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California Evidence (4th), Discovery
I. GENERAL PRINCIPLES
A. [§1] Purpose of Discovery.
B. [§2] Modern Discovery Procedures.
C. [§3] Relation to Pretrial Conference.
D. Overview of California Discovery Statutes.
1. [§4] Former Statutes.
2. Civil Discovery Act of 1986.
(a) [§5] Enactment.
(b) [§6] Proceedings Governed by Act.
(c) Construction of Statutes.
(1) [§7] In General.
(2) [§8] Cases Construing Federal Rules.
E. Scope of Discovery.
1. Broad Scope.
(a) [§9] Relevance to Subject Matter.
(b) [§10] Identification of Persons, Things, and Property.
(c) [§11] Insurance Coverage.
2. Restrictions on Obtaining Information.
(a) [§12] Privileges.
(b) Party's Sexual History.
(1) [§13] Plaintiffs.
(2) [§14] All Parties.
(c) [§15] Trade Secrets.
(d) Financial Information.
(1) [§16] In General.
(2) [§17] Relevant to Punitive Damages Claim.
(3) [§18] Third Party's Information.
(e) [§19] Psychotherapeutic Records.
(f) [§20] Settlement Information.
3. Restrictions on Use of Information Obtained.
(a) [§21] No First Amendment Right To Disseminate.
(b) [§22] Return of Documents.
F. Time Limits on Discovery.
1. [§23] In General.
2. [§24] Extensions of Time.
G. Court Implementation of Procedures.
1. [§25] Discretion of Trial Judge.
2. [§26] Limitations on Filing of Papers.
3. [§27] Modification of Procedures by Agreement.
3A. [§27A] (New) Order for Use of Technology.
4. [§28] Motion To Compel.
II. DEPOSITIONS
A. In General.
1. [§29] Nature of Deposition.
2. Whose Deposition May Be Taken.
(a) [§30] General Rule.
(b) [§31] Opposing Counsel.
3. Time When Deposition May Be Taken.
(a) [§32] By Plaintiff.
(b) [§33] By Defendant.
(c) [§34] Continuance.
4. [§35] Before Whom Deposition May Be Taken.
5. [§36] Deposition by Stipulation.
6. [§37] Multiple Depositions.
7. [§38] Costs of Deposition.
B. Oral Depositions.
1. Securing Deponent's Attendance.
(a) Party Deponent.
(1) [§39] Notice Requirements.
(2) [§40] Contents of Notice.
(3) [§41] Party Residing at Distant Place.
(b) Nonparty Deponent.
(1) [§42] Notice and Subpena Requirements.
(2) [§43] Contents of Subpena.
(3) [§44] Issuance and Service of Subpena.
(4) [§45] Nonparty Residing at Distant Place.
(5) [§46] Fees.
(c) [§47] Amount of Notice Required.
(d) [§48] Objections to Procedure To Secure Deponent's Attendance.
2. Securing Production of Documents.
(a) [§49] Notice Requirements.
(b) Business Records for Copying.
(1) [§50] Contents and Service of Subpena.
(2) [§51] Procedure for Copying.
(3) [§52] Personal Consumer Records.
(c) [§53] Attendance, Testimony, and Production of Documents.
(d) [§54] Applicability of Subpena Duces Tecum.
3. Deposition Proceedings.
(a) Attendance of Parties and Witnesses.
(1) [§55] In General.
(2) Failure To Attend.
(aa) [§56] Deposing Party.
(bb) [§57] Party Deponent.
(cc) [§58] Nonparty Deponent.
(b) Protective Orders.
(1) Obtaining Order.
(aa) [§59] Procedure.
(bb) [§60] Permissible Orders.
(2) [§61] Suspension of Deposition.
(3) Illustrations.
(aa) [§62] No Deposition Allowed.
(bb) [§63] Stay of Deposition.
(cc) [§64] Class Actions.
(c) Method of Conducting Examination.
(1) [§65] In General.
(2) [§66] No Legal Contention Questions.
(3) Videotape or Audiotape Recording of Deposition.
(aa) [§67] Statutory Authorization.
(bb) [§68] Procedure.
(cc) [§69] Physical Reenactment.
(4) Deponent's Failure To Answer or Produce.
(aa) [§70] Motion To Compel Answer or Production.
(bb) [§71] Review Following Motion.
(d) Procedures Following Examination.
(1) [§72] Transcription.
(2) [§73] Reading, Hearing, or Viewing.
(3) Correction and Signing.
(aa) [§74] Transcript.
(bb) [§75] Videotape or Audiotape Recording.
(4) [§76] Certification and Sealing.
(5) [§77] Disposition and Retention.
(6) [§78] Public Access to Transcript, Videotape, or Audiotape.
(7) [§79] Intent To Use Videotape or Audiotape at Trial.
4. [§79A] (New) Deposition by Telephone, Videoconference, or Other Remote Electronic Means.
C. Deposition by Written Questions.
1. [§80] Procedure.
2. [§81] Objections.
3. [§82] Motion for Protective Order.
