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general / Discovery

Introduction to civil discovery

By Patricia M. Lucas and Gary Nadler

The objective of this article and accompanying self-assessment test is to provide bench officers and lawyers with an introduction to California civil discovery. By reading the article and taking the accompanying self-study test, readers will learn about the different discovery methods available, the broad scope of civil discovery, the permissibility of "fishing expeditions," and the role of admissibility of evidence in determining whether discovery is available.

Discovery Methods

California gives litigants a wide variety of discovery tools. Which one they decide to use will depend on the nature of the case and the resources a party will want to invest in litigating the case.

Code of Civil Procedure (CCP) Section 2019.010 provides:

[A]ny party may obtain discovery by one or more of the following methods:

(1) Oral and written depositions. [CCP Sections 2025.010 et seq., 2028.010 et seq.]

(2) Interrogatories to a party. [CCP Section 2030.010 et seq.]

(3) Inspections of documents, things, and places. [CCP Section 2031.210 et seq.]

(4) Physical and mental examinations. [CCP Section 2032.010 et seq.]

(5) Requests for admissions. [CCP Section 2033.010 et seq.]

(6) Simultaneous exchanges of expert trial witness information. [CCP Section

2034.410 et seq.]

Scope of Discovery in General

CCP Section 2017.010 provides as follows: "[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property."

The phrase "subject matter" does not lend itself to precise definition. It is broader than relevancy to the issues, which is the trial standard for admissibility. Laddon v. Superior Court, 167 Cal. App. 2d 391 (1959). "The 'expansive scope of discovery' is a deliberate attempt to 'take the "game" element out of trial preparation' and to 'do away "with the sporting theory of litigation - namely, surprise at the trial.'" Greyhound Corp. v. Superior Court, 56 Cal. 2d 355 (1961) (citations omitted); see also Garamendi v. Golden Eagle Ins. Co., 116 Cal. App. 4th 694 (2004) (discovery process is "designed to eliminate the element of surprise").

One key legislative purpose of the discovery statutes is "to educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial." Emerson Electric Co. v. Superior Court, 16 Cal. 4th 1101 (1997). The discovery procedures are also "designed to minimize the opportunities for fabrication and forgetfulness." Glenfed Development Corp. v. Superior Court, 53 Cal. App. 4th 1113 (1997).

Consistent with these purposes, the California Supreme Court in Greyhound stated that discovery statutes are to be construed broadly in favor of disclosure, so as to uphold the right to discovery whenever possible. "Matters sought are properly discoverable if they will aid in a party's preparation for trial." Forthmann v. Boyer, 97 Cal. App. 4th 977 (2002); Puerto v. Superior Court, 158 Cal. App. 4th 1242 (2008).

For the purposes of discovery, information is "relevant to the subject matter" if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. See, e.g., Gonzalez v. Superior Court, 33 Cal. App. 4th 1539 (1995); Lipton v. Superior Court, 48 Cal. App. 4th 1599 (1996). Further, it is clear that these rules are to be applied liberally in favor of discovery. In Colonial Life & Accident Insurance Co. v. Superior Court, 31 Cal. 3d 785 (1982), the Supreme Court noted that the relevance of the subject matter standard must be reasonably applied in accordance with the liberal policies underlying the discovery procedures, and that doubts as to relevance should generally be resolved in favor of permitting discovery. Lipton found the extent of the pertinent subject matter can vary with the size and complexity of the particular case and the "scope of permissible discovery is one of reason, logic and common sense."

As the Court of Appeal explained in Norton v. Superior Court, 24 Cal. App. 4th 1750 (1994): "In accordance with the liberal policies underlying the discovery procedures, California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. [Citations.] As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. [Citation.] Furthermore, California's liberal approach to permissible discovery generally has led the courts to resolve any doubt in favor of permitting discovery. [Citation.] In doing so, the courts have taken the view if an error is made in ruling on a discovery motion, it is better that it be made in favor of granting discovery of the nondiscoverable rather than denying discovery of information vital to preparation or presentation of the party's case or to efficacious settlement of the dispute. [Citations.] The courts have also taken the view that wherever possible objections to discovery should be resolved by protective orders addressing the specific harm shown by the respondent as opposed to a more general attack on the 'relevancy' of information the proponent seeks to discover."

