CALIFORNIA CODES
CODE OF CIVIL PROCEDURE
SECTION 2016-2036
2016. (a) This article may be cited as the Civil Discovery Act of
1986.
(b) As used in this article:
(1) "Action" includes a civil action and a special proceeding of a
civil nature.
(2) "Court" means the trial court in which the action is pending,
unless otherwise specified.
(3) "Document" and "writing" mean a writing as defined in Section
250 of the Evidence Code.
(c) This article applies to discovery in aid of enforcement of a
money judgment only to the extent provided in Article 1 (commencing
with Section 708.010) of Chapter 6 of Title 9 of Part 2.
2017. (a) Unless otherwise limited by order of the court in
accordance with this article, any 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, tangible thing, or land or other
property.
(b) A party may obtain discovery of the existence and contents of
any agreement under which any insurance carrier may be liable to
satisfy in whole or in part a judgment that may be entered in the
action or to indemnify or reimburse for payments made to satisfy the
judgment. This discovery may include the identity of the carrier and
the nature and limits of the coverage. A party may also obtain
discovery as to whether that insurance carrier is disputing the
agreement's coverage of the claim involved in the action, but not as
to the nature and substance of that dispute. Information concerning
the insurance agreement is not by reason of disclosure admissible in
evidence at trial.
(c) The court shall limit the scope of discovery if it determines
that the burden, expense, or intrusiveness of that discovery clearly
outweighs the likelihood that the information sought will lead to the
discovery of admissible evidence. The court may make this
determination pursuant to a motion for protective order by a party or
other affected person. This motion shall be accompanied by a
declaration stating facts showing a good faith attempt at an informal
resolution of each issue presented by the motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(d) In any civil action alleging conduct that constitutes sexual
harassment, sexual assault, or sexual battery, any party seeking
discovery concerning the plaintiff's sexual conduct with individuals
other than the alleged perpetrator is required to establish specific
facts showing good cause for that discovery, and that the matter
sought to be discovered is relevant to the subject matter of the
action and reasonably calculated to lead to the discovery of
admissible evidence. This showing shall be made by noticed motion
and shall not be made or considered by the court at an ex parte
hearing. This motion shall be accompanied by a declaration stating
facts showing a good faith attempt at an informal resolution of each
issue presented by the motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for discovery, unless it finds that the one subject
to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
(e) (1) Pursuant to noticed motion, a court may enter orders for
the use of technology in conducting discovery in cases designated as
complex pursuant to Section 19 of the Judicial Administration
Standards, cases ordered to be coordinated pursuant to Chapter 3
(commencing with Section 404) of Title 4 of Part 2, or exceptional
cases exempt from case disposition time goals pursuant to Article 5
(commencing with Section 68600) of Chapter 2 of Title 8 of the
Government Code, or cases assigned to Plan 3 pursuant to paragraph
(3) of subdivision (b) of Section 2105 of the California Rules of
Court. In other cases, the parties may stipulate to the entry of
orders for the use of technology in conducting discovery.
(2) An order authorizing that discovery may be made only upon the
express findings of the court or stipulation of the parties that the
procedures adopted in the order meet all of the following criteria:
(A) They promote cost-effective and efficient discovery or motions
relating thereto.
(B) They do not impose or require undue expenditures of time or
money.
(C) They do not create an undue economic burden or hardship on any
person.
(D) They promote open competition among vendors and providers of
services in order to facilitate the highest quality service at the
lowest reasonable cost to the litigants.
(E) They do not require parties or counsel to purchase exceptional
or unnecessary services, hardware, or software.
(3) Pursuant to these orders, discovery may be conducted and
maintained in electronic media and by electronic communication. The
court may enter orders prescribing procedures relating to the use of
electronic technology in conducting discovery, including orders for
the service of requests for discovery and responses, service and
presentation of motions, production, storage, and access to
information in electronic form, and the conduct of discovery in
electronic media. The Judicial Council may promulgate rules,
standards, and guidelines relating to electronic discovery and the
use of such discovery data and documents in court proceedings.
(4) Nothing in this subdivision shall diminish the rights and
duties of the parties regarding discovery, privileges, procedural
rights, or substantive law.
(5) If a service provider is to be used and compensated by the
parties, the court shall appoint the person or organization agreed
upon by the parties and approve the contract agreed upon by the
parties and the service provider. If the parties do not agree on the
selection, each party shall submit to the court up to three nominees
for appointment together with a contract acceptable to the nominee
and the court shall appoint a service provider from among the
nominees. The court may condition this appointment on the acceptance
of modifications in the terms of the contract. If no nominations
are received from any of the parties, the court shall appoint one or
more service providers. Pursuant to noticed motion at any time and
upon a showing of good cause, the court may order the removal of the
service provider or vacate any agreement between the parties and the
service provider, or both, effective as of the date of the order.
The continued service of the service provider shall be subject to
review periodically, as agreed by the parties and the service
provider, or annually if they do not agree. Any disputes involving
the contract or the duties, rights, and obligations of the parties or
service providers may be determined on noticed motion in the action.
(6) Subject to these findings and the purpose of permitting and
encouraging cost-effective and efficient discovery, "technology," as
used in this section, includes, but is not limited to, telephone,
e-mail, CD-ROM, Internet web sites, electronic documents, electronic
document depositories, Internet depositions and storage,
videoconferencing, and other electronic technology that may be used
to improve communication and the discovery process.
(7) Nothing in this subdivision shall be construed to modify the
requirement for use of a stenographic court reporter as provided in
paragraph (1) of subdivision (l) of Section 2025. The rules,
standards, and guidelines adopted pursuant to this subdivision shall
be consistent with the requirement of paragraph (1) of subdivision
(l) of Section 2025 that deposition testimony be taken
stenographically unless the parties agree or the court orders
otherwise.
(8) Nothing in this subdivision shall be construed to modify or
affect in any way the process used for the selection of a
stenographic court reporter.
2018. (a) It is the policy of the state to: (1) preserve the rights
of attorneys to prepare cases for trial with that degree of privacy
necessary to encourage them to prepare their cases thoroughly and to
investigate not only the favorable but the unfavorable aspects of
those cases; and (2) to prevent attorneys from taking undue advantage
of their adversary's industry and efforts.
(b) Subject to subdivision (c), the work product of an attorney is
not discoverable unless the court determines that denial of
discovery will unfairly prejudice the party seeking discovery in
preparing that party's claim or defense or will result in an
injustice.
(c) Any writing that reflects an attorney's impressions,
conclusions, opinions, or legal research or theories shall not be
discoverable under any circumstances.
(d) This section is intended to be a restatement of existing law
relating to protection of work product. It is not intended to expand
or reduce the extent to which work product is discoverable under
existing law in any action. However, when a lawyer is suspected of
knowingly participating in a crime or fraud, there is no protection
of work product under this section in any official investigation by a
law enforcement agency or proceeding or action brought by a public
prosecutor in the name of the People of the State of California if
the services of the lawyer were sought or obtained to enable or aid
anyone to commit or plan to commit a crime or fraud. Nothing in this
section is intended to limit an attorney's ability to request an in
camera hearing as provided for in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
(e) The State Bar may discover the work product of an attorney
against whom disciplinary charges are pending when it is relevant to
issues of breach of duty by the lawyer, subject to applicable client
approval and to a protective order, where requested and for good
cause, to ensure the confidentiality of work product except for its
use by the State Bar in disciplinary investigations and its
consideration under seal in State Bar Court proceedings. For
purposes of this section, whenever a client has initiated a complaint
against an attorney, the requisite client approval shall be deemed
to have been granted.
