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DISCOVERY

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.

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DISCOVERY

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  1. DISCOVERY

  2. 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

  3. 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

  4. What can be “discovered”? • Any information that is RELEVANT • And admissible • But not a “fishing expedition”!

  5. 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

  6. 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

  7. 35 questions • C.C.P. Section 94 • Limited to a total of 35 items of discovery • Be careful, sub-parts may count as parts!

  8. 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.

  9. 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 …

  10. Need more? • File a motion!

  11. 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)

  12. Case Questionnaire • Don’t ask what you can find out without asking! • for Limited Civil Cases • DISC-010

  13. DISC-004 • http://www.courts.ca.gov/documents/disc004.pdf • Form Interrogatories, Economic Civil Cases

  14. 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?

  15. Word Origin & History subpoena 1422, sub pena, sub poena  "under penalty,"  from L. (see penal).  The verb is attested from 1640.

  16. 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.

  17. 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

  18. 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….

  19. Depositions • The preparation details: Date, Place, Time, Service, Reporter… • Prep of questions… • Prep of witness… • Prep of objections… • Your typical job: Summarizing!!!

  20. Request for Physical Examination • Uncommon… • Relevance? • Doctor, Psychiatrist, Dentist, etc…

  21. 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

  22. Practice Test!

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