Discovery

Question 1

Scope of Discovery

Answer 1

• May inquire into all non-privileged information relevant to pleaded issues (claim or defense) and reasonably calculated to lead to discovery of admissible evidence
• **CA: relevant to general “subject matter” of litigation (broader than fed)

Question 2

Scope: Work Product (limitation)

Answer 2

• documents or other intangibles
• prepared in anticipation of litigation
• by or for a party

Note:

1. ordinary (no mental impression) discoverable if:
   
   • substantial need; AND
   • unable to obtain info without substantial hardship
     * **CA: ordinary are called qualified or conditional: standard = unfair prejudice and injustice
2. mental impressions, theories, opinions, conclusions, and strategies have ABSOLUTE protection (unless an exception applies, e.g. malpractice, fee dispute)

Question 3

Automatic Disclosure

***CA: not automatic disclosure

Answer 3

• Initial (core info)
  
  • CA: case questionnaire if < 25K
• Experts
  
  • CA: can be deposed without court order
  • Section 2034 Demand for simultaneous release of experts:
    
    • names, addresses, discoverable reports, statement of qualifications, narrative statement of general substance of intended testimony
• Pre-Trial (anything relevant)
  
  • CA: rules designed to make litigation fair, with basic issues and facts disclosed to the fullest extent possible
    
    • rules are construed liberally, in favor of disclosure
    • only strong public policies weigh against disclosure (e.g. privileges, confidentiality)
    • disclosure is a matter of right unless statutory or public policy considerations prohibit it

Question 4

Discovery Tools: non-party

Answer 4

Non-party deposition: fed allows each side 10 (7 hour limit); within 100 miles of residence or business

• **CA: in unlimited cases; no limit on length or number, within 75 miles of residence
  
  • in limited cases, only 1 deposition per side per non-party

Question 5

Discovery Tools: party: interrogatories

Answer 5

Interrogatories (not to exceed 25, including subparts)
***CA: 35 specially prepared (RULE OF 35) and unlimited form interrogatories developed by judicial council
-but if limited case, only 1 deposition per party, and limit is 35 of all types of discovery
must seek updates of rogs

Question 6

Discovery Tools: party: others

Answer 6

• request to produce
  
  • automatic–to disclose all documents to support its claim or defenses
  • **CA: MUST request - are made available for inspection and copying only (NO automatic updates)
• physical or mental exam
  
  • fed: need court order on showing of cause
  • **CA: physical–no court order necessary unless P refuses

request for admission

• responding party must answer (Rule 36) or the matter is deemed admitted (so burden is on responding party)
• **CA: burden on requesting party to file a motion for court order that the matter be deemed admitted

Question 7

Discovery: Protective Order

Answer 7

-motion to protect party from annoyance, embarrassment, oppression, undue burden, and expense

• **CA: requests suspend deposition if conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party
• CA constitution states all people have inalienable right to privacy (higher standard than fed) and protects against unwarranted compelled disclosure of certain private information (but it is not absolute, if compelling state interest that cannot be more narrowly achieved)

Question 8

Sanctions

Answer 8

Policy: balance need to control improper litigation tactics against the need to avoid chilling vigorous advocacy

Question 9

Sanctions against party

Answer 9

Total failure to comply with discovery order–court may use any of the following:

• establishment order–establishes facts as true
• strike pleadings of disobedient party
• disallow evidence
• default judgment
• dismiss case if bad faith
• expenses and atty fees
• contempt (limited to courts where deposition taken)

Partial failure to comply–same, but no contempt

Question 10

Sanctions against non-party

Answer 10

Contempt

Question 11

Sanctions against atty

Answer 11

liable for expense if counseled a bad act

***CA: sanctions are not designed to be punitive, but to promote compliance with statutory standards of conduct. Not used as punishment in fed sanctions.

Question 12

Pre-Trial Conference

Answer 12

-to promote settlement; narrow issues

***CA: discovered documents are no longer automatically filed with the court. They are filed only when the judge must review them.