(f) In an action between an attorney and his or her client or
former client, no work product privilege under this section exists if
the work product is relevant to an issue of breach by the attorney
of a duty to the attorney's client arising out of the attorney-client
relationship.
For purposes of this section, "client" means a client as defined
in Section 951 of the Evidence Code.
2019. (a) Any party may obtain discovery by one or more of the
following methods:
(1) Oral and written depositions.
(2) Interrogatories to a party.
(3) Inspections of documents, things, and places.
(4) Physical and mental examinations.
(5) Requests for admissions.
(6) Simultaneous exchanges of expert trial witness information.
(b) The court shall restrict the frequency or extent of use of
these discovery methods if it determines either of the following:
(1) The discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive.
(2) The selected method of discovery is unduly burdensome or
expensive, taking into account the needs of the case, the amount in
controversy, and the importance of the issues at stake in the
litigation.
The court may make these determinations pursuant to a motion for a
protective order by a party or other affected person. This motion
shall be accompanied by a declaration stating facts showing a good
faith attempt at an informal resolution of each issue presented by
the motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(c) Unless there is a rule of the Judicial Council, or a local
court rule or local uniform written policy to the contrary, the
methods of discovery may be used in any sequence, and the fact that a
party is conducting discovery, whether by deposition or another
method, shall not operate to delay the discovery of any other party.
However, on motion and for good cause shown, the court may establish
the sequence and timing of discovery for the convenience of parties
and witnesses and in the interests of justice.
(d) In any action alleging the misappropriation of a trade secret
under the Uniform Trade Secrets Act (Title 5 (commencing with Section
3426) of Part 1 of Division 4 of the Civil Code), before commencing
discovery relating to the trade secret, the party alleging the
misappropriation shall identify the trade secret with reasonable
particularity subject to any orders that may be appropriate under
Section 3426.5 of the Civil Code.
(e) Section 1013 shall be applicable to any method of discovery or
service of a motion for discovery provided for in this article.
2020. (a) The method for obtaining discovery within the state from
one who is not a party to the action is an oral deposition under
Section 2025, a written deposition under Section 2028, or a
deposition for production of business records and things under
subdivisions (d) and (e). Except as provided in paragraph (1) of
subdivision (h) of Section 2025, the process by which a nonparty is
required to provide discovery is a deposition subpoena. The
deposition subpoena may command any of the following:
(1) Only the attendance and the testimony of the deponent, under
subdivision (c).
(2) Only the production of business records for copying, under
subdivision (d).
(3) Both the attendance and the testimony of the deponent, as well
as the production of business records, other documents, and tangible
things, under subdivision (e).
Except as modified in this section, the provisions of Chapter 2
(commencing with Section 1985), and of Article 4 (commencing with
Section 1560) of Chapter 2 of Division 11 of the Evidence Code, apply
to a deposition subpoena.
(b) The clerk of the court in which the action is pending shall
issue a deposition subpoena signed and sealed, but otherwise in
blank, to a party requesting it, who shall fill it in before service.
In lieu of the court-issued deposition subpoena, an attorney of
record for any party may sign and issue a deposition subpoena; the
deposition subpoena in that case need not be sealed, a copy may be
served on the nonparty, and the attorney may retain the original.
(c) A deposition subpoena that commands only the attendance and
the testimony of the deponent shall specify the time when and the
place where the deponent is commanded to attend for the deposition.
It shall set forth a summary of (1) the nature of a deposition, (2)
the rights and duties of the deponent, and (3) the penalties for
disobedience of a deposition subpoena described in subdivision (h).
If the deposition will be recorded by videotape under paragraph (2)
of subdivision (l) of Section 2025, the deposition subpoena shall
state that it will be recorded in that manner. If the deponent is an
organization, the deposition subpoena shall describe with reasonable
particularity the matters on which examination is requested, and
shall advise that organization of its duty to make the designation of
employees or agents who will attend described in subdivision (d) of
Section 2025.
(d) (1) A deposition subpoena that commands only the production of
business records for copying shall designate the business records to
be produced either by specifically describing each individual item
or by reasonably particularizing each category of item; however,
specific information identifiable only to the deponent's records
system, such as a policy number or the date the consumer interacted
with the witness, shall not be required. This deposition subpoena
need not be accompanied by an affidavit or declaration showing good
cause for the production of the business records designated in it.
It shall be directed to the custodian of those records or another
person qualified to certify the records. It shall command compliance
in accordance with paragraph (4) on a date that is no earlier than
20 days after the issuance, or 15 days after the service, of the
deposition subpoena, whichever date is later.
(2) If, under Section 1985.3 or 1985.6, the one to whom the
deposition subpoena is directed is a witness, and the business
records described in the deposition subpoena are personal records
pertaining to a consumer, the service of the deposition subpoena
shall be accompanied either by a copy of the proof of service of the
notice to the consumer described in subdivision (e) of Section
1985.3, or subdivision (b) of Section 1985.6, as applicable, or by
the consumer's written authorization to release personal records
described in paragraph (2) of subdivision (c) of Section 1985.3, or
paragraph (2) of subdivision (c) of Section 1985.6, as applicable.
(3) The officer for a deposition seeking discovery only of
business records for copying under this subdivision shall be a
professional photocopier registered under Chapter 20 (commencing with
Section 22450) of Division 8 of the Business and Professions Code,
or a person exempted from the registration requirements of that
chapter under Section 22451 of the Business and Professions Code.
This deposition officer shall not be financially interested in the
action, or a relative or employee of any attorney of the parties.
Any objection to the qualifications of the deposition officer is
waived unless made before the date of production or as soon
thereafter as the ground for that objection becomes known or could be
discovered by reasonable diligence.
(4) Unless directed to make the records available for inspection
or copying by the subpoenaing party's attorney or a representative of
that attorney at the witness' business address under subdivision (e)
of Section 1560 of the Evidence Code, the custodian of the records
or other qualified person shall, in person, by messenger, or by mail,
deliver only to the deposition officer specified in the deposition
subpoena (1) a true, legible, and durable copy of the records, and
(2) an affidavit in compliance with Section 1561 of the Evidence
Code. If this delivery is made to the office of the deposition
officer, the records shall be enclosed, sealed, and directed as
described in subdivision (c) of Section 1560 of the Evidence Code.
If this delivery is made at the office of the business whose records
are the subject of the deposition subpoena, the custodian of those
records or other qualified person shall (1) permit the deposition
officer specified in the deposition subpoena to make a copy of the
originals of the designated business records during normal business
hours as defined in subdivision (e) of Section 1560 of the Evidence
Code, or (2) deliver to that deposition officer a true, legible, and
durable copy of the records on receipt of payment in cash or by
check, by or on behalf of the party serving the deposition subpoena,
of the reasonable costs of preparing that copy, and an itemized
statement for the cost of preparation, as determined under
subdivision (b) of Section 1563 of the Evidence Code. This copy need
not be delivered in a sealed envelope. Unless the parties, and if
the records are those of a consumer as defined in Section 1985.3 or
1985.6, the consumer, stipulate to an earlier date, the custodian of
the records shall not deliver to the deposition officer the records
that are the subject of the deposition subpoena prior to the date and
time specified in the deposition subpoena. The following legend
shall appear in boldface type on the deposition subpoena immediately
following the date and time specified for production: "Do not
release the requested records to the deposition officer prior to the
date and time stated above."
(5) Promptly on or after the deposition date and after the receipt
or the making of a copy of business records under this subdivision,
the deposition officer shall provide that copy to the party at whose
instance the deposition subpoena was served, and a copy of those
records to any other party to the action who then or subsequently,
within a period of six months following the settlement of the case,
notifies the deposition officer that the party desires to purchase a
copy of those records.
