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PART IIIDiscovery

CHAPTER 8Overview of the Discovery Process

KEY POINTS

• California civil discovery is primarily regulatedby the Civil Discovery Act of 1986, CCP §§2016–2036.

• California discovery methods include depositions,interrogatories, requests for admissions, requests

to produce, medical examinations, and requestsfor exchange of expert witness information.

• Except for the disclosure requirements, Californiacivil discovery practice is similar to federal dis-covery practice.

THE NATURE OF DISCOVERY

The discovery rules in California have been patterned afterthe rules in federal court and in many respects are similar.However, California does not have any procedures similarto the new disclosure rules under federal practice. Discov-ery in California is subject to the proper request. The basicdiscovery rules for California are found in sections 2016–2036 of the Code of Civil Procedure, known as the CivilDiscovery Act of 1986. Additional rules regarding discov-ery are found in the California Rules of Court, Rules331–341. (See Exhibit 8-1) Case law also plays an impor-tant part in the law of discovery.

CHOICE OF DISCOVERY METHODS

In California, an attorney has available the followingmethods of discovery: depositions, interrogatories, re-quests for admissions, requests to produce, medical exam-inations, and requests for exchange of expert information.Exhibit 8-1 is a summary of the various California discov-ery code sections and rules of court.

TIME LIMITS

Absent a stipulation or court order to the contrary, discov-ery normally must be completed thirty days before the trial

date, and all discovery motions heard fifteen days prior tothe trial. If a case has been to judicial arbitration, absent acourt order, discovery is closed fifteen days before the ar-bitration hearing, even if the award is rejected (Calif.Rules of Court § 1612 and CCP § 2024). Unlawful de-tainer actions and eminent domain proceedings are alsoregulated by different rules. Specific time limits that applyto each method of discovery are discussed in subsequentchapters.

LIMITED CIVIL CASES—ECONOMIC LITIGATION

Limited civil cases that come under the rules of economiclitigation and are governed by CCP §§ 94 and 95. Thesesections incorporate the methods of discovery along withthe notice and format requirements of the Civil DiscoveryAct. However, the number of discovery requests that canbe made is limited. Absent a court order or stipulation, thetotal combined number of interrogatories, requests for ad-missions, and demands for inspection cannot exceedthirty-five, and depositions are limited to one per party. Inaddition to the normal discovery methods available, thecode permits two other methods of obtaining informationin municipal court actions. The first is a “case question-naire.” A case questionnaire, a Judicial Council form,

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54 PART III Discovery

Exhibit 8-1 Summary of California Discovery Law

CODE OF CIVIL PROCEDURE (CIVIL DISCOVERY ACT OF 1986)

§ 2016 TITLE AND DEFINITIONS The code sections dealing with discovery are known as “The Civil Discovery Act of 1986.”Various terms are defined.

§ 2017 SCOPE OF DISCOVERY This section defines the matters that are generally subject to discovery and provides generalguidelines for protective orders. It specially permits discovery of the existence and limits ofinsurance coverage, and limits discovery of plaintiff’s sexual conduct in sexual harassment,assault or battery cases. This section also establishes guidelines for the use of technology inconducting discovery in complex cases.

§ 2018 ATTORNEY’S WORK PRODUCT PROTECTION Section 2018 specifically creates a work product privilege, defining both an absoluteprivilege and a qualified privilege. It also lists some exceptions to the privilege.

§ 2019 METHODS OF DISCOVERY This section lists the various methods of permissible discovery, empowers the court to makeprotective orders, and discusses sequence and timing of discovery methods, discoveryrelating trade secrets, and service by mail.

§ 2020 DEPOSITION OF NONPARTY This section explains the procedures for taking the deposition of a nonparty. In particular itcovers the issuance of a deposition subpoena and its use in compelling the attendance of anonparty or in obtaining business records. It also covers service of the subpoena,compensation of the witness, and punishment for disobedience of the subpoena.

§ 2021 MODIFICATION OF DISCOVERY PROCEDURES BY STIPULATION OF PARTIES This section allows parties to modify the discovery procedures outlined in the code.

§ 2023 MISUSE OF DISCOVERY PROCESS This section outlines acts which constitute a misuse of the discovery process and defines thetypes of sanctions that can be imposed for that misuse. It also describes motion proceduresfor requesting sanctions.

§ 2024 TIME LIMITATIONS ON DISCOVERY This section covers general time limits on discovery and discovery motions for cases set fortrial and for cases going to judicial arbitration. Specific provisions apply to unlawfuldetainer and eminent domain proceedings.

§ 2025 ORAL DEPOSITIONS IN CALIFORNIA This section explains when and where depositions can be taken; notice requirements;objections to the deposition; protective orders; failure to attend the deposition; proceduresfor audio or video recording of the deposition; qualifications of the deposition officer;examination and objections to testimony during the deposition; motions concerning thedeposition; requests for copies of the transcript, audio tape, or video tape; reviewing andapproving deposition transcript; objecting to the transcript; subsequent depositions ofindividuals; and use of deposition at trial.

§ 2025.5 COPIES OF TRANSCRIPT, VIDEOTAPE OR OTHER RECORDING OF DEPOSITIONTESTIMONY. Subject to a protective motion by the parties, any can request and obtain a copy of thedeposition transcript if they pay for it.

§ 2026 ORAL DEPOSITIONS IN ANOTHER STATE This section authorizes the taking of depositions in other states and outlines the proceduresfor doing so.

§ 2027 ORAL DEPOSITIONS IN FOREIGN NATION This section authorizes the taking of oral depositions in a foreign nation and outlines theprocedures for doing so.


CHAPTER 8 Overview of the Discovery Process 55

Exhibit 8-1 Summary of California Discovery Law (continued)

§ 2028 DEPOSITIONS BY WRITTEN QUESTIONS This section discusses taking a deposition by written questions rather than oral examination.It covers notice of the deposition, service of questions, objections to questions, motions re-garding objections, review of questions by the deponent, protective orders, and the proce-dure for taking the deposition by the deposition officer.

§ 2029 DEPOSITION IN CALIFORNIA FOR USE IN ACTION PENDING IN ANOTHER STATE ORFOREIGN NATIONAllows California residents to be deposed in actions pending in other jurisdictions andmakes other provisions of the discovery act applicable to such depositions.

§ 2030 WRITTEN INTERROGATORIES TO PARTY This section explains the procedure for using and responding to interrogatories. It limits thenumber to thirty-five specially prepared questions, but provides a method for expandingthat limit. It also discusses various motions relating to interrogatories and the use of inter-rogatories at trial.

§ 2031 INSPECTION OF DOCUMENTS, TANGIBLE THINGS, LAND, OR OTHER PROPERTY OFPARTY This section explains the scope of this discovery device as well as the process for its use. Italso sets out the procedure for responding to this discovery method and sets out the proce-dure for obtaining protective orders and motions to compel. This section is specificallymade applicable only to parties.

§ 2032 PHYSICAL AND MENTAL EXAMINATIONS This section defines when a physical or mental examination can be ordered, who can per-form the examination, and the procedure for obtaining the examination. Distinction ismade between examinations of plaintiffs seeking recovery for personal injuries and othercases. The section also contains provisions detailing the rights and remedies available to theparties should problems arise implementing this discovery device. The disposition of the re-port of the examining physician is also explained.

§ 2033 REQUESTS FOR ADMISSIONS BY PARTY This section covers the use and scope of requesting admissions. It explains the procedure,including timing of requests. The number of requests is limited to thirty-five but can be ex-panded. The procedure for responding or objecting is also covered, as are motions regard-ing problems which arise. The effect of admissions is also explained.

§ 2033.5 JUDICIAL COUNCIL FORM INTERROGATORIES AND REQUESTS FOR ADMISSIONS This section authorizes the Judicial Council to develop forms for interrogatories and re-quests for admissions for optional use.

§ 2034 EXCHANGE OF INFORMATION CONCERNING EXPERT WITNESSES This section explains the procedure for obtaining information regarding experts who willtestify at trial. It provides for simultaneous exchange of the names, addresses and reports ofexperts who will testify. The section also discusses motions for protective orders. It also au-thorizes the deposition witnesses listed. The section also explains the consequences of fail-ing to comply with the provisions of the section.

§ 2035 DISCOVERY PRIOR TO COMMENCEMENT OF ACTION This section authorizes the taking of a deposition to perpetuate testimony prior to the com-mencement of any lawsuit. The procedures for setting up the deposition are explained.

§ 2036 DISCOVERY PENDING APPEAL This section explains the scope of discovery pending appeal, the methods of discoveryavailable, and the procedures for obtaining such discovery.

(continued )


allows parties to obtain basic information regarding thecase. Case questionnaires can be served on the other partywith the complaint or the answer. However, the party serv-ing the case questionnaire must also serve a completedquestionnaire (CCP § 93). A second method of obtaininginformation is the request for statement identifying wit-nesses and evidence. This method allows either party toobtain the names and addresses of all trial witnesses alongwith a description and copies of all documentary evidenceintended to be introduced. Witnesses not identified anddocuments not included can be inadmissible at trial. The

request is served not more than forty-five days nor lessthan thirty days prior to trial (CCP § 96).

ETHICAL CONSIDERATION IN DISCOVERY

The discovery act makes it very clear that unreasonablebehavior in requesting or responding to discovery will notbe tolerated. Monetary and other sanctions are repeatedlyprovided for in the discovery sections for this type of con-duct.