D. Depositions Taken Outside California.
1. [§83] Statutory Authority.
2. [§84] Deposition Officer.
3. [§85] Securing Deponent's Attendance and Production.
E. [§86] Deposition of California Witness for Out-of-State Proceeding.
III. WRITTEN INTERROGATORIES
A. In General.
1. [§87] Nature and Purpose.
2. [§88] Scope of Inquiry.
B. Initial Interrogatories.
1. [§89] Restrictions on Number of Interrogatories.
2. Form.
(a) [§90] Statutory Requirements.
(b) [§91] Judicial Council Forms.
3. [§92] Service.
4. [§93] Filing and Retention.
C. [§94] Further Interrogatories.
D. Responses.
1. In General.
(a) [§95] Options.
(b) [§96] Format.
(c) [§97] Timing of Response.
(d) [§98] Effect of Failure To Respond.
2. Answers.
(a) [§99] Required Information.
(b) [§100] Amendment.
(c) [§101] Answer Derived From Writings.
(d) [§102] Use at Trial.
3. Objections.
(a) [§103] In General.
(b) [§104] To Form and Competency.
(c) To Content.
(1) [§105] Legal Contentions.
(2) [§106] Facts Supporting Defenses.
(3) [§107] Facts Supporting Cause of Action.
(4) In Class Action.
(aa) [§108] Interrogatories to Plaintiff and Class Members.
(bb) [§109] Interrogatories to Defendant.
(d) To Oppressive or Burdensome Requests.
(1) [§110] Grounds for Protective Order.
(2) [§111] Partial Discovery Where Answers Would Be Burdensome.
(3) [§112] Information Available to Both Parties.
(4) [§113] Invasion of Constitutional Right.
4. [§114] Motion for Protective Order.
E. Motion To Compel Response.
1. [§115] No Response Given.
2. [§116] Inadequate Response Given.
3. [§117] Review Following Motion To Compel.
IV. INSPECTION OF DOCUMENTS, TANGIBLE THINGS, AND PLACES
A. [§118] Statutory Authorization.
B. Distinctions.
1. Patient's Discovery of Medical Records.
(a) [§119] Pending Action.
(b) [§120] Action Not Pending.
2. [§121] Other Procedures.
C. Scope of Inspection.
1. [§122] In General.
2. Documents.
(a) [§123] Production Required.
(b) [§124] Illustrations of Discoverable Documents.
(c) [§125] Illustrations of Nondiscoverable Documents.
3. [§126] Tangible Things.
4. [§127] Land or Other Property.
D. Procedure for Demanding Inspection.
1. [§128] Form of Demand.
2. [§129] Timing.
3. [§130] Service and Filing.
E. Procedure for Responding to Demand.
1. [§131] Form of Response.
2. [§132] Oath Requirement.
3. [§133] Service and Filing.
4. [§134] Effect of Failure To Respond.
5. Motion for Protective Order.
(a) [§135] Authorization.
(b) [§136] Illustrations.
F. Compelling Inspections.
1. Order Compelling Response.
(a) [§137] No Response Given.
(b) [§138] Inadequate Response Given.
2. [§139] Order Compelling Compliance.
V. PHYSICAL OR MENTAL EXAMINATION
A. Scope of Statute.
1. [§140] Examinee's Condition in Controversy.
2. [§141] Potential Examinees.
3. [§142] No Right to Autopsy.
B. Physical Examination of Personal Injury Plaintiff.
1. [§143] Leave of Court Not Required.
2. [§144] Procedure for Obtaining Examination.
C. Other Physical or Mental Examinations.
1. [§145] Agreement or Leave of Court Required.
2. [§146] Required Showing.
3. [§147] Compelling Examination.
D. Conduct of Examination.
1. [§148] Potential Examiners.
2. [§149] Time and Place of Examination.
3. Who May Attend Examination.
(a) [§150] Physical Examination.
(b) [§151] Mental Examination.
4. Scope of Examination.
(a) [§152] In General.
(b) [§153] Privacy Limitations.
5. [§154] Recording.
E. Reports of Examination.
1. [§155] In General.
2. [§156] Waiver of Privileges.
VI. REQUESTS FOR ADMISSION
A. [§157] Statutory Authority.
B. Making Requests.
1. [§158] Restrictions on Number of Requests.
2. [§159] Timing.
3. [§160] Form and Content.
4. [§161] Service and Retention.
5. [§162] No Warning Requirement.
C. Responses.
1. In General.
(a) [§163] Content.
(b) [§164] Signature and Oath.
(c) [§165] Timing.
(d) [§166] Service and Retention.
2. Answers.
(a) [§167] Options.
(b) [§168] Amendment or Withdrawal.
3. [§169] Objections.
4. [§170] Motion for Protective Order.
5. Effect of Response.
(a) [§171] Admission.
(b) [§172] Failure To Admit.
(c) No Response.
(1) [§173] Waiver of Objection.
(2) Deemed Admission.
(aa) [§174] General Rule.
