DISCOVERY
Types of Discovery
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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/disc0
04.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.
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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/disc0
20.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!