Exhibit 8-1 Summary of California Discovery Law (continued)

LIMITED CIVIL CASES—ECONOMIC LITIGATION

§ 94 PERMISSIBLE FORMS OF DISCOVERY This section outlines the permissible forms of discovery in limited civil cases (or cases inmunicipal court) under economic litigation. The section incorporates the notice and formatrequirements of the Civil Discovery Act and retains the various methods of discovery avail-able under that act. However it limits the number of interrogatories, requests for admissions,and inspection demands to a total of thirty-five, and limits the number of depositions to one,absent a court order to the contrary.

§95 MOTION OR STIPULATION FOR ADDITIONAL DISCOVERYAllows parties to stipulate to or to make a motion to the court for additional discovery.

§ 96 REQUEST FOR STATEMENT IDENTIFYING WITNESSES AND EVIDENCE This section authorizes either party to request the other party to provide the names and ad-dresses of all parties intended to be called as witnesses at trial and sets forth the procedurefor doing so.

RULE CALIFORNIA RULES OF COURT

331 FORMAT OF SUPPLEMENTAL AND FURTHER DISCOVERY This section describes the format to be followed when sending supplemental interrogato-ries, or supplemental responses , amended responses, or further responses to interrogato-ries, requests for admissions, or inspection demands.

Rule 333 ORAL DEPOSITIONS BY TELEPHONE, VIDEOCONFERENCE, OR OTHER REMOTEELECTRONIC MEANS.This rule permits the taking of deposition by telephone, videoconference or similar methodsand sets forth requirements for this procedure.

335 FORMAT OF DISCOVERY MOTIONS This rule describes the format to be followed for motions to compel.

337 SERVICE OF PAPERS ON NONPARTY DEPONENT This rule requires that motions to compel addressed to a nonparty deponent be personallyserved on the nonparty unless the nonparty agrees to accept service by mail on the deposi-tion record.

Rule 341 SANCTIONS FOR FAILURE TO PROVIDE DISCOVERYThis rule permits the court to impose sanctions for failure to provide discovery even thoughno opposition to a motion is made and even though discovery is provided after a motion isfiled. However, failing to oppose a motion is not an admission that the motion was properor that sanctions should be granted.


CHAPTER 8 Overview of the Discovery Process 57

THE EXTENT OF ALLOWABLE DISCOVERY

Discovery in California is limited to matters, not other-wise privileged, that are relevant to the subject matter in-volved in the action and that are admissible or lead to ad-missible evidence. Two matters are specifically addressedin the code. The existence and contents, including policylimits, of any insurance policy that would cover the judg-ment is made discoverable. The fact that this informationis discoverable does not make it admissible at trial (CCP §2017(b)). Furthermore, if a claim is not covered by insur-ance, the plaintiff cannot discover the financial ability ofthe defendant to pay the judgment, unless the defendant’sfinancial status is relevant to the case (e.g., a claim forpunitive damages, where the amount awarded depends onthe financial status of the defendant). The code also ex-pressly covers the discoverability of the plaintiff ’s sexualconduct in actions for sexual battery, sexual harassment,and sexual assault. Any party seeking discovery concern-ing the plaintiffs sexual conduct with anyone other thanthe alleged perpetrator must establish good cause and mustmake a motion to allow the discovery (CCP § 2017(d)).

LIMITS ON DISCOVERY

Discovery in California is subject to the same limitationsas are found in the federal rules. Matters subject to evi-dentiary privileges, including the attorney/client privilege,are not discoverable. The work product privilege is specif-ically described in the code (CCP § 2018). Naturally, anyconstitutional privilege, such as the Fifth Amendment orthe right to privacy also apply. Because of the nature ofsome of the litigation in California, privileges relating togovernment secrets and trade secrets have also become

important. Additionally, the court retains the power tolimit any discovery request that is considered unreason-ably duplicative, cumulative, burdensome, or expensive(CCP §§ 2017(c) and 2019(b)).

WORK PRODUCT PRIVILEGE

The work product privilege in California distinguishes twotypes of privileges, one absolute and one qualified. Writ-ings that reflect an attorney’s impressions, conclusions,opinions, legal research or theories are absolutely privi-leged. They cannot be obtained through any discoverymethod, even with a court order. All other types of workproduct are subject to a qualified privilege. That is, theyare not generally discoverable, but can be made so if acourt determines that denial of discovery would unfairlyprejudice the party seeking discovery or would result in aninjustice (CCP § 2018).

TRADE SECRETS

Special protection is given to disclosure of informationthat is considered to be a trade secret. See Civil Code§ 3426.5 and CCP § 2019(d).

CONFIDENTIALITY AGREEMENTS ANDPROTECTIVE ORDERS

Protective orders are generally covered in CCP §§ 2017(c)and 2019(b). Additionally, they are repeatedly referred toin sections dealing with specific methods of discovery.

COOPERATING WITH DISCOVERY

The California code and the courts encourage cooperationamong the attorneys in the discovery process. This attitudeis reflected in two important ways. First, in almost allcases, the code requires the attorneys to try to resolve theirproblems prior to making a motion. This is referred to asthe “meet and confer” requirement. (And the motion mustbe accompanied by a declaration stating that this wasdone.) Secondly, in all cases, the court has the power toimpose sanctions for failure to cooperate. The Californiacourts can impose the same basic sanctions as the federalcourts.

DISCOVERY CONFERENCES

Discovery conferences are not specifically provided for inthe California Civil Discovery Act. However, discoverymatters can be discussed at other types of pretrial confer-

ences, particularly case management conferences (routinepretrial conferences).

MOTIONS TO COMPEL DISCOVERY

Throughout the Civil Discovery Act, the court is given thepower to grant or deny orders to compel discovery. Mo-tions to compel discovery fall into two categories. First, ifa party fails to respond at all to a discovery request, a mo-tion to compel that response is made. Alternatively, if aparty responds, but does so in an incomplete or impropermanner, then a motion to compel further response is made.Such a motion is also appropriate where an objection todiscovery has been made and the propounding party feelsthe objection is not proper. In addition to the code sectionsin the Civil Discovery Act, the same code sections andrules that govern all motions govern motions to compel

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CHAPTER 8AExchange of Information Concerning Expert Witnesses

KEY POINTS

• Prior to trial parties can demand simultaneous ex-change of information about expert witnesses.

• Information to be exchanged may include expert’sname, qualifications, expected testimony and writ-ten reports.

• Failure to comply with the demand can result inlosing right to call expert at trial.

• Bookmark these sites, as they provide valuable in-formation about experts in California:

www.ca-experts.com www.idex.com

discovery. Rule 335 of the California Rules of Court pro-vides additional requirements:

1. In addition to a notice of motion, declaration insupport of motion, and memorandum of pointsand authorities, a motion to compel further re-sponses must contain a separate document whichsets forth (a) each interrogatory, item or categoryof items, request, question or document or tangi-ble thing to which a further response is requested,(b) the response that was given, and (c) the factualand legal reasons for compelling it. This docu-ment is usually entitled “Separate Statement.”

2. Any motion concerning interrogatories, inspec-tion demands, or admissions requests must iden-tify the discovery by set number.

3. If the response to the disputed interrogatory is de-pendent on the response to any other question, thatquestion and its response must also be set forth.

4. Finally, if pleadings or other documents in the fileare relevant to the motion, they must be summa-rized.

SANCTIONS AGAINST NONCOMPLYING PARTIES

Section 2023 gives the court the power to impose mone-tary sanctions, issue sanctions, evidence sanctions, or ter-

minate sanctions. An issue sanction involves a court orderthat designated facts be taken as established in the action.In other words, the party who abused the discoveryprocess will not be allowed to prove or defend against acertain issue in the case. Similar to this is an evidencesanction, which involves a court order denying the admis-sion of certain evidence in a case. A terminating sanctionresults in the termination of the case, either by dismissal orjudgment being entered. In some extreme cases, parties ortheir attorneys can also be held in contempt of court andpunished accordingly.

SERVICE OF DISCOVERY AND DISCOVERY MOTIONS

All discovery requests, responses, and motions are servedby the attorney for the propounding party on the attorneysfor all other parties in the action, not only on the attorneyfor the responding party. Generally, service is by first classmail but can be by personal service, express mail, or,where agreed to by all, by fax. An appropriate proof ofservice is prepared. Discovery requests and responses arenot filed with the court. The propounding party keeps alloriginals. Naturally, discovery motions must be filed incourt.

EXCHANGE OF INFORMATION CONCERNING EXPERT WITNESSES

Under the Federal Rules of Civil Procedure, parties arenow automatically required to disclose substantial informa-tion regarding their expert witnesses. California has no au-tomatic disclosure requirements, but much of the same in-formation regarding experts is discoverable through adiscovery method known as a Demand for Exchange of In-formation Concerning Expert Witnesses (CCP § 2034).After a trial date has been set in a case, either party may de-mand a simultaneous exchange of information concerningeach other’s expert trial witnesses. The information that

must be exchanged includes not only the name of the ex-pert, but also information about the expert’s qualifications,expected testimony, and copies of discoverable written re-ports. Information about experts can often be obtained orverified on the Internet. Two valuable sites are: www.ca-experts.com, which contains information about witnesses,including curriculum vitae for some experts; andwww.idex.com, which provides information about prior de-position or court testimony of witnesses. See Exhibit 8A-1for an example of a demand for disclosure of experts.


