DISCOVERY

Types of Discovery

• Depositions

• Interrogatories

• Requests for Admissions

• Subpoena duces tecum

• Request for Physical Examination

• Request for Witness List

• Requests for Production, docs or things

To file or Not to File?

• Don’t file discovery documents with the court. – Court “supervised” but not “monitored”– Serve opposing parties, keep copies and

proofs of service

What can be “discovered”?

• Any information that is RELEVANT– And admissible

• But not a “fishing expedition”!

Rules?

• Requests for Admissions– C.C.P. Sections 2033.010 through 2033.080

• Interrogatories– C.C.P. Sections 2030.010 through 2030.410

• Depositions– C.C.P. Sections 2025.010 through 2027.010

Time Limits

• Discovery must be completed 30 days before trial dates (C.C.P. 2024.010)

• Must wait to serve interrogatories: 10 days after service of summons

• Notice of deposition 20 days after service of summons

• Depositions may take place 10 days after service of notice

35 questions

• C.C.P. Section 94 – Limited to a total of 35 items of discovery

• Be careful, sub-parts may count as parts!

Section 94

.... as to each adverse party, a party may use the following forms of discovery: (a) Any combination of 35 of the following:

(1) Interrogatories (with no subparts) under Chapter 13 (commencing with Section 2030.010) of Title 4 of Part 4. (2) Demands to produce documents or things under Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4.

94 continued

• (3) Requests for admission (with no subparts) … – (b) One oral or written deposition …. . For purposes of this

subdivision, a deposition of an organization shall be treated as a single deposition even though more than one person may be designated or required to testify ...

– (c) Any party may serve on any person a deposition subpoena duces tecum requiring the person served to mail copies of documents, books, or records to the party's counsel at a specified address, along with an affidavit … The party who issued the deposition subpoena shall mail a copy of the response to any other party who tenders the reasonable cost of copying it.

– (d) Physical and mental examinations … – (e) The identity of expert witnesses …

Need more?

• File a motion!

Written Interrogatories

• Easiest form of discovery if case is simple and issues common…– Use FORM INTERROGATORIES DISC-004

• But…otherwise, you may have to draft your own questions!– …and define your own terms (see form)

Case Questionnaire

• Don’t ask what you can find out without asking! – for Limited Civil Cases

• DISC-010

DISC-004

• http://www.courts.ca.gov/documents/disc004.pdf

– Form Interrogatories, Economic Civil Cases

Request for Production

• Documents

• Or… Things

– Maybe they will just show it to you?– Usually good to wait until after interrogs are

returned before sending these? Why?

Word Origin & History

subpoena 1422, sub pena, sub poena

 "under penalty," 

from L. (see penal). 

The verb is attested from 1640.

Subpoena Duces Tecum

• I don’t have it. He doesn’t have it. Who has it?• “Bring with you”

– Documents or things in the possession, custody, or control of someone who is NOT a party to the lawsuit.

• Doctor• Mechanic • Realtor• Employer• Etc.

Request for Admissions

• Usually Interrogatories are enough, but…• For specific items, use Form DISC-020• Example:

– “The windshield wipers on your 1997 Mazda Miata were not in use at the time of the collision with plaintiff’s vehicle.”

• http://www.courts.ca.gov/documents/disc020.pdf

Request for Admissions…

• OR… attach a copy of a document that you want the other side to admit is genuine.– bill of sale– Photograph– Hand-written receipt, diary, ledger, etc…– Or….

Depositions

• The preparation details: Date, Place, Time, Service, Reporter…

• Prep of questions…

• Prep of witness…

• Prep of objections…

• Your typical job: Summarizing!!!

Request for Physical Examination

• Uncommon…– Relevance?

• Doctor, Psychiatrist, Dentist, etc…

What if they won’t…

• Must write letter requesting compliance first… Court demands attempts to resolve matter informally first.

• If no success, file a Motion to Compel– C.C.P. Section 93(e) and 2023.010

Practice Test!