Litigation

California Discovery Motions -- This Just In: Judges and Attorneys Have to Follow the Law

By Bruce Nye

    As I've shown in my White Paper on discovery, California has a remarkably lengthy and convoluted set of discovery procedures, which differ substantially from the Federal Rules.  Our discovery act addresses in a ponderous set of about 192 statutory sections (Code of Civil Procedure sections 2016.010 - 2034.730) that which in the Federal Courts is dispensed with in twelve rules (FRCP 26 - 37). 

    Despite this level of statutory detail, and despite some fairly strict rules that, for example, close discovery thirty days before the first trial date and require discovery motions to be heard no later than fifteen days before the first trial date (CCP section 2024.020), there is a tendency among some judges, particularly in the smaller and more rural counties, to figure that they can't go wrong if they err on the side of allowing discovery.  And since our Courts of Appeal hear very few discovery cases and publish decisions in even fewer, there is often very little the parties can do about it.

    But here is some fresh ammo for parties and litigants with an interest in strict application of the rules: Felton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (August 19, 2008) ___ Cal.App.4th ___.  In the published portions of this forty-five page magnum opus, the Court of Appeal holds that the Discovery Act means what it says:

• The last day to have a discovery motion heard is fifteen days before trial  (CCP section 2024.020(a));
• The trial court cannot extend the time for such a motion to be heard (presumably in the absence of a stipulation of the parties) unless one side makes a motion  (CCP section 2024.050(a)); 
• Once the motion is made, the court must exercise its discretion considering various factors, including but not limited to "[t]he necessity and the reasons for the discovery" and [t]he diligence or lack of diligence of the party seeking the hearing of a discovery motion and the reasons that . . . the discovery motion was not heard earlier"  (CCP sections 2024.050(a) and (b)(1), (2));  and
• If the trial court allows a discovery motion after the cut-off without a motion specifically seeking the tardy discovery motion, or without considering the appropriate factors, it is an abuse of discretion and reversible on a showing of prejudice.

   This powerful and unambiguous limit on the trial court's power should apply not only to the motions cut-off, but to the thirty day discovery cut-off itself and to the similar cut-offs for expert depositions (15 days before trial, per CCP section 2024.030) and for hearing expert motions  (ten days before trial per CCP section 2024.030).

Full post as published by CalBizLit on August 19, 2008 (boomark / email).