CHAPTER 8A Exchange of Information Concerning Expert Witnesses 59

Tonya DeLeonAttorney at LawCalif. State Bar No. 01234103 North First St. San Jose, California, 95110(408) 555-1212

Attorney for Plaintiff

IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SANTA CLARA

MARILYN MASON, )) No. 12345

Plaintiff )) DEMAND FOR EXCHANGE OF ) EXPERT TRIAL INFORMATION

vs. ) PURSUANT TO CCP § 2034 AND ) DEMAND FOR PRODUCTION OF ) EXPERT REPORTS AND WRITINGS

MERCHANT’S GROCERY, et al., ) PURSUANT TO CCP § 2034(a)(3) )

Defendants. ) ___________________________________

DEMANDING PARTY: Plaintiff, MARILYN MASON

DATE AND TIME OF EXCHANGE: June 13, 2004; 9:00 a.m.

PLACE OF EXCHANGE: 103 North First St. San Jose, California 95110

Pursuant to Code of Civil Procedure Section 2034, Plaintiff, MARILYN MASON, hereby demands

that on or before the above mentioned date of exchange and at the above mentioned place of exchange,

all parties to this action take part in a mutual and simultaneous exchange of information concerning each

party’s expert trial witnesses. The exchange of expert witness information shall include the following:

1. A list setting forth the name and address of any natural person, including any party, whose oral or

deposition testimony in the form of an expert opinion will be offered in evidence at trial, or

1

Demand for Exchange of Expert Trial Information

Exhibit 8A-1 Demand for Exchange of Expert Information

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(continued )



2. A statement that no expert witness’s testimony will be offered.

If any designated expert is a party, an employee of a party, or has been retained by that

party for the purpose of forming and expressing an opinion in anticipation of the litigation or in

preparation for the trial of the action, the exchange shall include or be accompanied by an ex-

pert witness declaration signed only by the attorney for the party designating the expert, or by

the party, if that party has no attorney. This declaration shall be executed under penalty of per-

jury and contain:

1. A brief narrative statement of the qualifications of the expert;

2. A brief narrative statement of the general substance of the testimony the expert is ex-

pected to give;

3. A representation that the expert has agreed to testify at the trial;

4. A representation that the expert will be sufficiently familiar with the action to submit to

a meaningful oral deposition concerning the specific testimony, including any opinion and its

basis, that the expert is expected to give at trial; and

5. A statement of the expert’s hourly and daily fee for providing deposition testimony.

Under Code of Civil Procedure Section 2034(a)(3), each party is also required to produce

for inspection and copying at the place and on the date mentioned above, all discoverable re-

ports and writings, if any, made by any designated expert witness in the course of preparing that

expert’s opinion.

DATED: May 15, 2004 ___________________________ Tonya DeLeonAttorney for PIaintiff

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Demand for Exchange of Expert Trial Information

Exhibit 8A-1 Demand for Exchange of Expert Information (continued)

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CHAPTER 9 Depositions 61

TIME FOR DEMAND

Any party may make the demand for exchange of infor-mation no later than the tenth day after the initial trial datehas been set, or seventy days before the trial date,whichever is closer to the trial date (CCP § 2034(b)).

CONTENTS OF DEMAND

The demand must be in writing and identify, below thetitle of the case, the party making the demand. It shouldalso state that it is being made pursuant to CCP § 2034.The demand also specifies the date for the exchange. Un-less changed by court order, this date must be fifty daysbefore the initial trial date or twenty days after service ofthe demand, whichever is closer to the trial date (CCP § 2034(c)).

RESPONSES TO DEMAND FOR EXCHANGE

A responding party can either object to the demand for ex-change or comply by serving a written response. An ob-jection should be made by promptly filing a motion for aprotective order. (CCP § 2034(e)) If a written response isserved, it should include the following information (CCP §2034(f)):

1. Either a list of names and addresses of experts ora statement that the party does not expect to callany expert witnesses;

2. If the witness is a party, employee of a party, or re-tained by a party in connection with the case, theexchange must include a declaration, underpenalty of perjury, signed by the attorney (or partyif not represented) containing the following infor-mation: a. Narrative statement of qualifications of each

expert; b. Narrative statement of general substance of

expected testimony; c. Representation that expert has agreed to

testify at trial;

d. A representation that expert will besufficiently familiar with pending action tosubmit to a meaningful oral deposition;

e. Statement of expert’s hourly and daily fee forproviding deposition testimony.

EXPERTS RETAINED AFTER DEMAND IS MADE

If a party retains an expert after the original demand, andtime to respond has expired, information concerning thatexpert may be disclosed within twenty days after the orig-inal date fixed for the exchange. In such a case, the partyretaining the expert is required to make that expert imme-diately available for deposition, even though the time limitfor discovery has expired.

In lieu of the supplemental disclosure (or if the timelimit described above has lapsed), if a party has retained asubsequent expert or wishes to amend the expert witnessdeclaration regarding the testimony of any named expert,that party may make a motion to augment expert witnesslist or augment or amend declarations of expert witnesses.Under exceptional circumstances this motion can be madeat any time (CCP § 2034(k)).

EXPERT INFORMATION KNOWNBUT NOT DISCLOSED

If a party has failed to disclose expert information (ratherthan subsequently retaining an expert), that party canmake a motion to submit tardy expert witness information.The court must consider the prejudice suffered by theother side before granting or denying this motion (CCP §2034(l)).

FAILURE TO COMPLY WITH DEMAND

Failure to comply with the requirements of the demand forsimultaneous exchange of expert information can result inthe expert’s testimony being excluded at trial (CCP §2034(j) and (m)).

CHAPTER 9Depositions

KEY POINTS

• CCP §§ 2020 & 2025–2029 regulate depositionsin California.

• Depositions are the only discovery method for ob-taining information from nonparties in California.

• Special subpoenas, known as deposition subpoe-nas, are used to compel attendance of nonpartiesat depositions.

• Depositions can sometimes be used in lieu of tes-timony at trial.



Section 2025 of the Code of Civil Procedure is the primarysection regulating oral depositions taken in California.Additionally, section 2020 contains provisions that affectdepositions of nonparties and sections 2026 and 2027regulate depositions taken in other states and foreign na-tions, respectively.

OBTAINING WRITTEN RECORDS

Documents and things that are in the custody or control ofa party can be discovered in two ways, either through the re-quest to produce (see Chapter 12) or through the deposi-tion. When a party’s oral deposition is taken, that party canbe required to bring records or documents by including a re-quest for the documents in the notice of taking deposition.

In California the request to produce cannot be usedagainst a nonparty. Therefore, documents or things in thecustody of a nonparty must be discovered through the useof the deposition. The procedures to obtain records differ,depending on the type of documents sought.

In all cases, the attorney can serve the person havingcontrol of the records with a deposition subpoena, com-pelling that person’s attendance at a deposition and furthercompelling that person to bring designated documents oritems to the deposition. The attorney can then examine thedocuments in the course of the oral examination.

BUSINESS RECORDS

If business records are the subject of the discovery, an al-ternative procedure exists. If the attorney is interested onlyin the records and does not want to conduct an oral exam-ination of anyone, the attorney can serve the nonpartyhaving the records with a special deposition subpoena forproduction of business records for copying (see Ex-hibit 9-1). In California, subpoenas can generally be is-sued by either the clerk of the court or by any attorney inthe case. This subpoena is directed to the custodian ofrecords (i.e, the person in the business in charge of therecords). The custodian is allowed to respond to the sub-poena by sending the original or copies of the records to adesignated location, along with an affidavit or declarationverifying the authenticity of the records (Evidence Code §1561). The subpoena can require production no earlierthan twenty days after issuance of the subpoena or fifteen

days after service, whichever is later. If the records arecopied by the deponent, a reasonable fee, including labor,for the copying must be paid (Evidence Code § 1563). Thedesignated location for this type of deposition is often theoffice of an authorized copy service. The copy servicecopies the records and sends them to the attorney and anyother attorney who has requested a copy). A personal ap-pearance at the deposition is not required by the deponent(the custodian of records) or by the attorneys. In this typeof deposition, a copy of the deposition subpoena is servedon all attorneys and constitutes notice of the deposition. Aseparate notice of taking deposition is not required. CCP §2020 and Evidence Code § 1560 describes in detail howthis takes place.

CONSUMER’S PERSONAL OREMPLOYMENT RECORDS

A special problem arises when records to be discoveredare consumer’s personal or employment records. Con-sumer’s personal records are defined in CCP § 1985.3 andinclude such items as medical records, bank records, orschool records. Employment records are defined in CCP §1985.6 and include books, documents, other writings orelectronic data pertaining to employment of any employeeor former employee. If these records are the object of thediscovery, prior notice must be given to the consumers oremployees that their records are being subpoenaed or dis-covered, and that they have the right to object. A JudicialCouncil form exists for this purpose (see Exhibit 9-2). Theconsumer must be served with a copy of the depositionsubpoena and copy of the notice of taking deposition. No-tice must be served on the consumer at least ten days priorto the date set in the subpoena for production of the docu-ments, and at least five days before the subpoena is servedon the custodian of records (CCP §§ 1985.3(b)(2) and (3);and 1985.6(b)(1), (2), and (3)). Service can be made per-sonally or by mail, but if the notice is served by mail, thetime is extended as it is for motions. The consumer or em-ployee then has an opportunity to object to the discoveryby completing the section of the Judicial Council formentitled “Objection by Nonparty to Production of Record.”Proof of notice to the consumer or a written waiver fromthe consumer or employee must be served with the sub-poena. A copy must also be served with the notice of tak-ing deposition.