(6) The provisions of Section 1562 of the Evidence Code concerning
the admissibility of the affidavit of the custodian or other
qualified person apply to a deposition subpoena served under this
subdivision.
(e) A deposition subpoena that commands both the attendance and
the testimony of the deponent, as well as the production of business
records, documents, and tangible things, shall (1) comply with the
requirements of subdivision (c), (2) designate the business records,
documents, and tangible things to be produced either by specifically
describing each individual item or by reasonably particularizing each
category of item, and (3) specify any testing or sampling that is
being sought. This deposition subpoena need not be accompanied by an
affidavit or declaration showing good cause for the production of
the documents and things designated.
Where, as described in Section 1985.3, the person to whom the
deposition subpoena is directed is a witness, and the business
records described in the deposition subpoena are personal records
pertaining to a consumer, the service of the deposition subpoena
shall be accompanied either by a copy of the proof of service of the
notice to the consumer described in subdivision (e) of Section
1985.3, or by the consumer's written authorization to release
personal records described in paragraph (2) of subdivision (c) of
Section 1985.3.
(f) Subject to paragraph (1) of subdivision (d), service of a
deposition subpoena shall be effected a sufficient time in advance of
the deposition to provide the deponent a reasonable opportunity to
locate and produce any designated business records, documents, and
tangible things, as described in subdivision (d), and, where personal
attendance is commanded, a reasonable time to travel to the place of
deposition. Any person may serve the subpoena by personal delivery
of a copy of it (1) if the deponent is a natural person, to that
person, and (2) if the deponent is an organization, to any officer,
director, custodian of records, or to any agent or employee
authorized by the organization to accept service of a subpoena.
If a deposition subpoena requires the personal attendance of the
deponent, under subdivision (c) or (e), the party noticing the
deposition shall pay to the deponent in cash or by check the same
witness fee and mileage required by Chapter 1 (commencing with
Section 68070) of Title 8 of the Government Code for attendance and
testimony before the court in which the action is pending. This
payment, whether or not demanded by the deponent, shall be made, at
the option of the party noticing the deposition, either at the time
of service of the deposition subpoena, or at the time the deponent
attends for the taking of testimony.
Service of a deposition subpoena that does not require the
personal attendance of a custodian of records or other qualified
person, under subdivision (d), shall be accompanied, whether or not
demanded by the deponent, by a payment in cash or by check of the
witness fee required by paragraph (6) of subdivision (b) of Section
1563 of the Evidence Code.
(g) Personal service of any deposition subpoena is effective to
require of any deponent who is a resident of California at the time
of service (1) personal attendance and testimony, if the subpoena so
specifies, (2) any specified production, inspection, testing, and
sampling, and (3) the deponent's attendance at a court session to
consider any issue arising out of the deponent's refusal to be sworn,
or to answer any question, or to produce specified items, or to
permit inspection or photocopying, if the subpoena so specifies, or
specified testing and sampling of the items produced.
(h) A deponent who disobeys a deposition subpoena in any manner
described in subdivision (g) may be punished for contempt under
Section 2023 without the necessity of a prior order of court
directing compliance by the witness, and is subject to the forfeiture
and the payment of damages set forth in Section 1992.
2021. Unless the court orders otherwise, the parties may by written
stipulation (a) provide that depositions may be taken before any
person, at any time or place, on any notice, and in any manner, and
when so taken may be used like other depositions, and (b) modify the
procedures provided by this article for other methods of discovery.
2023. (a) Misuses of the discovery process include, but are not
limited to, the following:
(1) Persisting, over objection and without substantial
justification, in an attempt to obtain information or materials that
are outside the scope of permissible discovery.
(2) Using a discovery method in a manner that does not comply with
its specified procedures.
(3) Employing a discovery method in a manner or to an extent that
causes unwarranted annoyance, embarrassment, or oppression, or undue
burden and expense.
(4) Failing to respond or to submit to an authorized method of
discovery.
(5) Making, without substantial justification, an unmeritorous
objection to discovery.
(6) Making an evasive response to discovery.
(7) Disobeying a court order to provide discovery.
(8) Making or opposing, unsuccessfully and without substantial
justification, a motion to compel or to limit discovery.
(9) Failing to confer in person, by telephone, or by letter with
an opposing party or attorney in a reasonable and good faith attempt
to resolve informally any dispute concerning discovery, if the
section governing a particular discovery motion requires the filing
of a declaration stating facts showing that such an attempt has been
made. Notwithstanding the outcome of the particular discovery
motion, the court shall impose a monetary sanction ordering that any
party or attorney who fails to confer as required pay the reasonable
expenses, including attorney's fees, incurred by anyone as a result
of that conduct.
(b) To the extent authorized by the section governing any
particular discovery method or any other provision of this article,
the court, after notice to any affected party, person, or attorney,
and after opportunity for hearing, may impose the following sanctions
against anyone engaging in conduct that is a misuse of the discovery
process.
(1) The court may impose a monetary sanction ordering that one
engaging in the misuse of the discovery process, or any attorney
advising that conduct, or both pay the reasonable expenses, including
attorney's fees, incurred by anyone as a result of that conduct.
The court may also impose this sanction on one unsuccessfully
asserting that another has engaged in the misuse of the discovery
process, or on any attorney who advised that assertion, or on both.
If a monetary sanction is authorized by any provision of this
article, the court shall impose that sanction unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
(2) The court may impose an issue sanction ordering that
designated facts shall be taken as established in the action in
accordance with the claim of the party adversely affected by the
misuse of the discovery process. The court may also impose an issue
sanction by an order prohibiting any party engaging in the misuse of
the discovery process from supporting or opposing designated claims
or defenses.
(3) The court may impose an evidence sanction by an order
prohibiting any party engaging in the misuse of the discovery process
from introducing designated matters in evidence.
(4) The court may impose a terminating sanction by one of the
following orders:
(A) An order striking out the pleadings or parts of the pleadings
of any party engaging in the misuse of the discovery process.
(B) An order staying further proceedings by that party until an
order for discovery is obeyed.
(C) An order dismissing the action, or any part of the action, of
that party.
(D) An order rendering a judgment by default against that party.
(5) The court may impose a contempt sanction by an order treating
the misuse of the discovery process as a contempt of court.
(c) A request for a sanction shall, in the notice of motion,
identify every person, party, and attorney against whom the sanction
is sought, and specify the type of sanction sought. The notice of
motion shall be supported by a memorandum of points and authorities,
and accompanied by a declaration setting forth facts supporting the
amount of any monetary sanction sought.
2024. (a) Except as otherwise provided in this section, any party
shall be entitled as a matter of right to complete discovery
proceedings on or before the 30th day, and to have motions concerning
discovery heard on or before the 15th day, before the date initially
set for the trial of the action. If either of these dates falls on
a Saturday, Sunday, or holiday as specified in Section 10, the last
day shall be the next successive court day. As used in this section,
discovery is considered completed on the day a response is due or on
the day a deposition begins. Except as provided in subdivision (e),
a continuance or postponement of the trial date does not operate to
reopen discovery proceedings.
(b) The time limit on completing discovery in an action to be
arbitrated under Chapter 2.5 (commencing with Section 1141.10) of
Title 3 of Part 3 is subject to Judicial Council Rule. After an
award in a case ordered to judicial arbitration, completion of
discovery is limited by Section 1141.24.