Fishing Expeditions

Greyhound held the phrase "fishing expedition" "is intended to mean that the party seeking discovery does not know precisely what he seeks, but is attempting to obtain all possible information for the purposes of his case." "[A]ppellate courts have frequently stated 'fishing expeditions' are permissible in discovery." Calcor Space Facility Inc. v. Superior Court, 53 Cal. App. 4th 216 (1997). "The[] rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases." Gonzalez, 33 Cal. App. 4th 1539. The Supreme Court in Greyhound, the seminal case in California civil discovery, noted that although fishing may be improper or abused in some cases, that "is not of itself an indictment of the fishing expedition per se."

Nonetheless, in Calcor Space Facility, the Court of Appeal explained that even "early in the development of our discovery law [the court] recognized the limits on such 'fishing expeditions,'" noting that in Greyhound "the court gave examples of improper 'fishing' [including]: 'The method of "fishing" may be, in a particular case, entirely improper (i.e., insufficient identification of the requested information to acquaint the other party with the nature of information desired, attempt to place the burden and cost of supplying information equally available to both solely upon the adversary, placing more burden upon the adversary than the value of the information warrants etc.). Such improper methods of "fishing" may be (and should be) controlled by the trial court under the powers granted to it by the statute.' [Citation.] The concerns for avoiding undue burdens on the 'adversary' in the litigation expressed in Greyhound apply with even more weight to a nonparty."

In sum, although discovery may sometimes be likened to a fishing expedition, "as with a fishing license, the rules of discovery do not allow unrestricted access to all species of information." Tylo v. Superior Court, 55 Cal. App. 4th 1379 (1997). Meaning, a court may exercise its power overseeing discovery to make sure it does not become overly intrusive and overbroad.

The Role of Admissibility

Admissibility is not the test for purposes of discovery. Davies v. Superior Court, 36 Cal. 3d 291 (1984). Material falls within the broad definition of "relevant to the subject matter" under CCP Section 2017.010, and is thus discoverable, as held by Gonzalez, "if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement." It can thus constitute error to consider the admissibility of a document sought in discovery to determine whether it is subject to production. See Volkswagen v. Superior Court, 139 Cal. App. 4th 1481 (2006).

As explained by the Court of Appeal in Volkswagen, admissibility is an issue under certain circumstances: "Although admissibility is not a prerequisite to discoverability, a heightened standard of discovery may be justified when dealing with information which, though not privileged, is sensitive or confidential. (See, e.g., Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856, 143 Cal.Rptr. 695, 574 P.2d 766 [establishing a balancing test to protect private information such as associational privacy and medical histories that do not relate to conditions at issue in litigation]; Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 125 Cal.Rptr. 553, 542 P.2d 977 [requiring special procedures to protect third-parties' bank records]; Boler v. Superior Court (1987) 201 Cal.App.3d 467, 472, 247 Cal.Rptr. 185 [requiring a showing of 'direct relevance' to prevent searching for marginally pertinent sensitive information].)"

However, as Volkswagen further noted, "the cases that have approved a heightened standard are concerned primarily with protecting particularly sensitive matters, such as sexual or psychiatric histories, or the privacy interests of third parties. (See, e.g., Hinshaw, Winkler, Draa, Marsh & Still v. Superior Court, 51 Cal.App.4th 233 (1996) [settlement agreement of third parties].)" Pursuant to Volkswagen, when evidence sought is not confidential and is relevant, heightened protection is unwarranted.

Patricia M. Lucas is a judge of the Santa Clara County Superior Court.

Gary Nadler is a judge of the Sonoma County Superior Court.

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