The use of depositions in state court is regulated by Codeof Civil Procedure section 2020 and sections 2025–2029.Depositions in state court are similar to those in federalcourt in many ways, including the scope of inquiry and the general procedures in noticing and taking the deposition.

The types of depositions in California include the oraldeposition, the deposition on written questions and the de-position of business records. In California, the depositionis the only discovery method that can be used to obtain in-formation or documents from nonparties.

THE DEPOSITION

THE NATURE OF THE ORAL DEPOSITION



Exhibit 9-1 Deposition Subpoena for Production of Business Records

(continued)



Exhibit 9-1 Deposition Subpoena for Production of Business Records (continued)



Exhibit 9-2 Notice to Consumer or Employee and Objection

(continued)



Exhibit 9-2 Notice to Consumer or Employee and Objection (continued)



NOTICE REQUIREMENTS

CCP § 2025 and CCP § 2020 regulate the notice require-ments for oral depositions in California. The completenotice requirements differ depending on whether the depo-nent is a party or a nonparty and on whether the deponent isrequested to bring records or documents to the deposition.

PARTY DEPONENT

If the deponent is a party, ten days prior written notice ofthe deposition must be given to attorneys for all partieswho have appeared in the action (the time is extended ifit is mailed, just as it is for motions). Proper service ofthe notice on the party deponent’s attorney is sufficientto compel the attendance of the party at the deposition.If records or documents are also requested, the request isincluded in the notice of taking deposition. No subpoenais required. However, if the documents are consumer oremployment records, the notice to consumer or em-ployee should also be served. It need not be personallyserved and can be served on the attorney of record forthe party.

NONPARTY DEPONENT

If the deponent is not a party to the action, ten days priorwritten notice of the deposition must be given to attorneysfor all parties just as with party deponents. In addition, thedeponent must be served with a subpoena. A copy of thesubpoena is attached to the notice sent to all attorneys. Ifrecords are requested, the subpoena so designates. Thereare no absolute time requirements for service of the sub-poena (unless consumer or employment records are re-quested). The code requires that subpoenas be servedwithin a reasonable time so as to allow the witness to ap-pear and to locate and produce the designated documents.If consumer or employment records are requested, the re-quirements of CCP §§ 1985.3 and 1985.6 must also be met.

CONTENT OF NOTICE

The deposition notice must state the following information:

1. Address where the deposition will be taken;

2. Date and time of the deposition;

3. Name of each deponent and address and tele-phone, if known, of nonparty deponents.

Where relevant, the following information would alsobe included in the notice or subpoena:

1. Description of any materials or documents to beproduced by deponent;

2. Intention to record by audio or videotape in addi-tion to stenographic method;

3. Intention to reserve the right to use at trial a video-taped deposition of a treating or consulting physi-cian or of any expert witness;

4. Intention to use instant video display;

5. If named deponent is not a natural person (e.g.,corporation), a description with reasonable par-ticularity the matters on which examination isrequested.

SERVICE OF NOTICE

A plaintiff is allowed to serve a notice of a depositiontwenty days after service of the summons on, or appear-ance by, any defendant. The defendant is allowed to servea deposition notice at any time after that defendant hasbeen served or has appeared in the action, whichever oc-curs first (CCP § 2025(b)(1) and (2)).

FORMAT OF NOTICE

A notice of taking deposition is normally prepared onpleading paper and the caption is the same as that on thepleadings. Attached to the notice or proof of service wouldalso be a list of all parties or attorneys on whom it isserved. Any objection to the format of the notice must bemade within three days prior to the date scheduled for thedeposition or it is waived (CCP § 2025(g)).

SUBPOENA REQUIREMENTS

A nonparty witness must be served with a subpoena tocompel attendance at a deposition. CCP § 2020 establishesspecial deposition subpoenas for this purpose. These sub-poenas are entitled “Deposition Subpoena for PersonalAppearance” and “Deposition Subpoena for Personal

THE PARALEGAL’S ROLE BEFORE THE ORAL DEPOSITION

TRENDS IN ORAL DEPOSITIONS

CCP § 2025(1) specifically regulates the use of video (andaudio) recording of depositions. This section dictates in avery detailed manner how the videotaping of the deposi-tion is to be conducted and the use of the taped depositionat trial. An important point to note is that if an attorneywishes to videotape or audiotape a deposition, notice ofthat intent must be given prior to the deposition. This no-tice is usually included in the notice of taking depositionor in the subpoena.

Rule 333 of the Rules of Court authorizes the use oftelephone, videoconferencing or similar methods for tak-ing depositions. All parties must be notified prior to thedeposition. Under some circumstances, prior court ap-proval may be approved.

Another new trend in taking depositions is the use ofsoftware that provides instant visual display of the testi-mony. If an attorney plans on using this, the depositionsubpoena or notice must so indicate.



Appearance and Production of Documents and Things.”These subpoenas are used in lieu of the normal subpoenathat is used to compel attendance at a court proceeding(described in CCP § 1985) (see Exhibits 9-3 and 9-4).

Deposition subpoenas can be issued by the clerk ofthe court or the attorney of record for any party. Unlike a regular subpoena duces tecum, a deposition commandingproduction of documents does not require a supporting af-fidavit or declaration showing good cause. The subpoenashould be served personally if the deponent is an individ-ual. If the deponent is an organization, service can bemade on any officer, director, custodian or records, orauthorized agent for service of process.

Where personal attendance at the deposition is re-quired, either with or without the production of documents,the subpoena must be served a sufficient time in advance ofthe deposition to provide a reasonable opportunity to locateand produce any documents and a reasonable time to travelto the place of the deposition (CCP § 2020(f )). If the sub-poena commands the production of business records forcopying only, it must be served fifteen days prior to the dateof production, and it must be issued at least twenty days be-fore the date of production (CCP § 2020(d)(l)).

If personal attendance and testimony is required, thewitness is entitled to a statutory witness fee, whether or notthe witness demands it, to be paid at the time service ismade or at the time of the deposition. If the deponent is agovernment employee, the attorney noticing the depositionmust deposit a statutory amount (currently $150) with thecourt at the time the subpoena is issued (Govt. Code §§68093–68097.55). If the deponent is an expert witness, thatwitness is entitled to a fee based on the expert’s reasonableand customary hourly or daily fee. (CCP § 2034(i)(2)) If

the attorney thinks the expert fee is unreasonable, the attor-ney can make a motion in court to set the fee.

PREPARATION FOR THE DEPOSITION

Section 2025(e) limits the site that can be chosen for a de-position. The deposition of a natural person, whether aparty or not, can be taken at a place that is either:

1. Within seventy-five miles of the deponent’s resi-dence; or

2. Within the county where the action is pending andwithin 150 miles of the deponent’s residence.

If the deponent is an organization that is a party, thedeposition must be located:

1. Within seventy-five miles of the principal execu-tive or business office in California; or

2. Within the county where the action is pending andwithin 150 miles of that office.

The deposition of a nonparty organization must betaken within seventy-five miles of the organization’s prin-cipal executive or business office in California. Any depo-sition may be taken elsewhere if the parties so stipulate, orif the court so orders.

PREPARATION FOR DEFENDING THE DEPOSITION

CCP § 2025(i) describes motions for protective orders andauthorizes the court to intervene to protect a person or or-ganization from unwarranted annoyance, embarrassment,or oppression, or undue burden and expense. Before mak-ing such a motion, as with all discovery motions, the attor-neys must try to resolve the problem and a declarationstating that this was done must accompany the motion.

TRANSCRIPT ARRANGEMENTS

After the original deposition transcript has been preparedthe parties have thirty days in which to read, correct, andsign the deposition, although it is common for the parties towaive the signature requirement at the deposition itself. Ifthe deponent wishes to make changes or corrections to thedeposition transcript, this should be done within the thirtydays in writing. If a deponent changes his testimony, thatchange will be noted along with the original testimony. Thedeponent can change testimony sending the change in acertified letter with copies to all attorneys. If no writtentranscript exists because the original deposition is in videoor audio format, similar rights exist (CCP § 2025(q)).

PRESERVING THE TRANSCRIPT

If in transcript form, the original deposition will be sent tothe attorney noticing the deposition. That attorney is

responsible for keeping the deposition for six months afterthe final disposition of the case (CCP § 2025 (s)). If the de-position is in video or audio form, the original is kept withthe operator for the same time.

MOTIONS TO COMPEL

If problems arise during the deposition examination, theattorney may make motions to compel answers or furtheranswers to questions (CCP § 2025(m)(n)(o)). The motionmust be made no later than sixty days after completion ofthe record of the deposition. No less than five days prior tothe hearing on the motion, the moving party must lodgewith the court a certified copy of the relevant parts of thetranscript. Documents the parties lodge with the court arereturned to the parties after the relevant hearing. The courtrequires the parties to provide a stamped, self-addressedenvelope for this purpose (Rule 319 (b) of CaliforniaRules of Court).

THE PARALEGAL’S ROLE AFTER THE ORAL DEPOSITION



Exhibit 9-3 Deposition Subpoena for Personal Appearance



Exhibit 9-4 Deposition Subpoena for Personal Appearance and Production of Documents and Things


CHAPTER 10 Interrogatories 71

THE DEPOSITION UPON WRITTEN QUESTIONS

Depositions upon written questions are authorized andregulated by CCP § 2028. This type of deposition is no-ticed in much the same way as an oral deposition underCCP § 2025. However, since the parties must have time tosubmit questions and pose objections to the questions, thetime for giving notice is considerably longer than the oral deposition. The time limits, the content of the notice, andthe procedures for objecting to the deposition or to deposi-tion questions are set out in CCP § 2028.