(c) This section does not apply to (1) summary proceedings for
obtaining possession of real property governed by Chapter 4
(commencing with Section 1159) of Title 3 of Part 3, in which
discovery shall be completed on or before the fifth day before the
date set for trial except as provided in subdivisions (e) and (f), or
(2) eminent domain proceedings governed by Title 7 (commencing with
Section 1230.010) of Part 3.
(d) Any party shall be entitled as a matter of right to complete
discovery proceedings pertaining to a witness identified under
Section 2034 on or before the 15th day, and to have motions
concerning that discovery heard on or before the 10th day, before the
date initially set for the trial of the action.
(e) On motion of any party, the court may grant leave to complete
discovery proceedings, or to have a motion concerning discovery
heard, closer to the initial trial date, or to reopen discovery after
a new trial date has been set. This motion shall be accompanied by
a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of each issue presented by the
motion.
In exercising its discretion to grant or deny this motion, the
court shall take into consideration any matter relevant to the leave
requested, including, but not limited to, the following:
(1) The necessity and the reasons for the discovery.
(2) The diligence or lack of diligence of the party seeking the
discovery or the hearing of a discovery motion, and the reasons that
the discovery was not completed or that the discovery motion was not
heard earlier.
(3) Any likelihood that permitting the discovery or hearing the
discovery motion will prevent the case from going to trial on the
date set, or otherwise interfere with the trial calendar, or result
in prejudice to any other party.
(4) The length of time that has elapsed between any date
previously set, and the date presently set, for the trial of the
action.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to extend or to reopen discovery, unless it finds
that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
(f) Parties to the action may, with the consent of any party
affected by it, enter into an agreement to extend the time for the
completion of discovery proceedings or for the hearing of motions
concerning discovery, or to reopen discovery after a new date for
trial of the action has been set. This agreement may be informal,
but it shall be confirmed in a writing that specifies the extended
date. In no event shall this agreement require a court to grant a
continuance or postponement of the trial of the action.
(g) When the last day to perform or complete any act provided for
in this article falls on a Saturday, Sunday, or holiday as specified
in Section 10, the time limit is extended until the next day that is
not a Saturday, Sunday, or holiday.
2025. (a) Any party may obtain discovery within the scope delimited
by Section 2017, and subject to the restrictions set forth in
Section 2019, by taking in California the oral deposition of any
person, including any party to the action. The person deposed may be
a natural person, an organization such as a public or private
corporation, a partnership, an association, or a governmental agency.
(b) Subject to subdivisions (f) and (t), an oral deposition may be
taken as follows:
(1) The defendant may serve a deposition notice without leave of
court at any time after that defendant has been served or has
appeared in the action, whichever occurs first.
(2) The plaintiff may serve a deposition notice without leave of
court on any date that is 20 days after the service of the summons
on, or appearance by, any defendant. However, on motion with or
without notice, the court, for good cause shown, may grant to a
plaintiff leave to serve a deposition notice on an earlier date.
(c) A party desiring to take the oral deposition of any person
shall give notice in writing in the manner set forth in subdivision
(d). However, where under subdivision (d) of Section 2020 only the
production by a nonparty of business records for copying is desired,
a copy of the deposition subpoena shall serve as the notice of
deposition. The notice of deposition shall be given to every other
party who has appeared in the action. The deposition notice, or the
accompanying proof of service, shall list all the parties or
attorneys for parties on whom it is served.
Where, as defined in subdivision (a) of Section 1985.3, the party
giving notice of the deposition is a subpoenaing party, and the
deponent is a witness commanded by a deposition subpoena to produce
personal records of a consumer, the subpoenaing party shall serve on
that consumer (1) a notice of the deposition, (2) the notice of
privacy rights specified in subdivision (e) of Section 1985.3 and in
Section 1985.6, and (3) a copy of the deposition subpoena.
(d) The deposition notice shall state all of the following:
(1) The address where the deposition will be taken.
(2) The date of the deposition, selected under subdivision (f),
and the time it will commence.
(3) The name of each deponent, and the address and telephone
number, if known, of any deponent who is not a party to the action.
If the name of the deponent is not known, the deposition notice shall
set forth instead a general description sufficient to identify the
person or particular class to which the person belongs.
(4) The specification with reasonable particularity of any
materials or category of materials to be produced by the deponent.
(5) Any intention to record the testimony by audiotape or
videotape, in addition to recording the testimony by the stenographic
method as required by paragraph (1) of subdivision (l) and any
intention to record the testimony by stenographic method, through the
instant visual display of the testimony. In the latter event, a
copy of the deposition notice shall also be given to the deposition
officer. Any offer to provide the instant visual display of the
testimony or to provide rough draft transcripts to any party which is
accepted prior to, or offered at, the deposition shall also be made
by the deposition officer at the deposition to all parties in
attendance.
(6) Any intention to reserve the right to use at trial a videotape
deposition of a treating or consulting physician or of any expert
witness under paragraph (4) of subdivision (u). In this event, the
operator of the videotape camera shall be a person who is authorized
to administer an oath, and shall not be financially interested in the
action or be a relative or employee of any attorney of any of the
parties.
If the deponent named is not a natural person, the deposition
notice shall describe with reasonable particularity the matters on
which examination is requested. In that event, the deponent shall
designate and produce at the deposition those of its officers,
directors, managing agents, employees, or agents who are most
qualified to testify on its behalf as to those matters to the extent
of any information known or reasonably available to the deponent. A
deposition subpoena shall advise a nonparty deponent of its duty to
make this designation, and shall describe with reasonable
particularity the matters on which examination is requested.
If the attendance of the deponent is to be compelled by service of
a deposition subpoena under Section 2020, an identical copy of that
subpoena shall be served with the deposition notice.
(e) (1) The deposition of a natural person, whether or not a party
to the action, shall be taken at a place that is, at the option of
the party giving notice of the deposition, either within 75 miles of
the deponent's residence, or within the county where the action is
pending and within 150 miles of the deponent's residence, unless the
court orders otherwise under paragraph (3).
(2) The deposition of an organization that is a party to the
action shall be taken at a place that is, at the option of the party
giving notice of the deposition, either within 75 miles of the
organization's principal executive or business office in California,
or within the county where the action is pending and within 150 miles
of that office. The deposition of any other organization shall be
taken within 75 miles of the organization's principal executive or
business office in California, unless the organization consents to a
more distant place. If the organization has not designated a
principal executive or business office in California, the deposition
shall be taken at a place that is, at the option of the party giving
notice of the deposition, either within the county where the action
is pending, or within 75 miles of any executive or business office in
California of the organization.
(3) A party desiring to take the deposition of a natural person
who is a party to the action or an officer, director, managing agent,
or employee of a party may make a motion for an order that the
deponent attend for deposition at a place that is more distant than
that permitted under paragraph (1). This motion shall be accompanied
by a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of any issue presented by the
motion.
In exercising its discretion to grant or deny this motion, the
court shall take into consideration any factor tending to show
whether the interests of justice will be served by requiring the
deponent's attendance at that more distant place, including, but not
limited to, the following:
(A) Whether the moving party selected the forum.
(B) Whether the deponent will be present to testify at the trial
of the action.
(C) The convenience of the deponent.
(D) The feasibility of conducting the deposition by written
questions under Section 2028, or of using a discovery method other
than a deposition.
(E) The number of depositions sought to be taken at a place more
distant than that permitted under paragraph (1).
(F) The expense to the parties of requiring the deposition to be
taken within the distance permitted under paragraph (1).
(G) The whereabouts of the deponent at the time for which the
deposition is scheduled.
