert witness lists - written demand that parties simultaneously exchange lists of experts, containing names, addresses, and phone numbers of experts, qualifications, and subjects on which they’ll testify. May also demand production of all reports and writings made by expert to form opinion. May be made no later than 10th day after initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date. Code section allowing demand (C.C.P. §2034.210) must be stated in demand. Must state date for exchange (50 days before initial trial date, or 20 days after service of demand, whichever is closer to trial date). Written exchange must do one of the following: list name and address of any person whose expert opinion that party expects to offer in evidence at trial, or provide statement that they don’t presently intend to offer expert testimony.

For every expert who is a party to the action or is employed by a party to the action, or has been retained by a party in anticipation of the litigation or in preparation for trial, the following must be included: brief narrative statement of qualifications; brief narrative statement of general substance of testimony; representation that expert has agreed to testify at trial; representation that expert will be sufficiently familiar with pending action to submit to meaningful oral deposition concerning specific testimony; statement of the expert's hourly and daily fee for providing deposition testimony and for consulting with retaining attorney. If requested, all discoverable reports and writings must be exchanged.


Expert depositions: Experts must be made available for deposition; no subpoena required -- notice of taking deposition suffices. Expert’s fee for providing testimony must be paid by deposing party. Expert depo cut-off = 15 days prior to trial.

Within 20 days after initial exchange, any party who participated in exchange may submit supplemental list of experts to opine on subject not covered in party’s initial exchange, but was covered by an adverse party’s exchange. Compelling Further Responses: Generally, false, evasive, incomplete, or unsatisfactory answers may be grounds for motion to compel further responses and sanctions, which must be brought within 45 days after verified responses are served, or objections are waived. Motion must be preceded by reasonable and good faith attempt to resolve informally, and motion requires “meet and confer” declaration that parties did so or at least moving party attempted to do so. Motion must include separate statement setting forth discovery request, response, and reason why further response should be ordered. Some courts may require an informal discovery conference prior to bringing the motion to compel. NOTE: motion to compel further responses is not the same as motion to compel responses (where no response received). The latter has no time limit, does not require a meet and confer declaration or a separate statement.


Application

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Application #1 You are employed by attorney Sara Livingston, who has just handed you the Smith v. Jones file with a memo. The memo explains that Ms. Livingston, who represents Janet Smith, wants to take the deposition of a witness to the accident who took photos at the scene. She needs you to prepare all required documents, including a notice to consumer, if required. What documents need to be prepared? Is a notice to consumer required? If so, why? If not, why not? Application #2 Assume your office represents a party claiming damages caused by a nearby manufacturing company dumping contaminants into the ground water. The attorney gives you a typed list of documents to get from the local water


company, which are intended to show the contents of the water at regular intervals over the past 15 years. By what legal means can you require the water company to produce the documents, i.e., what document would you use? By what means will you serve it? Would any consumer notices be required? Application #3 A second year law student, Dennis, has just been hired on a part-time basis. Dennis asks you for the Smith v. Jones file. You’re in the middle of preparing deposition notices for that case, so you ask him what he needs. Dennis tells you that he was told to get copies of plaintiff’s medical records from General Hospital. Dennis, who is currently #1 in his second year law school class, plans to simply call the records department at the hospital, tell them who he is, and demand them. He says he only needs the file for a couple of minutes so he can find the phone number for General Hospital. What do you tell Dennis?


Application Answers

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Answer to Application #1 The required documents are: (1) a notice of taking deposition, informing the parties of the date, time, and place of the deposition, and the telephone number of the deponent, and (2) Judicial Council form “Deposition Subpoena for Personal Appearance and Production of Documents and Things,” Form SUBP-020. A Notice to Consumer is not required, because the photos are not “personal records” of a “consumer” and the witness is not a C.C.P. § 1985.3(1) witness. Answer to Application #2 Written records of a non-party may be obtained by personally serving the appropriate Deposition Subpoena form. Here, since the attorney wants the records only, and does not want to depose anyone about the records, the


appropriate form is “Deposition Subpoena for Production of Business Records” (Mandatory Judicial Council Form No. SUBP-010). No consumer notice is required - documents relating to the contents of the water are not personal records of a consumer. Answer to Application #3 That it doesn’t quite work that way! Written records of a non-party may be obtained by personally serving the appropriate Deposition Subpoena form. Here, since the attorney wants the records only, and does not want to depose anyone about the records, the appropriate form is “Deposition Subpoena for Production of Business Records” (Mandatory Judicial Council Form No. SUBP-010). In addition, since (1) the person to whom the records relate is a “Consumer,” and (2) the records sought are “personal records,” Dennis must comply with C.C.P. § 1985.3. That section requires: (1) the Consumer to be served with a “Notice to Consumer” (Mandatory Judicial Council Form No. SUBP-025) advising that the records are being sought and that the Consumer has the right to object to their production, and (2) the witness to be served with proof that the Consumer was served with the Notice to Consumer. The deposition must be scheduled at least 20 days after the Deposition Subpoena is issued; the Notice to Consumer must be served on the plaintiff at least 5 days before the witness is served with the Deposition Subpoena; the Deposition Subpoena to be served a sufficient time in advance of the deposition to allow the deponent a reasonable opportunity to locate and produce the documents.


Chapter Review

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1. If you serve a set of interrogatories by mail, how many days from the service date can the responding party wait to mail their responses without waiving any objections?

2. How many Form Interrogatories is a party allowed to propound? 3. When serving written discovery requests, does the propounding party

keep the original and serve a copy, or keep a copy and serve the original? 4. Is it permissible to propound rogs before the discovery cut-off date, and

have the answers be due after the discovery cut-off date? 5. When is a verification not required on discovery responses?


6. If you are preparing an inspection demand, seeking the production of a tangible thing, what information might you have to include in the demand?

7. What two dates do you need to calendar as regards an inspection

demand?


Chapter Review Answers

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1. 35 days (30 days response time plus extra five days for service by mail). 2. Depends on whether it’s an unlimited or limited civil case. If it’s an

unlimited civil case, there is no restriction on the number of form interrogatories. If it’s a limited civil case, it depends on how many other written discovery requests have been propounded, as each party is limited to a total of 35 written discovery requests, which includes form interrogatories.

3. The propounding party keeps the original, and serves a copy of all written

discovery. 4. No. Discovery must be completed by the discovery cut-off date, and

written discovery is deemed completed on the day the response is due.


5. A verification is only required when there are answers. Thus, if the response contains only objections, there is nothing to verify.

6. Depending upon the reason for the demand, it might have to specify any

related activity to be done, e.g., any sampling or testing, and whether that activity will permanently alter or destroy the item involved.

7. You must calendar the due date for the written response and the date,

time and place for the production itself.


Chapter Quiz

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Click here for the Chapter Quiz. This is the tool you will use to evaluate whether you are ready to proceed to the next Chapter.

California Procedures: Chapter 5...

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