ORAL DEPOSITIONS IN ANOTHER STATE ORFOREIGN NATION

Because of the geographical limits on where the deposi-tion can be taken, it is sometimes necessary to take a de-position in another state or even in a foreign nation. Theprocedures for doing this are authorized and regulated byCCP §§ 2026 and 2027. If the deponent is a party, theparty’s attendance at the deposition is compelled in thesame way as if the deposition were scheduled withinthe state, i.e., notice of the taking of the deposition. If thewitness is a nonparty, then the attorney must refer to thelaws of the state or the foreign nation where the depositionis to be taken. It is common to consult an attorney in thestate where the deposition is to be taken.

COMMISSIONS, LETTERS ROGATORY, ANDLETTERS OF REQUEST

To facilitate the taking of depositions outside California,the court in which the action is pending has the authorityto issue commissions, letters rogatory, or letters of request.These are statements from the California court declaringthat a deposition is necessary and may include directionsfor taking the deposition. Such documents can be pre-sented to the court in the foreign jurisdiction when action

in that court is necessary to complete the deposition. Aparty obtains a commission, letters rogatory or letters ofrequest by making a motion in the trial court (CCP §2027(c)).

DEPOSITION TO PERPETUATE TESTIMONY

In some cases, California law authorizes taking a deposi-tion before any lawsuit has been filed. If a person antici-pates that he or she will be named as a party in a lawsuitand exceptional circumstances exist necessitating the pre-serving or his own testimony or that of another, a deposi-tion may be allowed. A prior court order authorizing thedeposition must be obtained. The procedure is described inCCP § 2035(c) and (d).

USE OF DEPOSITION AT TRIAL

The use of a deposition at trial is regulated by section2025(u). Like all forms of discovery, a deposition may beused to impeach or contradict a witness’s testimony attrial. Unlike other forms of discovery, at times the deposi-tion can be used in lieu of the courtroom testimony. Adeposition can be used in lieu of testimony under the fol-lowing situations:

1. Whenever the deponent is an adverse party;

2. When the deponent is a nonparty who lives morethan 150 miles from the place of trial;

3. When the deponent is a nonparty who is unavail-able to testify or if exceptional circumstancesexist;

4. When it is a videotaped deposition of a treating orconsulting physician or any expert, and the rightto use the deposition was reserved in the notice oftaking deposition.

SPECIAL TYPES OF DEPOSITIONS

CHAPTER 10Interrogatories

KEY POINTS

• Interrogatories in California are primarily regu-lated by Code of Civil Procedure § 2030.

• Motions to Compel are also regulated by Rule 335of the California Rules of Court.

• Judicial Council form interrogatories are availablefor optional use.

• The number of specially prepared interrogatories islimited to thirty-five, absent a special declaration.



Section 2030 of the California Code of Civil Procedureregulates the use of interrogatories in California actions.In many respects section 2030 is similar to Rule 33 of theFederal Rules of Civil Procedure. CCP § 2030 does con-tain the following specific provisions:

JUDICIAL COUNCIL FORMS

Parties may use standard form interrogatories that havebeen developed and approved by the Judicial Council foruse in certain kinds of cases. Forms exist for personal in-jury and contract actions, employment law actions, unlaw-ful detainer actions and limited civil cases. Forms alsoexist for family law cases. Exhibit 10-1 is a copy of theform interrogatories appropriate for personal injury andcontract actions. The Judicial Council form interrogatoriesare not exclusive. In lieu of or in addition to the form in-terrogatories parties can draft their own questions. Theseare referred to as specially prepared interrogatories.

SERVICE OF INTERROGATORIES

The plaintiff may serve interrogatories ten days after ser-vice of the complaint or anytime after the appearance ofthe defendant, whichever occurs first. The defendant mayserve interrogatories on the plaintiff at any time (CCP §2030(b)). Parties are served through their attorneys. Ser-vice is usually accomplished by first class mail, withcopies sent to all attorneys in the action.

NUMBER OF INTERROGATORIES

CCP § 2030 limits the number of questions or interrogato-ries which may be served on another party. A party may useany number of Judicial Council form interrogatories. How-ever, the number of specially prepared interrogatories islimited to thirty-five, unless the propounding party shows a

need for additional questions by attaching a declaration foradditional discovery to the interrogatories. The format forthis declaration is found in CCP § 2030. If the declarationis not attached and the set of interrogatories contains morethan thirty-five questions, the responding party need onlyanswer the first thirty-five interrogatories. (CCP § 2030 (c))The thirty-five questions need not be asked in the same set.Multiple sets may be served.

In addition to the thirty-five specially prepared ques-tions, a party is permitted to serve supplemental interroga-tories. Supplemental interrogatories are those that specifi-cally ask for information, acquired after interrogatorieshave been answered, that would update or change any prioranswers. Such questions are not included in the thirty-fivequestion limit (CCP § 2030(c)(8)).

CONTINUING INTERROGATORIES

Although supplemental interrogatories are allowed,California does not permit the use of continuing interroga-tories. Continuing interrogatories are those which requirethe responding party to automatically update prior answerswith later acquired information (CCP § 2030(c)(7)).

LIMITED CIVIL CASES

Interrogatories in limited civil cases are regulated by Sec-tion 94 of the Code of Civil Procedure. This section refersto and incorporates CCP § 2030 with some notable excep-tions. The total number of interrogatories, demands toproduce documents, and requests for admissions cannotexceed thirtyfive combined. Furthermore, if additionaldiscovery is desired, the propounding party must make amotion or obtain a stipulation from the other party. Theparty cannot simply attach a declaration for additionaldiscovery.

INTERROGATORIES

FORMAT AND CONTENT OF THE INTERROGATORIES

The format for interrogatories in California will depend onwhether or not the Judicial Council Forms are used. If theJudicial Council forms are used, you simply fill in theblanks, primarily the caption, and check the boxes in frontof the questions you want answered. If specially preparedinterrogatories are used, a different format is used. The in-terrogatories should contain the same caption that appearson the pleadings, including the docket number. The docu-ment should also be titled. The code also requires that inthe first paragraph immediately below the title of the case,the following information should appear: the name of thepropounding party, the set number, and the identity of the

responding party (CCP § 2030(c)(4)). Rule 331 of theCalifornia Rules of Court requires the same informationfor any supplemental or further sets of interrogatories. Thequestions may be preceded by instructions and definitions.However, the code does not allow any instructions otherthan those that appear in the Judicial Council forms. Fur-thermore if definitions are used, then any time the definedterm appears in the interrogatories, it must be capitalized(CCP § 2030(c)(5)). Care must also be taken in draftingthe actual questions. To eliminate a resourceful drafter’scircumventing the thirtyfive question limit by using ques-tions that have multiple subparts, the code mandates thatspecially prepared interrogatories not contain subparts nor

DRAFTING INTERROGATORIES



Exhibit 10-1 Judicial Council Form Interrogatories

(continued)



Exhibit 10-1 Judicial Council Form Interrogatories (continued)




(continued)



Exhibit 10-1 Judicial Council Form Interrogatories (continued )




(continued)



be a compound, conjunctive or disjunctive question.(Although the Judicial Council forms do contain com-pound and conjunctive questions (CCP § 2030(c)(5)). Aset of specially prepared interrogatories is illustrated inExhibit 10-2.

FILING

Interrogatories in California are not filed with the court.The propounding party is required to retain the original questions and the original answers until six months afterthe final disposition of the case (CCP § 2030(j)).

MOTION TO COMPEL

If a responding party fails to respond to any interrogato-ries, then the propounding party must make a motion tocompel answers. This motion can be made at any time. If aresponding party responds to interrogatories, but gives anincomplete answer or poses an improper objection, then,unless the parties can resolve the issue, the propoundingparty must make a motion to compel further answers to interrogatories. A motion to compel further answers to in-terrogatories is regulated by CCP § 2030 and by Rules311-324.5 and Rule 335 of the California Rules of Court.Section 2030 requires that a motion for further responsesmust be made within forty-five days of the date of service

of the original response, unless the parties have extendedthat time in writing. Rules 311-324.5 contain general rulesfor motions. Rule 335 requires the following:

1. The written motion must be accompanied by aseparate document that sets forth each interroga-tory to which further response is requested, theanswer that was given, and the legal and factualreasons for compelling further responses. Mater-ial cannot be incorporated by reference.

2. The moving papers must identity the controvertedinterrogatories by set number.

3. If the response to a particular interrogatory is de-pendent on the response given to another question,that other question and answer must be set forth.

4. If pleadings or other documents in the file are rel-evant to the motion, they must be summarized inthe moving papers.

This separate statement is in addition to the notice ofmotion, memorandum of points and authorities, and decla-ration in support of motion. The California code alsorequires that when any dispute regarding discovery re-quests occurs, the attorneys must try to settle the matterprior to making any motion. A declaration to that effectmust also accompany the moving papers.