The order may be conditioned on the advancement by the moving
party of the reasonable expenses and costs to the deponent for travel
to the place of deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to increase travel limits for party deponent, unless
it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
(f) An oral deposition shall be scheduled for a date at least 10
days after service of the deposition notice. If, as defined in
subdivision (a) of Section 1985.3, the party giving notice of the
deposition is a subpoenaing party, and the deponent is a witness
commanded by a deposition subpoena to produce personal records of a
consumer, the deposition shall be scheduled for a date at least 20
days after issuance of that subpoena. However, in unlawful detainer
actions, an oral deposition shall be scheduled for a date at least
five days after service of the deposition notice, but not later than
five days before trial.
On motion or ex parte application of any party or deponent, for
good cause shown, the court may shorten or extend the time for
scheduling a deposition, or may stay its taking until the
determination of a motion for a protective order under subdivision
(i).
(g) Any party served with a deposition notice that does not comply
with subdivisions (b) to (f), inclusive, waives any error or
irregularity unless that party promptly serves a written objection
specifying that error or irregularity at least three calendar days
prior to the date for which the deposition is scheduled, on the party
seeking to take the deposition and any other attorney or party on
whom the deposition notice was served. If an objection is made three
calendar days before the deposition date, the objecting party shall
make personal service of that objection pursuant to Section 1011 on
the party who gave notice of the deposition. Any deposition taken
after the service of a written objection shall not be used against
the objecting party under subdivision (u) if the party did not attend
the deposition and if the court determines that the objection was a
valid one.
In addition to serving this written objection, a party may also
move for an order staying the taking of the deposition and quashing
the deposition notice. This motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of any issue presented by the motion. The
taking of the deposition is stayed pending the determination of this
motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to quash a deposition notice, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
(h) (1) The service of a deposition notice under subdivision (c)
is effective to require any deponent who is a party to the action or
an officer, director, managing agent, or employee of a party to
attend and to testify, as well as to produce any document or tangible
thing for inspection and copying.
(2) The attendance and testimony of any other deponent, as well as
the production by the deponent of any document or tangible thing for
inspection and copying, requires the service on the deponent of a
deposition subpoena under Section 2020.
(3) A person may take, and any person other than the deponent may
attend, a deposition by telephone or other remote electronic means.
The court may expressly provide that a nonparty deponent may appear
at his or her deposition by telephone if it finds there is good cause
and no prejudice to any party. A party deponent must appear at his
or her deposition in person and be in the presence of the deposition
officer. The procedures to implement this section shall be
established by court order in the specific action proceeding or by
the California Rules of Court.
(i) Before, during, or after a deposition, any party, any
deponent, or any other affected natural person or organization may
promptly move for a protective order. The motion shall be
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party, deponent, or other natural person or
organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may
include, but is not limited to, one or more of the following
directions:
(1) That the deposition not be taken at all.
(2) That the deposition be taken at a different time.
(3) That a videotape deposition of a treating or consulting
physician or of any expert witness, intended for possible use at
trial under paragraph (4) of subdivision (u), be postponed until the
moving party has had an adequate opportunity to prepare, by discovery
deposition of the deponent, or other means, for cross-examination.
(4) That the deposition be taken at a place other than that
specified in the deposition notice, if it is within a distance
permitted by subdivision (e).
(5) That the deposition be taken only on certain specified terms
and conditions.
(6) That the deponent's testimony be taken by written, instead of
oral, examination.
(7) That the method of discovery be interrogatories to a party
instead of an oral deposition.
(8) That the testimony be recorded in a manner different from that
specified in the deposition notice.
(9) That certain matters not be inquired into.
(10) That the scope of the examination be limited to certain
matters.
(11) That all or certain of the writings or tangible things
designated in the deposition notice not be produced, inspected, or
copied.
(12) That designated persons, other than the parties to the action
and their officers and counsel, be excluded from attending the
deposition.
(13) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only to specified persons or only in a specified way.
(14) That the parties simultaneously file specified documents
enclosed in sealed envelopes to be opened as directed by the court.
(15) That the deposition be sealed and thereafter opened only on
order of the court.
If the motion for a protective order is denied in whole or in
part, the court may order that the deponent provide or permit the
discovery against which protection was sought on those terms and
conditions that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(j) (1) If the party giving notice of a deposition fails to attend
or proceed with it, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, and in favor of any party attending in person or by attorney,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
(2) If a deponent does not appear for a deposition because the
party giving notice of the deposition failed to serve a required
deposition subpoena, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, in favor of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, unless
the court finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a deponent on whom a deposition subpoena has been served fails
to attend a deposition or refuses to be sworn as a witness, the court
may impose on the deponent the sanctions described in subdivision
(h) of Section 2020.
(3) If, after service of a deposition notice, a party to the
action or an officer, director, managing agent, or employee of a
party, or a person designated by an organization that is a party
under subdivision (d), without having served a valid objection under
subdivision (g), fails to appear for examination, or to proceed with
it, or to produce for inspection any document or tangible thing
described in the deposition notice, the party giving the notice may
move for an order compelling the deponent's attendance and testimony,
and the production for inspection of any document or tangible thing
described in the deposition notice. This motion (A) shall set forth
specific facts showing good cause justifying the production for
inspection of any document or tangible thing described in the
deposition notice, and (B) shall be accompanied by a declaration
stating facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by it or, when the
deponent fails to attend the deposition and produce the documents or
things described in the deposition notice, by a declaration stating
that the petitioner has contacted the deponent to inquire about the
nonappearance. If this motion is granted, the court shall also
impose a monetary sanction under Section 2023 against the deponent or
the party with whom the deponent is affiliated, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust. On motion of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, the
court shall also impose a monetary sanction under Section 2023,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If that party or party-affiliated deponent then fails to obey an
order compelling attendance, testimony, and production, the court may
make those orders that are just, including the imposition of an
issue sanction, an evidence sanction, or a terminating sanction under
Section 2023 against that party deponent or against the party with
whom the deponent is affiliated. In lieu of, or in addition to, this
sanction, the court may impose a monetary sanction under Section
2023 against that deponent or against the party with whom that party
deponent is affiliated, and in favor of any party who, in person or
by attorney, attended in the expectation that the deponent's
testimony would be taken pursuant to that order.
(k) Except as provided in paragraph (3) of subdivision (d) of
Section 2020, the deposition shall be conducted under the supervision
of an officer who is authorized to administer an oath and is subject
to all of the following requirements:
(1) The officer shall not be financially interested in the action
and shall not be a relative or employee of any attorney of the
parties, or of any of the parties.
(2) Services and products offered or provided by the deposition
officer or the entity providing the services of the deposition
officer to any party or to any party's attorney or third party who is
financing all or part of the action shall be offered to all parties
or their attorneys attending the deposition. No service or product
may be offered or provided by the deposition officer or by the entity
providing the services of the deposition officer to any party or any
party's attorney or third party who is financing all or part of the
action unless the service or product is offered or provided to all
parties or their attorneys attending the deposition. All services
and products offered or provided shall be made available at the same
time to all parties or their attorneys.
(3) The deposition officer or the entity providing the services of
the deposition officer shall not provide to any party or any party's
attorney or third party who is financing all or part of the action
any service or product consisting of the deposition officer's
notations or comments regarding the demeanor of any witness,
attorney, or party present at the deposition. The deposition officer
or entity providing the services of the deposition officer shall not
collect any personal identifying information about the witness as a
service or product to be provided to any party or third party who is
financing all or part of the action.
(4) Upon the request of any party or any party's attorney
attending a deposition, any party or any party's attorney attending
the deposition shall enter in the record of the deposition all
services and products made available to that party or party's
attorney or third party who is financing all or part of the action by
the deposition officer or by the entity providing the services of
the deposition officer. A party in the action who is not represented
by an attorney shall be informed by the noticing party or the party'
s attorney that the unrepresented party may request this statement.
