Civil Procedure


The Discovery Process Serves the Purposes of:

1. Expediting the litigation by:

a) Identifying and narrowing issues.

b) Uncovering facts

c) Preserving evidence for trial.

d) Expediting trial preparation by committing parties or witnesses to particular versions of facts.


2. Encouraging Settlement by:

a) Educating the parties as to the strengths and weaknesses of their respective cases

b) Exposing doubtful claims or defenses.

c) Providing information for informed case evaluation.

Scope of Discovery

Broader Than What Would Be Relevant Evidence at Trial

Under FRCP 26, a party is entitled to discover not only material which is relevant and admissible at trial, but also to discover information which "appears reasonably calculated to lead to the discovery of admissible evidence."   Discovery is permitted of acts and events transpiring subsequent to those giving rise to the cause of action where there is a possibility that the information sought may be relevant to the subject matter of the pending action rather than to limit it to the issues involved in the particular case.  Relevance is not to be measured by the precise issues framed by the pleadings but by the general relevance to the subject matter.

Information Protected From Discovery

Work Product Privilege

The "work-product" of a lawyer has a qualified immunity from discovery.  I.e., it is discoverable only on a substantial showing of necessity or justification.  (Wright, § 82;  Hickman v. Taylor, 329 U.S. 495 (1947).)

Cal.Code.Civ.Proc. § 2018(b) creates a qualified privilege for attorney's work product by providing that such information is not discoverable unless the court determines that denial of discovery will unfairly prejudice the trial preparation of the party seeking it or will result in injustice.

There is an absolute privilege for writings that reflect the attorney's impressions, conclusions, opinions, legal research, or theories.  Such information is not discoverable under any circumstances. (Cal.Code.Civ.Proc. § 2018(c).)

California's work product privilege provides for:

1.  Limited discovery only upon a showing of "substantial need and inability without undue hardship to obtain substantial equivalent.

2.  Absolute protection of writings reflecting attorney's impressions, conclusions, opinions or legal research or theories.

Protective Orders (FRCP 26(c).)

A protective order may be sought by any person against whom discovery is sought, party or nonparty.

Burden is on person seeking protective order to show that it is necessary "to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.

Types of protective orders available:

"That discovery not be had."  (Rule 26(c)(1).)

"That the discovery may be had only on specified terms & conditions, including a designation of the time or place."  (Rule 26(c)(2).)

"That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters."  (Rule 26(c)(4).)

"That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way."  (Rule 26(c)(7).)

Expert Witnesses

When an expert is an eyewitness to material events in a case, or a party to an action, as opposed to being hired in anticipation of litigation, no work-product protection exists.  E.g., a doctor who provides emergency treatment to an accident victim may be deposed as to the condition of the patient.

Experts hired to assist in preparation for trial are treated differently depending on whether they will be called to testify at trial.

(1)  A party may learn by interrogatories the names of the experts his opponent expects to call, the subject matter on which the expert is expected to testify, and the substance of the facts and opinions to which the expert will testify.

(2)  Facts or opinions may be obtained from an expert who has been retained in anticipation of litigation but who is not expected to testify only "upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means."  (Friedenthal § 7.6; Wright § 81)

In addition to testifying and non testifying experts, courts have also identified a third category, informally consulted but not retained.  Neither the opinions or identity of an informally consulted but unretained expert are discoverable without a showing of special circumstances.  This is akin to a work-product type privilege.

Particular Discovery Devices and Methods

Depositions (FRCP 30; Cal.Code.Civ.Proc. §§ 2019 & 2025)

Definition:  Self-executing procedure for examination under oath of an expected party or witness for discovery or as evidence.

Advantages:  Permits (1) evaluation of demeanor and potential courtroom impact of deponent; (2) probing follow-up of responses; (3) deponent spontaneity; (4) minimization of role of opposing counsel; (5) discovery on 10 days notice.

Testimony may be used (1) by any party against deponent to impeach or contradict; as substantive evidence if deponent is unavailable or exceptional circumstances exist or if another party has already introduced a portion of the deposition.  (2) By adverse party for any purpose against party or related witness. (FRCP 32(a).)

Disadvantages:   Expensive, time consuming, elicits only facts within deponent's personal knowledge, inquiry into deponent's legal contentions not permitted, may perpetuate damaging testimony.

Against Whom Available:  Any person.  (Not limited to parties)

Timing and Frequency of Use by Proponent:  If action is pending, any time after service of summons or appearance of defendant.  Unlimited except subject to protective order if court determines that burden, expense, or intrusiveness clearly outweighs likelihood that information sought will lead to discovery of admissible evidence. (Cal.Code.Civ.Proc. § 2017(c).)  If perpetuation of testimony is sought: prior to bringing action, prior to taking appeal, and during pendency of appeal.

Proponent's Procedures to Initiate:  Serve 10 days written notice to all parties, except those adverse parties in default or not appearing.