(bb) [§175] Court's Discretion To Deny Motion for Deemed Admission.
(cc) [§176] Relief From Deemed Admission Order.
(d) [§177] Inadequate Response.
VII. EXCHANGE OF EXPERT WITNESS INFORMATION
A. [§178] Statutory Authority.
B. Procedure.
1. [§179] Demand.
2. [§180] Exchange.
3. [§181] Motion for Protective Order.
C. Witness Lists and Declarations.
1. [§182] Contents of Witness List.
2. Expert Witness Declarations.
(a) [§183] For Whom Necessary.
(b) [§184] Contents.
3. [§185] Preservation of Lists and Declarations.
4. Additions to Lists.
(a) [§186] Supplemental List.
(b) [§187] Augmented List.
D. Deposition of Other Party's Expert.
1. [§188] Applicable Law.
2. [§189] Where Taken.
3. Fees.
(a) [§190] To Whom Owed.
(b) [§191] Amount.
(c) [§192] Variable Fee Schedule.
(d) [§193] Order Setting Compensation.
(e) [§194] Tender of Fee.
4. [§195] Party's Obligation To Produce Expert.
E. Failure To Comply.
1. Exclusion of Testimony.
(a) [§196] Rule.
(b) [§197] Exceptions.
(c) [§198] Illustrations.
2. [§199] Permission To Submit Tardy Information.
VIII. EXCHANGE OF INFORMATION IN CONDEMNATION
A. [§200] Statutory Authorization.
B. Procedure.
1. [§201] Demand.
2. [§202] Date of Exchange.
3. Witness Lists and Valuation Statements.
(a) [§203] Exchange and Deposit.
(b) [§204] Witnesses for Whom Valuation Statement Is Required.
(c) [§205] Contents.
(d) [§206] Additions.
4. Failure To Comply.
(a) [§207] Excusable.
(b) [§208] Inexcusable.
C. [§209] Related Discovery Procedures.
IX. PERPETUATION AND PRESERVATION OF EVIDENCE
A. [§210] Nature of Proceeding.
B. Procedure.
1. Petition.
(a) [§211] Filing Required.
(b) [§212] Form and Content.
(c) [§213] Notice and Service.
2. [§214] Order.
C. Pending Appeal.
1. [§215] Statutory Authority.
2. Procedure.
(a) [§216] Motion.
(b) [§217] Order.
X. SUBPENA DUCES TECUM
A. [§218] Nature and Use.
B. Procedure.
1. [§219] Issuance of Subpena.
2. [§220] Form of Subpena.
3. [§221] Service.
4. Affidavit Requirement.
(a) [§222] In General.
(b) [§223] Conflict With Provisions Governing Deposition Subpenas.
(c) [§224] Specificity.
(d) [§225] Good Cause.
5. [§226] Resisting Subpena.
6. [§227] Enforcing Subpena.
C. Special Notice Requirements.
1. Personal Records of Consumer.
(a) Notice Requirement.
(1) [§228] In General.
(2) [§229] Definitions.
(3) [§230] Exceptions.
(b) Procedure.
(1) [§231] Form of Notice.
(2) [§232] Service of Notice.
(3) [§233] Service of Subpena.
(4) [§234] Authorization or Certificate of Compliance.
(5) [§235] Consumer's Responses.
2. Employment Records.
(a) [§236] Notice Requirement.
(b) Procedure.
(1) [§237] Service of Notice and Subpena.
(2) [§238] Employee's Responses.
XI. MISUSE OF DISCOVERY PROCEDURES
A. [§239] In General.
B. Trial Court Remedies.
1. [§240] In General.
2. [§241] Protective Orders.
C. Remedies in Reviewing Court.
1. [§242] In General.
2. [§243] Certiorari and Habeas Corpus.
3. Prohibition.
(a) [§244] Preventing Contempt Adjudication.
(b) Preventing Discovery Order.
(1) [§245] Availability of Remedy.
(2) [§246] Grounds: Abuse of Discretion.
(3) [§247] Necessity of Important Question.
4. [§248] Mandamus.
XII. SANCTIONS
A. In General.
1. [§249] Availability of Sanctions.
2. [§250] Persons Subject to Sanctions.
3. [§251] Limitations on Court's Power To Impose Sanctions.
B. Types of Sanctions.
1. Monetary Sanction.
(a) [§252] Statutory Authority.
(b) [§253 ] Recovery of Reasonable Expenses.
(c) [§254] Illustrations.
2. [§255] Issue Sanction.
3. [§256] Evidence Sanction.
4. Terminating Sanction.
(a) [§257] Authorization.
(b) Illustrations.
(1) [§258] Sanction Upheld.
(2) [§259] Discretion Abused.
5. Contempt Sanction.
(a) [§260] Authorization.
(b) [§261] Procedure.
(c) [§262] Illustrations.
C. Procedure.
1. [§263] Contents of Motion for Sanctions.
2. [§264] Order Compelling Compliance as Prerequisite to Imposition of Sanctions.
3. [§265] Motion for Reconsideration of Sanctions Order.