TIME LIMITS

The time to respond to interrogatories in California isthirty days from the date of service, although the partiesmay agree in writing to extend this time. Unless thewritten agreement expressly provides to the contrary, anagreement to extend time includes the right to object aswell as to answer (CCP § 2030(i)). If a timely response tointerrogatories is not made, the responding party may losehis right to object (including work product objections). If aparty has not filed a timely response and wants to object toa question, that party must make a motion with the court toallow an objection rather than an answer (CCP § 2030(k)).

ANSWERING INTERROGATORIES

It is not necessary in California to restate the interrogatoryin the responses. Neither is there a duty to supplement an-swers in California, unless specific follow-up interrogato-ries are served.

USING BUSINESS RECORDS INSTEADOF A WRITTEN RESPONSE

Where answers to the interrogatories would require a com-pilation or summary of documents, CCP § 2030 allows aresponding party to identify and allow inspection of docu-

ments which contain answers to questions. (CCP §2030(f)) However, this right may be lost if responses to theinterrogatories are not serve in a timely fashion (CCP §2030(k)).

OBJECTING TO INTERROGATORIES

Any objections to interrogatories of responses that containobjections must be signed by the attorney for the respond-ing party. (CCP § 2030(g)) If only part of a question is ob-jectionable, the nonobjectionable part should be answered.When objecting, reasons for the objection should be stated.

SIGNATURES

The party responding to the interrogatories should sign theanswers under oath. An attorney must also sign if the re-sponse contains any objections.

AMENDING ANSWERS

Without leave of court, a party can amend or supplementanswers to interrogatories with later discovered informa-tion or information inadvertently omitted. At trial, the pro-pounding party can refer to the original answers, and theresponding party can refer to the amended answers unlessa court orders otherwise.

DRAFTING RESPONSES TO INTERROGATORIES



Tonya DeLeonAttorney at LawCalif. State Bar No. 11113103 North First St. San Jose, California, 95110(408) 555-1222

Attorney for Plaintiff

IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SANTA CLARA

MARILYN MASON, ) ) No.12345

Plaintiff ) ) FIRST SET OF INTERROGATORIES

vs. ) PROPOUNDED TO DEFENDANT ) MERCHANT’S GROCERY BY PLAINTIFF

MERCHANT’S GROCERY, et al., ) )

Defendants. ) ______________________________

PROPOUNDING PARTY: Plaintiff, MARILYN MASON

RESPONDING PARTY: Defendant, MERCHANT’S GROCERY

SET NUMBER: ONE

Pursuant to Code of Civil Procedure Section 2030, Plaintiff, MARILYN MASON, requests

that defendant MERCHANT’S GROCERY answer the following interrogatories under oath

within thirty (30) days from date of service.

1. State any other names by which you have been known.

2. Prior to the date of injury alleged in the complaint, how many times have you been in

the grocery store that is the subject of this lawsuit?

3. Give the dates or approximate dates of any times you were in Merchant’s Grocery Store

in the month immediately preceding the date of injury alleged in the complaint.

1

Interrogatories

Exhibit 10-2 Specially Prepared Interrogatories

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2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

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26

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4. Have you ever made any complaint to any employee of Merchant’s Grocery Store re-

garding the condition of the premises?

5. If your answer to question 4 is in the affirmative, please describe the substance of your

complaint.

6. If your answer to question 4 is in the affirmative, please identify the employee to whom

you made the complaint.

Dated:__________________ __________________________ Tonya DeLeonAttorney for Plaintiff

2 Interrogatories

Exhibit 10-2 Specially Prepared Interrogatories (continued)

1

2

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4

5

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8

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• CCP § 2032 regulates physical and mental exami-nations as a discovery tool in California.

• The defendant in a personal injury lawsuit has theright to demand a physical examination of theplaintiff who claims injuries.

• All other physical exams and all mental examsmust be arranged by stipulation or ordered by thecourt.

• Valuable information about licensed physicians inCalifornia can be found on the Internet at:www.medbd.ca.gov

CHAPTER 11Physical and Mental Examinations

KEY POINTS

The physical and mental examinations as a discovery toolare regulated in California by section 2032 of the Code ofCivil Procedure. Like the federal rule, this section permitsthe examination of any party, agent of a party, or person incustody or legal control of a party, in any action in whichthe mental or physical condition of that party is in contro-versy. The California statute establishes two proceduresfor implementing this discovery device, depending on thetype of action. Where the action is one for damages forpersonal injuries, the defendant has a right to demand aphysical exam (but not a mental exam) of the plaintiffclaiming those injuries. No prior court order or motion isrequired. In all other cases, a physical or mental examina-tion must be by stipulation or by court order.

THE DEMAND FOR A PHYSICAL EXAMINATION

In an action for personal injuries, any defendant can de-mand one physical examination of the plaintiff, as long asthe exam does not include any diagnostic test or procedurethat is painful, protracted, or intrusive. It must also be con-ducted at a location within seventy-five miles of the resi-dence of the examinee (CCP § 2032(c)(2)).

This discovery device is implemented by the defen-dant serving a written demand for physical examination.The demand can be served at any time after the defendanthas been served or has appeared in the action. The writtendemand must specify the time, place, manner, conditions,scope, and nature of the examination, as well as the iden-tity and specialty of the examining physician (CCP §2032(c)(2)). A copy of the demand should be served not

only on the plaintiff (through the attorney) but on all otherparties. The demand should be served at least thirty daysprior to the date scheduled for the examination (CCP §2032(c)(3) and (4)).

RESPONSE TO THE DEMANDFOR PHYSICAL EXAMINATION

Plaintiffs are required to serve a written response to the de-mand, stating either that they will comply with the de-mand, will comply as specifically modified, or will refuse.If plaintiffs refuse to comply, the reason for the refusalmust be stated. The response is required to be servedwithin twenty days of the date of service of the demand.Failure to respond in writing constitutes a waiver by theplaintiff of any objection to the demand, although theplaintiff can file a motion in court to be relieved from thatwaiver. If the plaintiff refuses to comply with the demand,then the defendant must make a motion to compel the ex-amination. Likewise, if the plaintiff has modified the termsof the demand (e.g., limited scope of examination), andthe defendant disagrees with those modifications, a mo-tion to compel must be made (CCP § 2032(c)(5) and 6)).

RETENTION OF DEMAND AND RESPONSE

Like all discovery requests (other than motions) and re-sponses, the original demand and response for the physicalexamination, along with the proofs of service are retainedby the propounding party until six months after the finaldisposition of the action (CCP § 2032(c)(8)).

THE PHYSICAL AND MENTAL EXAMINATIONS

All mental examinations and all physical examinations,other than those just described, must be set either by stipu-lation or by court order. Any physical or mental exam can

be arranged by written agreement among the parties (CCP§ 2032(e)). If no agreement can be reached, a court orderis needed. The court order is obtained by making the

FILING A MOTION FOR COMPULSORY EXAMINATION


CHAPTER 12 Request for Documents 85

EVIDENCE OF GOOD CAUSE

Under CCP § 2032(d), the court is empowered to grant themotion only if good cause is shown. The code further re-quires that if the place of examination is to be more thanseventy-five miles from the residence of the person to beexamined, the demanding party must show good cause torequire the examinee to travel that distance. The demand-ing party will also probably be required to pay reasonableexpenses and costs to the examinee for travel to the place

of examination. Additionally, as with all discovery mo-tions, the moving party must include a declaration that the attorneys have made a good faith attempt to arrange an ex-amination by agreement (CCP § 2032(d)).

If the court grants a motion, the order must specify theperson who may perform the examination, the time, place,manner, diagnostic tests and procedures, conditions,scope, and nature of the exam (CCP § 2032(d)).

REQUIREMENTS FOR GRANTING THE MOTION FOR A COMPULSORY EXAMINATION

proper motion. The motion must specify the time, place,manner, conditions, scope and nature of the examination,as well as the identity and specialty of the examiner. Themotion must also be accompanied by a declaration stating

facts showing reasonable and good faith attempts toarrange for the examination by agreement (CCP §2032(d)).

The California statute permits the attorney for the exami-nee or that attorney’s authorized representative to attend and observe a physical examination conducted for discov-ery purposes and to record stenographically or by audiotape any words spoken to or by the examinee during anyphase of the examination. The observer cannot participatein or disrupt the examination. However, they can terminatethe exam if unauthorized tests are conducted. As a parale-gal, you might be asked to do this. The right to observe anexamination does not normally extend to mental examina-tions. However, the examiner and examinee have the rightto record a mental examination on audio tape. You mightbe asked to arrange this (CCP § 2032(g)).

SANCTIONS

Sanctions imposed for noncompliance with the orders re-garding physical and mental examinations are the same fornoncompliance with any discovery order (CCP § 2023).

DISTRIBUTING THE MEDICAL RECORDS

California law permits the party being examined to de-mand a copy of the medical report resulting from that ex-amination, as well as any reports from prior examinationsfor the same condition. In exchange, the party being ex-amined must give copies of all of its medical reports re-garding the same condition (CCP § 2032(h), (i), and (j)).

THE PARALEGAL’S ROLE IN PHYSICAL AND MENTAL EXAMINATIONS

CHAPTER 12Request for Documents

KEY POINTS

• CCP § 2031 regulates the demand for productionand inspection of documents and things in Cali-fornia.

• The demand for production can be used againstparties only in California.

• Special provisions apply when consumer or em-ployment records are the object of discovery.

• Documents can sometimes be discovered throughuse of depositions or interrogatories.