Interrogatories (FRCP 33; Cal.Code.Civ.Proc. § 2030)

Definition:  Self-executing procedure for submission of written questions to party to be answered under oath.

Advantages:  (1) Comparatively inexpensive; (2) inquires into all knowledge available to answering party (3) inquires into legal contentions and bases for them; (4) answers (always by party) may be more specific and therefore bind more than general answers at deposition; (5) less complex and expensive to elicit further answers.

Any party other than the responding party may use responses at trial to the extent they are otherwise admissible in evidence.

Disadvantages:  (1) Sometimes less effective than personal confrontation; (2) no opportunity to evaluate demeanor of deponent; (3) preparation of interrogatories in complex cases time consuming and expensive, since must by carefully drafted to be effective; (4) difficult to get a narrative response.

Against Whom Available:  Party only.

Timing & Frequency of Use by Proponent: A defendant may propound interrogatories to a party to the action without leave of court at any time. A plaintiff may propound interrogatories to a party without leave of court at any time that is 10 days after the service of the summons on or appearance of other party.  A party may propound to another party 35 specially prepared interrogatories and any additional number of official form interrogatories.

Proponent's Procedures to Initiate:  Serve interrogatories on all parties.

Opponent's Responses: Answer; answer and object.

Proponent's Remedies for Failure or Refusal:  Seek order compelling answers  or order compelling further responses.

Demands to Inspect or Produce Documents (FRCP 34; Cal.Code.Civ.Proc. § 2031)

A party may make inspection demands on "any other party to the action" to produce and permit the party making the request to inspect and copy, any designated documents.

Requests for Admission (FRCP 36; Cal.Code.Civ.Proc. § 2033)

Self-executing procedure for written request that party admit genuineness of relevant documents or truth of relevant matters.  Rule 36(a) provides that one party may serve upon any other party a written request to admit the truth of certain matters of fact that are in dispute or to admit the genuineness of any relevant document.  The party who receives the request to admit must respond under oath & in timely fashion, admitting or denying each matter for which an admission is requested.  The responding party may also object to a request because improperly phrased (as "vague," "ambiguous", etc.) or because it seeks privileged or protected information.

If a party who receives a request to admit does nothing, the party has admitted the matter in the request.  Rule 36, unlike other discovery devices is self executing. Any matter admitted is conclusively established unless the court permits withdrawal or amendment of the admission.

Advantages:  (1) Disposes of undisputed issues and facilitates motion for summary judgment; (2) failure to admit or deny constitutes an admission; (3) requires admission or denial of facts known or available to answering party; (4) may be used in conjunction with interrogatories; (5) comparatively inexpensive.

Disadvantages:  (1) Does not discover new facts; (2) difficult to get narrative response; (3) difficult to follow-up quickly a response of "unable to admit or deny."

Against Whom Available:  Party only.

Timing and Frequency of Use by Opponent:  Any time after service of summons or appearance of a party.  No party shall request that any other party admit more than 35 matters that do not relate to the genuineness of documents.  Number of requests for admission of the genuineness of documents is not limited except as justice requires to protect from annoyance, embarrassment, etc. 

Proponent's Procedures to Initiate: Serve requests on party requested to admit. 

Opponent's Responses:  Admit; deny; admit, deny and object; state inability to admit or deny.

Proponent's Remedies for Failure or Refusal:  Seek order requiring further answers or that genuineness of documents or truth of matters be admitted  or requiring denying party to pay reasonable expenses incurred in making proof.  Rule 36 provides that requests shall be deemed admitted unless they are denied within the time specified (not less than 20 days) in the request.  If a party serves a denial of the matters in the request to admit and at trial the matter is proved by the party requesting the admission, then FRCP 37(c) provides that the latter may collect from the other party the reasonable expenses incurred in making the proof.

Physical and Mental Examinations (FRCP 35; Cal.Code.Civ.Proc. § 2032)

Procedure by motion for court order, on showing of good cause to obtain mental, or physical examination of a party or controlled person whose condition is in controversy in pending action.

Advantages:  Aids preparation for and conduct of trial as well as settlement by allowing examination of parties & controlled persons whose physical or mental condition is in controversy in an action.

Disadvantages:  Showing of good cause required before court order will issue.

Against Whom Available:  Any party, his agent or person in his custody or legal control whose condition is in issue.

Timing & Frequency of Use by Proponent:  Any time after action brought by making demand on party.

Rule 35 requires that the moving make an affirmative showing that the subject party's mental or physical condition is in controversy and that there is good cause for the examination requested. (Schlagenhauf v. Holder, 379 U.S. 104 (1964).)

Sanctions for Noncompliance (FRCP 37)

Sanctions serve a three-fold purpose.  They insure that a party will not be able to profit from its own failure to comply.  They are specific deterrents which seek to secure compliance with the order at hand.  Courts are free to consider the general deterrent effect their orders may have on the particular case and on other litigation, provided that the party on whom they are imposed is, in some sense, at fault.

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© 2015 by and Craig A. Smith

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