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general / Discovery

Appointment of discovery referees

The objective of this article and accompanying self-assessment test is to provide bench officers and lawyers with an overview of appointing civil discovery referees. By reading the article and taking the accompanying self-study test, readers will learn about the source of a court’s authority to appoint a referee, the scope of referee appointment orders, and referees’ powers.

Overview

“A reference by the trial court involves the sending of a pending action or proceeding, or some issue raised therein, to a referee for hearing, determination and report back to the court.” Jovine v. FHP, Inc., 64 Cal. App. 4th 1506 (1998). A referee can be appointed by the court to deal solely with issues pertaining to discovery, and to report his or her findings back to the court. Code of Civil Procedure Section 639(a)(5).

A referee may be appointed pursuant to agreement of the parties. CCP Section 638. The appointment may also be ordered upon noticed motion, without both parties’ agreement. CCP Section 639; see also California Rules of Court, Rules 3.902, 3.920.

Appointment of a discovery referee is appropriate in a complex case, where there are multiple issues that must be resolved in the court ruling on discovery issues. On the other hand, a court would abuse its discretion if it appointed a referee to resolve all discovery disputes, however simplistic, in a routine case where there is no legitimate reason for the court to refuse to hear and decide run-of-the-mill discovery motions itself. See Hood v. Superior Court, 72 Cal. App. 4th 446 (1999). Courts must keep in mind that “[t]he power to impose a reference on nonconsenting parties and require them to pay for easing the court’s workload is a powerful tool in the court’s arsenal: it permits the court to avoid massive paperwork, clear crowded dockets of repetitive and snarly motions, and can induce parties to take a more reasonable approach to discovery to keep costs from mounting.” Taggares v. Superior Court, 62 Cal. App. 4th 94 (1998). On the other hand, under Taggares, a reference must not “be used over the parties’ objection in routine, pro forma, uncomplicated matters simply for expediency or a distaste for discovery resolution.”

An appointment is never mandatory. The court has discretion to refuse to enforce a pre-dispute agreement providing that a referee may hear and decide certain contested issues, even if the agreement is otherwise valid. Tarrant Bell Property, LLC v. Superior Court, 51 Cal. 4th 538 (2011).

Appropriateness of Appointment

If the appointment of the referee is pursuant to the parties’ agreement, a written stipulation or motion for the appointment (if a contract provides for the referee’s appointment), must be presented to the court. CCP Section 638; CRC Rule 3.901(a). The stipulation or motion must state whether the reference covers all or just specified issues, and whether the referee will be privately compensated. It must also describe any court facilities which are requested to be used, as well as explain why it would be in furtherance of justice to use the facilities, and if a particular referee has been selected, provide the referee’s certification that he or she consents to serve. CRC Rule 3.901(b).

If the parties do not present an agreement, or do not agree that a referee should be appointed, a referee may still be appointed. The appointment in such an instance would be done upon motion of the court or any party, where necessary to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon. CCP Section 639(a)(5); CRC Rule 3.920.

Appointment of a referee would be inappropriate to resolve routine and uncomplicated issues. But, such an appointment would also be inappropriate for “[r]esolution of legal issues underlying discovery requests which are complex, unsettled or of first impression,” because these issues “lie peculiarly within the purview of the court.” Taggares.

Taggares indicated that, unless both parties have agreed to a reference, a court should not make blanket orders directing all discovery motions to a discovery referee except in an unusual case where a majority of factors favoring reference are present. The factors to consider include: “(1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.”

“[W]here there are parties to the litigation who are not involved in the[] particular discovery proceedings, but who will be affected by the final rulings, it is the trial court which is best able to determine who these parties are and to what extent they may be affected, and best ensure they are properly noticed and their interests protected.” Taggares. Hence, Taggares determined such a factor will always militate against appointing a discovery referee.

Mechanics of Appointment

The court can appoint up to three referees agreed upon by the parties to decide issues. CCP Section 640(a). If the parties do not agree on who should be appointed, each party may submit the names of up to three nominees for the court to select a referee. CCP Section 640(b).