A request or demand to inspect documents, tangiblethings, land or other property in the possession or underthe control, of a party is controlled by CCP § 2031. Just as

in the federal court, this is not the only method of obtain-ing documents. Documents can also be obtained throughthe deposition process as was discussed in Chapter 9 (see

THE REQUEST FOR DOCUMENTS


CCP §§ 2020 and 2025). If documents are in possession ofa nonparty, the deposition is the only method available. Attimes, documents can also be produced in response to in-terrogatories, as was discussed in Chapter 10 (see CCP §2030(f)(2)).

REQUEST FOR DOCUMENTS TO PARTIES

In state actions the request for inspection of documents isreferred to as a demand for inspection of documents. Ab-sent a court order to the contrary, the plaintiff can serve ademand for production of documents ten days after serviceof the summons or appearance by the defendant,whichever is first. A defendant can serve the demand atany time (CCP § 2031(b)). The time for production of

documents cannot be less than thirty days after service ofthe demand. A court may shorten or lengthen any of thesetimes.

ORGANIZATION OF THE DOCUMENTS

The documents may be produced either as they are kept inthe usual course of business or according to the categoriesspecified in the document request (CCP § 2031(g)(1). TheCalifornia code further provides that any data compila-tions must be put into reasonable usable form. For exam-ple, if information is stored on a computer disk that re-quires a password to access, production of the disk withoutthe password would not be in compliance with the code.


A party seeking to protect documents from being in-spected may do so in one of two ways, by serving a written objection to the demand (CCP § 2031(g)) or by making amotion in court for a protective order (CCP § 2031(f)). Asin federal court, the basic objections are that the docu-ments are irrelevant or privileged. A party can also objecton the basis that the production of documents causes

annoyance, embarrassment, oppression, or undue burdenand expense (CCP § 2031(f)). In addition to the privilegesmentioned in the text, an important one to consider inCalifornia is the one relating to trade secrets or other con-fidential research, development or commercial informa-tion. Protective orders can also relate to the time, place, orconditions of inspection.

PROTECTION OF DOCUMENTS

FORM AND CONTENT OF THE DEMAND

The form and content of the demand is set forth in CCP §2031(c). The demand for inspection is usually prepared onpleading paper and bears the same caption as the plead-ings. The name of the document would appear to the rightof the title of the case, i.e., Demand for Inspection of Doc-uments. In the first paragraph, immediately below the titleof the case must appear the identity of the demandingparty, the set number and the identity of the respondingparty. The introductory paragraph also describes when andwhere the documents are to be produced for inspectionand copying. A demand for inspection may or may not in-clude definitions or instructions. The demand should alsoinclude the date for production (which must be at leastthirty days after the date of service of the demand), as wellas a description of any tests intended to be conducted onthe items to be produced. The demanding party must alsodisclose if the item will be altered or destroyed.

Each document demanded must be separately setforth and the documents specifically described by individ-

ual item or category. Exhibit 12-1 is an example of a de-mand for production of documents that might be used inthe Dieter case, were the action in state court.

SERVICE OF THE DEMAND

Copies of the demand for inspection must be served on allparties to the action. The original demand and proof of ser-vice and the original response are not filed in court but areretained by the demanding party until six months after thefinal disposition of the case (CCP § 2031(d) and (k)).

CONSUMER AND EMPLOYMENT RECORDS

If consumer or employment records are the subject of thedemand, the consumer or employee is entitled to prior no-tice of the demand in compliance with CCP § 1985.3 and1985.6. Proof of this notice must be served with the de-mand to produce (see Chapter 9).

REQUESTING THE PRODUCTION OF DOCUMENTS

California law requires a written response to the demandfor production or inspection of documents, in addition tothe actual production. The written response, which is to be

served within thirty days of service of the demand, indi-cates whether the responding party will comply with thedemand, will comply in part, cannot comply, or objects

RESPONDING TO A REQUEST FOR DOCUMENTS


CHAPTER 12 Request for Documents 87

Giacomo StriuliCalif. State Bar No. 12121Striuli, Grazak, and UsalisAttorneys at Law 2233 Hamilton AvenueMenlo Park, California (415) 555-1212

Attorney for Plaintiff, Dieter Financial Bank

IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SAN FRANCISCO

DIETER FINANCIAL BANK, )Plaintiff, ) No. 77976

)) DEMAND FOR PRODUCTION

vs. ) OF DOCUMENTS ) )

HAUBRICH INDUSTRIES, et al., ) Defendants. )

______________________________

DEMANDING PARTY: Plaintiff, DIETER FINANCIAL BANK

RESPONDING PARTY: Defendant, HAUBRICH INDUSTRIES

SET NUMBER: ONE

Pursuant to section 2031 of the Code of Civil Procedure, plaintiff Dieter Financial Bank de-

mands that defendant Haubrich Industries produce the documents described below on De-

cember 15, 2000, at 10:00 a.m. at the offices of Striuli, Grazak, and Usalis, Attorneys at Law,

2233 Hamilton Avenue, Menlo Park, California.

DEFINITIONS AND INSTRUCTIONS(as set forth in Figure 12-3 in text)

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Exhibit 12-1 Demand for Production of Documents

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(continued )



DOCUMENTS REQUESTED(as set forth in Figure 12-3 in text)

Dated: September 29, 2004

Striuli, Grazak, and Usalis

BY______________________________Giacomo Striuli Attorney for Plaintiff

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Exhibit 12-1 Demand for Production of Documents (continued)

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(CCP § 2031(g)). If the responding party states that he orshe is unable to comply, the response must affirm that adiligent search and reasonable inquiry has been made in aneffort to comply with the demand. The responding partymust also specify whether the inability to comply is be-cause the item never existed, has been destroyed, lost, mis-placed, or stolen, or has never been, or is no longer in thepossession, custody, or control of the responding party.Furthermore if the document is known or believed to be inthe possession of another person, that person’s name andaddress must be given. If a party objects to any demand,the response must identify with particularity the documentto which an objection is being made and the specificground for the objection (CCP § 2031(g)).

FORMAT OF RESPONSE

The format of the response resembles that of the demand,retaining the same caption. Each statement of compliance,each representation and each objection must bear the samenumber and be in the same sequence as the correspondingitem in the demand. The text of the demand need not be re-peated (CCP § 2031(g)). The response is signed underoath by the party to whom it is directed. If the responsecontains only objections, it can be signed by the attorneyfor the party.

MOTIONS TO COMPEL REGARDING THEWRITTEN RESPONSE

If no written response is made to the demand for inspec-tion within thirty days, the demanding party can make amotion to compel that response under CCP § 2031(l) andRule 335 of the Rules of Court. By failing to make atimely response, the responding party may lose the right toobject to any demand unless a court excuses that failure to

CHAPTER 12 Addendum 89

respond. Motions in respect to the written response canalso be made on the following grounds:

1. The written response indicates that compliancewill be incomplete;

2. The written response contains a representation ofinability to comply that is inadequate, incomplete,or evasive;

3. The written response contains objections that arewithout merit or are too general.

In such cases, the demanding party moves for an ordercompelling further response. Notice of this type of motionmust be given within forty-five days of service of the re-sponse unless the parties have stipulated in writing to an-other date (CCP § 2031(m)).

MOTIONS IN RESPECT TO THE PRODUCTION

If a party fails to permit inspection of the documents in ac-cordance with the written response that was served, the de-manding party can make a motion to compel complianceunder CCP § 2031(n).

FORMAT OF MOTIONS TO COMPEL

Motions to compel are regulated by the sections of the codethat regulate motions in general ((CCP § 1003 et seq. andRules of Court, Rules 311-324.5). Rule 335 of the Califor-nia Rules of Court also regulates the format of motions tocompel. The motion consists of a notice of motion, sup-porting declarations (which must include a declaration thatthe attorneys have tried to resolve the matter) and a memo-randum of points and authorities. In addition, Rule 335 re-quires a separate document setting forth each item or cate-gory of items requested, question, or document to whichfurther response or production is requested, and the factualand legal basis for requiring an additional response.

CHAPTER 12Addendum

INSPECTION OF PROPERTY

CCP § 2031 permits not only the inspection and copyingof documents, but also authorizes inspection of tangiblethings, land, or other property in the possession, custody,or control of a party. The procedures used for demandinginspection of real or personal property are identical to theprocedure for demanding inspection of documents. In

addition to inspecting the property, a party may also be al-lowed to measure, survey, photograph, test, or sample theland or property or any designated object or operation onit (CCP § 2031(a)(2)). In the demand to inspect, the de-manding parties must specify any activity they plan onconducting on the property and whether that activity will


permanently alter or destroy the thing involved. (CCP §2031(c)(4)) If the responding party does not agree to the

activity, they must either object or make a motion for aprotective order (CCP § 2031(f) and (g)).


CHAPTER 13Request for Admissions

KEY POINTS

• CCP § 2033 regulates requests for admissions inCalifornia.

• Matters admitted are deemed proven for trial.

• Failure to respond to requests for admissionsresults in the admissions being deemed admittedonly if the requesting party makes an appropriatemotion.

THE REQUEST FOR ADMISSIONS

In California, requests for admissions are regulated byCCP § 2033, which is similar to the federal rule regulatingrequests for admissions.

Requests for admissions can be served by the plaintiffany time that is ten days after service of the summons onor appearance by that party. The defendant can serve re-quests at any time (CCP § 2033(b)). Like all discovery re-quests in California, the original requests for admissionsand responses are not filed in court. Rather, they are re-tained by the propounding party until six months after thefinal disposition of the case (CCP § 2033(j)).