(5) Any objection to the qualifications of the deposition officer
shall be waived unless made before the deposition begins or as soon
thereafter as the ground for that objection becomes known or could be
discovered by reasonable diligence.
(l) (1) The deposition officer shall put the deponent under oath.
Unless the parties agree or the court orders otherwise, the
testimony, as well as any stated objections, shall be taken
stenographically. The party noticing the deposition may also record
the testimony by audiotape or videotape if the notice of deposition
stated an intention also to record the testimony by either of those
methods, or if all the parties agree that the testimony may also be
recorded by either of those methods. Any other party, at that party'
s expense, may make a simultaneous audiotape or videotape record of
the deposition, provided that other party promptly, and in no event
less than three calendar days before the date for which the
deposition is scheduled, serves a written notice of this intention to
audiotape or videotape the deposition testimony on the party or
attorney who noticed the deposition, on all other parties or
attorneys on whom the deposition notice was served under subdivision
(c), and on any deponent whose attendance is being compelled by a
deposition subpoena under Section 2020. If this notice is given
three calendar days before the deposition date, it shall be made by
personal service under Section 1011. Examination and
cross-examination of the deponent shall proceed as permitted at trial
under the provisions of the Evidence Code.
(2) If the deposition is being recorded by means of audiotape or
videotape, the following procedure shall be observed:
(A) The area used for recording the deponent's oral testimony
shall be suitably large, adequately lighted, and reasonably quiet.
(B) The operator of the recording equipment shall be competent to
set up, operate, and monitor the equipment in the manner prescribed
in this subdivision. The operator may be an employee of the attorney
taking the deposition unless the operator is also the deposition
officer. However, if a videotape of deposition testimony is to be
used under paragraph (4) of subdivision (u), the operator of the
recording equipment shall be a person who is authorized to administer
an oath, and shall not be financially interested in the action or be
a relative or employee of any attorney of any of the parties, unless
all parties attending the deposition agree on the record to waive
these qualifications and restrictions. Services and products offered
or provided by the deposition officer or the entity providing the
services of the deposition officer to any party or to any party's
attorney or third party who is financing all or part of the action
shall be offered or provided to all parties or their attorneys
attending the deposition. No service or product may be offered or
provided by the deposition officer or by the entity providing the
services of the deposition officer to any party or any party's
attorney or third party who is financing all or part of the action
unless the service or product is offered or provided to all parties
or their attorneys attending the deposition. All services and
products offered or provided shall be made available at the same time
to all parties or their attorneys. The deposition officer or the
entity providing the services of the deposition officer shall not
provide to any party or any other person or entity any service or
product consisting of the deposition officer's notations or comments
regarding the demeanor of any witness, attorney, or party present at
the deposition. The deposition officer or the entity providing the
services of the deposition officer shall not collect any personal
identifying information about the witness as a service or product to
be provided to any party or third party who is financing all or part
of the action. Upon the request of any party or any party's attorney
attending a deposition, any party or any party's attorney attending
the deposition shall enter in the record of the deposition all
services and products made available to that party or party's
attorney or third party who is financing all or part of the action by
the deposition officer or by the entity providing the services of
the deposition officer. A party in the action who is not represented
by an attorney shall be informed by the noticing party that the
unrepresented party may request this statement.
(C) The operator shall not distort the appearance or the demeanor
of participants in the deposition by the use of camera or sound
recording techniques.
(D) The deposition shall begin with an oral or written statement
on camera or on the audiotape that includes the operator's name and
business address, the name and business address of the operator's
employer, the date, time, and place of the deposition, the caption of
the case, the name of the deponent, a specification of the party on
whose behalf the deposition is being taken, and any stipulations by
the parties.
(E) Counsel for the parties shall identify themselves on camera or
on the audiotape.
(F) The oath shall be administered to the deponent on camera or on
the audiotape.
(G) If the length of a deposition requires the use of more than
one unit of tape, the end of each unit and the beginning of each
succeeding unit shall be announced on camera or on the audiotape.
(H) At the conclusion of a deposition, a statement shall be made
on camera or on the audiotape that the deposition is ended and shall
set forth any stipulations made by counsel concerning the custody of
the audiotape or videotape recording and the exhibits, or concerning
other pertinent matters.
(I) A party intending to offer an audiotaped or videotaped
recording of a deposition in evidence under subdivision (u) shall
notify the court and all parties in writing of that intent and of the
parts of the deposition to be offered within sufficient time for
objections to be made and ruled on by the judge to whom the case is
assigned for trial or hearing, and for any editing of the tape.
Objections to all or part of the deposition shall be made in writing.
The court may permit further designations of testimony and
objections as justice may require. With respect to those portions of
an audiotaped or videotaped deposition that are not designated by
any party or that are ruled to be objectionable, the court may order
that the party offering the recording of the deposition at the trial
or hearing suppress those portions, or that an edited version of the
deposition tape be prepared for use at the trial or hearing. The
original audiotape or videotape of the deposition shall be preserved
unaltered. If no stenographic record of the deposition testimony has
previously been made, the party offering a videotape or an audiotape
recording of that testimony under subdivision (u) shall accompany
that offer with a stenographic transcript prepared from that
recording.
(3) In lieu of participating in the oral examination,
parties may transmit written questions in a sealed envelope to the
party taking the deposition for delivery to the deposition officer,
who shall unseal the envelope and propound them to the deponent after
the oral examination has been completed.
(m) (1) The protection of information from discovery on the ground
that it is privileged or that it is a protected work product under
Section 2018 is waived unless a specific objection to its disclosure
is timely made during the deposition.
(2) Errors and irregularities of any kind occurring at the oral
examination that might be cured if promptly presented are waived
unless a specific objection to them is timely made during the
deposition. These errors and irregularities include, but are not
limited to, those relating to the manner of taking the deposition, to
the oath or affirmation administered, to the conduct of a party,
attorney, deponent, or deposition officer, or to the form of any
question or answer. Unless the objecting party demands that the
taking of the deposition be suspended to permit a motion for a
protective order under subdivision (n), the deposition shall proceed
subject to the objection.
(3) Objections to the competency of the deponent, or to the
relevancy, materiality, or admissibility at trial of the testimony or
of the materials produced are unnecessary and are not waived by
failure to make them before or during the deposition.
(4) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking that answer or production may adjourn the deposition or
complete the examination on other matters without waiving the right
at a later time to move for an order compelling that answer or
production under subdivision (o).
(n) The deposition officer shall not suspend the taking of
testimony without stipulation of the party conducting the deposition
and the deponent unless any party attending the deposition or the
deponent demands the taking of testimony be suspended to enable that
party or deponent to move for a protective order on the ground that
the examination is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses that deponent or
party. This motion shall be accompanied by a declaration stating
facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion. The court, for
good cause shown, may terminate the examination or may limit the
scope and manner of taking the deposition as provided in subdivision
(i). If the order terminates the examination, the deposition shall
not thereafter be resumed, except on order of the court.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for this protective order, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(o) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking discovery may move the court for an order compelling
that answer or production. This motion shall be made no later than
60 days after the completion of the record of the deposition, and
shall be accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion. Notice of this motion shall be given
to all parties, and to the deponent either orally at the examination,
or by subsequent service in writing. If the notice of the motion is
given orally, the deposition officer shall direct the deponent to
attend a session of the court at the time specified in the notice.