A party can disqualify a person appointed as a discovery referee by using the same general procedure employed in filing an affidavit to peremptorily disqualify a bench officer under CCP Section 170.6. See CCP Section 639(b). Such an affidavit must be filed “Within 10 days after notice of the appointment, or if the party has not yet appeared in the action, a motion shall be made within 10 days after the appearance, if a discovery referee has been appointed for all discovery purposes,” or “At least five days before the date set for hearing, if the referee assigned is known at least 10 days before the date set for hearing and the discovery referee has been assigned only for limited discovery purposes.” CCP Section 639(b)(A), (B). A party is entitled to only one affidavit per action, regardless whether it is exercised against a trial court bench officer or discovery referee. Baugh v. Garl, 137 Cal. App. 4th 737 (2006).

An order appointing a discovery referee must indicate whether the referee is being appointed for all discovery purposes in the action. CCP Section 639(c). Orders appointing referees must also include (1) a statement of the reason the referee is being appointed; (2) the exceptional circumstances requiring the reference; (3) the subject matter included in the reference; (4) the name, business address, and telephone number of the referee; and (5) the maximum hourly rate the referee may charge and, at the request of any party, the maximum number of hours for which the referee may charge. CCP Section 639(d).

In determining the propriety of a reference, the court must make specific findings, including either that no party has established an economic inability to pay a pro rata share of the referee’s fees, or that one or more parties has established an economic inability to pay a pro rata share of the referee’s fees and another party has agreed voluntarily to pay that additional share of the fees. CCP Section 639(d)(6). The court’s order appointing the referee must also state the court’s findings with respect to the economic ability to pay a pro rata share of the referee’s fees. CCP Section 639(d)(6)(A).

In making the ability-to-pay determination, the financial ability of counsel to pay the fees must be disregarded. CCP Section 639(d)(6)(B). The court may order the parties to pay the referee’s fees in any manner that is “fair and reasonable,” including an apportionment of the fees among the parties. CCP Section 645.1; CRC Rule 3.922(f). Although counsel may not be ordered to pay for the referee fees, if counsel misused discovery sanctions, fees may still be properly awarded, provided proper notice is provided. Andrews v. Superior Court, 82 Cal. App. 4th 779 (2000).

Referee’s Powers and Duties

Once appointed, pursuant to the court’s appointment order, the referee “is authorized to set the date, time, and place for all hearings determined by the referee to be necessary; direct the issuance of subpoenas; preside over hearings; take evidence; and rule on objections, motions, and other requests made during the course of the hearing.” CRC, Rule 3.922(e).

The referee must certify in writing he or she consents to serve as stated in the appointment order, and is aware and will comply with the Code of Judicial Ethics and the Rules of Court. CRC, Rule 3.924. The referee must also disclose any matter subject to disclosure by the Code of Judicial Ethics, including any personal or professional relationships with the parties or their lawyers and whether the referee is a member of any organization that practices invidious discrimination. CRC, Rule 3.924(b); Cal. Code Judicial Ethics, canon 6, subd. (D)(5).

To the extent the referee will be present at any discovery proceeding, and the proceeding would have been open to the public if held before a judge, then the proceeding before the referee must also be open to the public. CRC, Rule 3.931(a). The referee must file, at the same time as the referee’s certification is filed, “a statement that provides the name, telephone number, e-mail address, and mailing address of a person who may be contacted to obtain information about the date, time, location, and general nature of all hearings scheduled in matters pending before the referee that would be open to the public if held before a judge.” CRC, Rule 3.931(b)(1). The statement may also provide the address of a publicly accessible website at which the referee will maintain a current calendar setting forth the date, time, location, and general nature of any such hearings. CRC, Rule 3.931(b)(2).

“Unless otherwise directed by the court, the referees or commissioner must report their statement of decision in writing to the court within 20 days after the hearing, if any, has been concluded and the matter has been submitted.” CCP Section 643(a). Referees appointed pursuant to the agreement of the parties must report as agreed by the parties and approved by the court. CCP Section 643(b).

Referees appointed by the court without both parties’ consent must file with the court a report that includes a recommendation on the merits of any disputed discovery issue, a statement of the total hours spent and total fees charged by the referee, and the referee’s recommended allocation of payment. CCP Section 643(c).

“In the case of a consensual general reference ..., the decision of the referee ... upon the whole issue must stand as the decision of the court.” CCP Section 644(a). “In the case of all other references, the decision of the referee ... is only advisory. The court may adopt the referee’s recommendations, in whole or in part, after independently considering the referee’s findings and any objections and responses thereto filed with the court.” CCP Section 644(b).

#117

Ben Armistead


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