The number of requests for admissions, except forthose relating to the genuineness of a document, is limited.A party has a right to request admissions to thirty-fivematters. The thirty-five requests need not be in the sameset of requests. As with interrogatories, if a party wishes torequest additional admissions, that party may do so pro-vided that a declaration for additional discovery is servedalong with the request for admissions. The respondingparty must then either respond to the additional requests ormove for a protective order (CCP § 2033(c)). The numberof requests for admission of the genuineness of documentsis not limited except as justice requires to protect fromunwarranted annoyance, embarrassment, oppression, orundue burden and expense. If the case is a limited civilcase, under the rules of economic litigation then the num-ber is further limited. The total combined number of inter-rogatories, requests for admissions, and demands to in-spect or produce cannot exceed thirty-five (CCP § 94)).

USE OF THE REQUEST FOR ADMISSIONS

To make requests for admissions a more effective discov-ery tool, they are often used in conjunction with interroga-

tories. Interrogatories can be sent either with the requestfor admissions or as a follow up, asking the party to stateall facts upon which they based any denial to a request foradmissions. Since this question is included in the JudicialCouncil form interrogatories, it need not be counted in thethirty-five question limit. The only limitation in doing thisis that the interrogatory cannot be included in the samedocument as the request for admission. It must be sepa-rately set forth (CCP § 2033(c)(7)).

ADVANTAGES TO THE REQUEST FOR ADMISSIONS

Unless a court orders otherwise, once a matter has beenadmitted by a party it is considered proven for trial (CCP§ 2033(n)). However, in California, the failure of a partyto respond does not automatically result in the matter’sbeing deemed admitted. If the responding party fails torespond to questions, the propounding must make a mo-tion in court to have that matter be deemed admitted. If aproper response to the request for admissions is servedprior to the hearing on the motion, the court will notorder the matters deemed admitted. Even though a re-sponding party can easily defeat such a motion, the codedoes provide for mandatory sanctions against a party orattorney whose failure to respond resulted in the motion.Also, unless the court finds the failure to respond excus-able, the responding party may have waived any rights toobject to questions by failing to respond on time (CCP §2033(k)).


CHAPTER 13 Request for Admissions 91

DRAFTING THE REQUEST FOR ADMISSIONS

JUDICIAL COUNCIL FORM

The Judicial Council has approved a form that can be usedfor requests for admissions. The use of this form is op-tional (see Exhibit 13-1).

FORM AND CONTENT OF THE REQUESTFOR ADMISSIONS

If the Judicial Council form is not used, the form and con-tent of the request is regulated by CCP § 2033(c). The cap-tion and introductory paragraph resemble interrogatoriesand demands for inspection. Immediately below the titleof the case appears the identity of the party requestingthe admissions, the set number and the identity of the re-sponding party.

A request for admissions may contain definitions ofterms. However, the code requires that any specially de-fined term must be typed in capital letters wherever thatterm appears in the document (CCP § 2033(c)(5)). Nopreface or instruction can be included unless it has beenapproved by the Judicial Council.

Each request for admission must be separately setforth and identified by letter or number. Each request mustalso be full and complete in and of itself and cannot con-tain sub-parts, or be compound, conjunctive, or disjunctive(CCP § 2033(c)(4) and (5)). For an example of how therequest for admissions in the text might look if the actionwere in a California court, see Exhibit 13-2.

RESPONDING TO THE REQUEST FOR ADMISSIONS

Unless the parties have agreed otherwise or unless a priorcourt order has been obtained, a response to the request foradmissions must be served on the propounding partywithin thirty days of service of the request (keeping inmind the provisions of CCP § 1013 that all times torespond are extended if service is made by mail). InCalifornia, the response must be signed and verified by theresponding party unless it contains only objections. In thatcase, the attorney for the party should sign the response(CCP § 2033(g)).

ALTERNATIVE RESPONSES TO A REQUESTFOR ADMISSIONS

In California, a party can respond to a request for admis-sions by admitting, denying, failing to admit for lack of in-formation or knowledge, or objecting.

If the responding party lacks information or knowl-edge to respond to a request, the responding party muststate in the answer that a reasonable inquiry concerningthe matter has been made and the information known or

readily obtainable is insufficient to enable that party toadmit the matter.

If an objection is made, the grounds for that objectionshould be stated. If only part of a request is objectionable,the responding party must answer the remainder of therequest (CCP § 2033(f)).

OBJECTIONS TO THE REQUEST FOR ADMISSIONS

The same objections that are available in response to theother discovery techniques are available in response to therequest for admissions. Additionally, just as with inter-rogatories, if a request for admissions contains more thanthirtyfive questions without the necessary declaration foradditional discovery, the responding party need only an-swer the first thirty-five. The responding party can objectto any further questions (CCP § 2033(c)). Since com-pound requests are specifically prohibited in California, anobjection to such a request would be proper (CCP §2033(c)(5)).



Exhibit 13-1 Judicial Council Form Request for Admissions


CHAPTER 13 Request for Admissions 93

KENT, FRIEDMAN, HEDGES, AND COLEAttorneys at Law Calif. State Bar No. 12122 15490 Avenida Royale San Mateo, California (415) 555-1212

Attorney for Plaintiff, Dr. Maria Alvarez

IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SAN MATEO

MARIA ALVAREZ, ) Plaintiff, ) No. 31753

) FIRST SET OF REQUEST ) FOR ADMISSIONS OF TRUTH

vs. ) OF FACTS AND GENUINENESS OF ) DOCUMENTS PROPOUNDED TO ) DEFENDANT WYANDOTT-VON

WYANDOTT-VON MAITLIN, et al., ) MAITLIN AND ERNST WEISSLER Defendants ) BY PLAINTIFF MARIA ALVAREZ

_________________________________

PROPOUNDING PARTY: Plaintiff, MARIA ALVAREZ

RESPONDING PARTY: Defendants, WYANDOTT-VON MAITLIN and ERNSTWEISSLER

SET NUMBER: ONE

Pursuant to section 2033 of the Code of Civil Procedure, plaintiff Maria Alvarez requests

that within 30 days after service of this Request for Admissions, defendants Wyandott-Von

Maitlin and Ernst Weissler admit the truth of the following:

1. That the document labeled Exhibit A and attached hereto was prepared by an officer or

employee of Wyandott during the existence of his or her employment with Wyandott.

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Exhibit 13-2 Request for Admissions

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(continued)



2. That the document labeled Exhibit B and attached hereto was prepared by an officer or


3. That the document labeled Exhibit C and attached hereto was prepared by an officer or


4. That Wyandott is incorporated under the laws of the state of Delaware and has its prin-

cipal place of business in Seattle, Washington.

5. That Wyandott is, and was during the calendar years of 2001–2004, engaged in the man-

ufacture and sale of Biomiocin.

6. That the Food and Drug Administration banned the manufacture and sale of Biomiocin

on or about September 9, 2003.

7. That Biomiocin has not yet been reclassified as a safe drug by the FDA.

Pursuant to section 2033 of the Code of Civil Procedure, plaintiff Maria Alvarez requests

that within 30 days after service of this Request for Admissions, defendants Wyandott-Von

Maitlin and Ernst Weissler admit that the original of each of the following documents, copies of

which are attached, is genuine:

1. Alvarez employee evaluation of September 9, 2003, attached at Exhibit A.

2. Alvarez employee evaluation of October 31, 2003, attached as Exhibit B.

3. Alvarez employee evaluation of January 19, 2004, attached as Exhibit C.

Dated: March 27, 2004 Kent, Friedman, Hedges, and Cole

BY __________________________________

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Exhibit 13-2 Request for Admissions (continued )

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CHAPTER 13 Addendum 95

CHAPTER 13Addendum

MOTIONS REGARDING ADMISSIONS

MOTION FOR PROTECTIVE ORDER

Rather than responding to any request for admissions, theresponding party can immediately move the court for anorder limiting the requests. The court may make any orderthat justice requires to protect a party from unwarrantedannoyance, embarrassment, oppression or undue burdenand expense (CCP § 2033(e)). As with most discovery mo-tions, the court expects the attorneys to try to resolve theirdifferences and a declaration to this effect mustaccompany the motion.

MOTION FOR ORDER THAT MATTERS BEDEEMED ADMITTED

If the responding party fails to serve a timely response, therequesting party can make a motion to have the mattersdeemed admitted. This motion was discussed above.

MOTION TO COMPEL FURTHER RESPONSE

If the response contains incomplete or evasive answers oran objection that is without merit, the requesting party canmake a motion to compel further response. Notice of thismotion must be given with forty-five days of the service of

the response (or later date if agreed in writing by the par-ties). Failure to file a timely motion results in a waiver ofany objections to the response. Again a declaration indi-cating that the attorneys have made an attempt at an infor-mal resolution must be attached to the motion (CCP §2033(l)).

MOTION TO AMEND OR WITHDRAWAN ADMISSION

If the court finds that an admission was the result of mis-take, inadvertence, and excusable neglect and that theparty who obtained the admission will not be substantiallyprejudiced, then the court has the power to allowan amendment or withdrawal of that admission (CCP§ 2033(m)).

MOTION TO RECOVER EXPENSES INCURREDIN PROVING MATTERS NOT ADMITTED

If a party denies a matter in a request for admissions andthat matter is proven at trial, the court has the power toaward the cost of proving the matter denied, includingattorneys’ fees (CCP § 2033(o)).