Not less than five days prior to the hearing on this motion, the
moving party shall lodge with the court a certified copy of any parts
of the stenographic transcript of the deposition that are relevant
to the motion. If a deposition is recorded by audiotape or
videotape, the moving party is required to lodge a certified copy of
a transcript of any parts of the deposition that are relevant to the
motion. If the court determines that the answer or production sought
is subject to discovery, it shall order that the answer be given or
the production be made on the resumption of the deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel answer or production, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
If a deponent fails to obey an order entered under this
subdivision, the failure may be considered a contempt of court. In
addition, if the disobedient deponent is a party to the action or an
officer, director, managing agent, or employee of a party, the court
may make those orders that are just against the disobedient party, or
against the party with whom the disobedient deponent is affiliated,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Section 2023. In lieu of, or in
addition to, this sanction, the court may impose a monetary sanction
under Section 2023 against that party deponent or against any party
with whom the deponent is affiliated.
(p) Unless the parties agree otherwise, the testimony at any
deposition recorded by stenographic means shall be transcribed. The
party noticing the deposition shall bear the cost of that
transcription, unless the court, on motion and for good cause shown,
orders that the cost be borne or shared by another party.
Notwithstanding paragraph (2) of subdivision (k), any other party, at
that party's expense, may obtain a copy of the transcript. If the
deposition officer receives a request from a party for an original or
a copy of the deposition transcript, or any portion thereof, and the
document will be available to that party prior to the time the
original or copy would be available to any other party, the
deposition officer shall immediately notify all other parties
attending the deposition of the request, and shall, upon request by
any party other than the party making the original request, make that
copy of the full or partial deposition transcript available to all
parties at the same time. Stenographic notes of depositions shall be
retained by the reporter for a period of not less than eight years
from the date of the deposition, where no transcript is produced, and
not less than one year from the date on which the transcript is
produced. Those notes may be either on paper or electronic media, as
long as it allows for satisfactory production of a transcript at any
time during the periods specified. At the request of any other
party to the action, including a party who did not attend the taking
of the deposition testimony, any party who records or causes the
recording of that testimony by means of audiotape or videotape shall
promptly (1) permit that other party to hear the audiotape or to view
the videotape, and (2) furnish a copy of the audiotape or videotape
to that other party on receipt of payment of the reasonable cost of
making that copy of the tape.
If the testimony at the deposition is recorded both
stenographically, and by audiotape or videotape, the stenographic
transcript is the official record of that testimony for the purpose
of the trial and any subsequent hearing or appeal.
(q) (1) If the deposition testimony is stenographically recorded,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition when the original transcript
of the testimony for each session of the deposition is available for
reading, correcting, and signing, unless the deponent and the
attending parties agree on the record that the reading, correcting,
and signing of the transcript of the testimony will be waived or that
the reading, correcting, and signing of a transcript of the
testimony will take place after the entire deposition has been
concluded or at some other specific time. For 30 days following each
notice, unless the attending parties and the deponent agree on the
record or otherwise in writing to a longer or shorter time period,
the deponent may change the form or the substance of the answer to a
question, and may either approve the transcript of the deposition by
signing it, or refuse to approve the transcript by not signing it.
Alternatively, within this same period, the deponent may change
the form or the substance of the answer to any question and may
approve or refuse to approve the transcript by means of a letter to
the deposition officer signed by the deponent which is mailed by
certified or registered mail with return receipt requested. A copy
of that letter shall be sent by first-class mail to all parties
attending the deposition. For good cause shown, the court may
shorten the 30-day period for making changes, approving, or refusing
to approve the transcript.
The deposition officer shall indicate on the original of the
transcript, if the deponent has not already done so at the office of
the deposition officer, any action taken by the deponent and indicate
on the original of the transcript, the deponent's approval of, or
failure or refusal to approve, the transcript. The deposition
officer shall also notify in writing the parties attending the
deposition of any changes which the deponent timely made in person.
If the deponent fails or refuses to approve the transcript within the
allotted period, the deposition shall be given the same effect as
though it had been approved, subject to any changes timely made by
the deponent. However, on a seasonable motion to suppress the
deposition, accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion, the court may determine that the
reasons given for the failure or refusal to approve the transcript
require rejection of the deposition in whole or in part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(2) If there is no stenographic transcription of the deposition,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition that the recording is
available for review, unless the deponent and all these parties agree
on the record to waive the hearing or viewing of an audiotape or
videotape recording of the testimony. For 30 days following this
notice the deponent, either in person or by signed letter to the
deposition officer, may change the substance of the answer to any
question.
The deposition officer shall set forth in a writing to accompany
the recording any changes made by the deponent, as well as either the
deponent's signature identifying the deposition as his or her own,
or a statement of the deponent's failure to supply the signature, or
to contact the officer within the allotted period. When a deponent
fails to contact the officer within the allotted period, or expressly
refuses by a signature to identify the deposition as his or her own,
the deposition shall be given the same effect as though signed.
However, on a reasonable motion to suppress the deposition,
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion, the court may determine that the reasons given for the
refusal to sign require rejection of the deposition in whole or in
part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(r) (1) The deposition officer shall certify on the transcript of
the deposition, or in a writing accompanying an audiotaped or
videotaped deposition as described in paragraph (2) of subdivision
(q), that the deponent was duly sworn and that the transcript or
recording is a true record of the testimony given.
(2) When prepared as a rough draft transcript, the transcript of
the deposition may not be certified and may not be used, cited, or
transcribed as the certified transcript of the deposition
proceedings. The rough draft transcript may not be cited or used in
any way or at any time to rebut or contradict the certified
transcript of deposition proceedings as provided by the deposition
officer.
(s) (1) The certified transcript of a deposition shall not be
filed with the court. Instead, the deposition officer shall securely
seal that transcript in an envelope or package endorsed with the
title of the action and marked: "Deposition of (here insert name of
deponent)," and shall promptly transmit it to the attorney for the
party who noticed the deposition. This attorney shall store it under
conditions that will protect it against loss, destruction, or
tampering.
The attorney to whom the transcript of a deposition is transmitted
shall retain custody of it until six months after final disposition
of the action. At that time, the transcript may be destroyed, unless
the court, on motion of any party and for good cause shown, orders
that the transcript be preserved for a longer period.
(2) An audiotape or videotape record of deposition testimony,
including a certified tape made by an operator qualified under
subparagraph (B) of paragraph (2) of subdivision (l), shall not be
filed with the court. Instead, the operator shall retain custody of
that record and shall store it under conditions that will protect it
against loss, destruction, or tampering, and preserve as far as
practicable the quality of the tape and the integrity of the
testimony and images it contains.
At the request of any party to the action, including a party who
did not attend the taking of the deposition testimony, or at the
request of the deponent, that operator shall promptly (A) permit the
one making the request to hear or to view the tape on receipt of
payment of a reasonable charge for providing the facilities for
hearing or viewing the tape, and (B) furnish a copy of the audiotape
or the videotape recording to the one making the request on receipt
of payment of the reasonable cost of making that copy of the tape.
The attorney or operator who has custody of an audiotape or
videotape record of deposition testimony shall retain custody of it
until six months after final disposition of the action. At that
time, the audiotape or videotape may be destroyed or erased, unless
the court, on motion of any party and for good cause shown, orders
that the tape be preserved for a longer period.
(t) Once any party has taken the deposition of any natural person,
including that of a party to the action, neither the party who gave,
nor any other party who has been served with a deposition notice
pursuant to subdivision (c) may take a subsequent deposition of that
deponent. However, for good cause shown, the court may grant leave
to take a subsequent deposition, and the parties, with the consent of
any deponent who is not a party, may stipulate that a subsequent
deposition be taken. This subdivision does not preclude taking one
subsequent deposition of a natural person who has previously been
examined (1) as a result of that person's designation to testify on
behalf of an organization under subdivision (d), or (2), pursuant to
a court order under Section 485.230, for the limited purpose of
discovering pursuant to Section 485.230 the identity, location, and
value of property in which the deponent has an interest. This
subdivision does not authorize the taking of more than one subsequent
deposition for the limited purpose of Section 485.230.
(u) At the trial or any other hearing in the action, any part or
all of a deposition may be used against any party who was present or
represented at the taking of the deposition, or who had due notice of
the deposition and did not serve a valid objection under subdivision
(g), so far as admissible under the rules of evidence applied as
though the deponent were then present and testifying as a witness, in
accordance with the following provisions:
(1) Any party may use a deposition for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness, or for any other purpose permitted by the Evidence Code.
(2) An adverse party may use for any purpose, a deposition of a
party to the action, or of anyone who at the time of taking the
deposition was an officer, director, managing agent, employee, agent,
or designee under subdivision (d) of a party. It is not ground for
objection to the use of a deposition of a party under this paragraph
by an adverse party that the deponent is available to testify, has
testified, or will testify at the trial or other hearing.
(3) Any party may use for any purpose the deposition of any person
or organization, including that of any party to the action, if the
court finds any of the following:
(A) The deponent resides more than 150 miles from the place of the
trial or other hearing.
(B) The deponent, without the procurement or wrongdoing of the
proponent of the deposition for the purpose of preventing testimony
in open court, is (i) exempted or precluded on the ground of
privilege from testifying concerning the matter to which the deponent'
s testimony is relevant, (ii) disqualified from testifying, (iii)
dead or unable to attend or testify because of existing physical or
mental illness or infirmity, (iv) absent from the trial or other
hearing and the court is unable to compel the deponent's attendance
by its process, or (v) absent from the trial or other hearing and the
proponent of the deposition has exercised reasonable diligence but
has been unable to procure the deponent's attendance by the court's
process.
(C) Exceptional circumstances exist that make it desirable to
allow the use of any deposition in the interests of justice and with
due regard to the importance of presenting the testimony of witnesses
orally in open court.
(4) Any party may use a videotape deposition of a treating or
consulting physician or of any expert witness even though the
deponent is available to testify if the deposition notice under
subdivision (d) reserved the right to use the deposition at trial,
and if that party has complied with subparagraph (I) of paragraph (2)
of subdivision (l).
(5) Subject to the requirements of this section, a party may offer
in evidence all or any part of a deposition, and if the party
introduces only part of the deposition, any other party may introduce
any other parts that are relevant to the parts introduced.
(6) Substitution of parties does not affect the right to use
depositions previously taken.
(7) When an action has been brought in any court of the United
States or of any state, and another action involving the same subject
matter is subsequently brought between the same parties or their
representatives or successors in interest, all depositions lawfully
taken and duly filed in the initial action may be used in the
subsequent action as if originally taken in that subsequent action.
A deposition previously taken may also be used as permitted by the
Evidence Code.
(v) Violation of subdivision (k) by any person may result in a
civil penalty of up to five thousand dollars ($5,000) imposed by a
court of competent jurisdiction.
2025.5. (a) Notwithstanding paragraph (2) of subdivision (k) of
Section 2025, unless the court issues an order to the contrary, a
copy of the transcript, videotape, or other recording of testimony at
the deposition, if still in the possession of the deposition
officer, shall be made available by the deposition officer to any
person requesting a copy thereof upon payment of a reasonable charge
set by the deposition officer.
(b) If a copy is requested from the deposition officer, the
deposition officer shall mail a notice to all parties attending the
deposition and to the deponent at his or her last known address
advising them that (1) the copy is being sought, (2) the name of the
person requesting the copy, and (3) the right to seek a protective
order pursuant to subdivision (i) of Section 2025. If a protective
order is not served on the deposition officer within 30 days of the
mailing of the notice, the deposition officer shall make the copy
available to the person requesting the copy.
(c) This section shall apply only to recorded testimony taken at
depositions occurring on or after January 1, 1998.
2026. (a) Any party may obtain discovery by taking an oral
deposition, as described in subdivision (a) of Section 2025, in
another state of the United States, or in a territory or an insular
possession subject to its jurisdiction. Except as modified in this
section, the procedures for taking oral depositions in California set
forth in Section 2025 apply to an oral deposition taken in another
state of the United States, or in a territory or an insular
possession subject to its jurisdiction.
(b) (1) If a deponent is a party to the action or an officer,
director, managing agent, or employee of a party, the service of the
deposition notice is effective to compel that deponent to attend and
to testify, as well as to produce any document or tangible thing for
inspection and copying. The deposition notice shall specify a place
in the state, territory, or insular possession of the United States
that is within 75 miles of the residence or a business office of a
deponent.
(2) If the deponent is not a party to the action or an officer,
director, managing agent, or employee of a party, a party serving a
deposition notice under this section shall use any process and
procedures required and available under the laws of the state,
territory, or insular possession where the deposition is to be taken
to compel the deponent to attend and to testify, as well as to
produce any document or tangible thing for inspection, copying, and
any related activity.
(c) A deposition taken under this section shall be conducted (1)
under the supervision of a person who is authorized to administer
oaths by the laws of the United States or those of the place where
the examination is to be held, and who is not otherwise disqualified
under subdivision (k) and subparagraph (B) of paragraph (2) of
subdivision (l) of Section 2025, or (2) before a person appointed by
the court. This appointment is effective to authorize that person to
administer oaths and to take testimony. On request, the clerk of
the court shall issue a commission authorizing the deposition in
another state or place. The commission shall request that process
issue in the place where the examination is to be held, requiring
attendance and enforcing the obligations of the deponents to produce
documents and answer questions. The commission shall be issued by
the clerk to any party in any action pending in its venue without a
noticed motion or court order. The commission may contain such terms
as are required by the foreign jurisdiction to initiate the process.
If a court order is required by the foreign jurisdiction, an order
for a commission may be obtained by ex parte application.
2027. (a) Any party may obtain discovery by taking an oral
deposition, as described in subdivision (a) of Section 2025, in a
foreign nation. Except as modified in this section, the procedures
for taking oral depositions in California set forth in Section 2025
apply to an oral deposition taken in a foreign nation.
(b) (1) If a deponent is a party to the action or an officer,
director, managing agent, or employee of a party, the service of the
deposition notice is effective to compel the deponent to attend and
to testify, as well as to produce any document or tangible thing for
inspection and copying.
(2) If a deponent is not a party to the action or an officer,
director, managing agent or employee of a party, a party serving a
deposition notice under this section shall use any process and
procedures required and available under the laws of the foreign
nation where the deposition is to be taken to compel the deponent to
attend and to testify, as well as to produce any document or tangible
thing for inspection, copying, and any related activity.
(c) A deposition taken under this section shall be conducted under
the supervision of (1) a person who is authorized to administer
oaths or their equivalent by the laws of the United States or of the
foreign nation, and who is not otherwise disqualified under
subdivision (k) and subparagraph (B) of paragraph (2) of subdivision
(l) of Section 2025; (2) a person or officer appointed by commission
or under letters rogatory; or (3) any person agreed to by all the
parties.
On motion of the party seeking to take an oral deposition in a
foreign nation, the court in which the action is pending shall issue
a commission, letters rogatory, or a letter of request, if it
determines that one is necessary or convenient. The commission,
letters rogatory, or letter of request may include any terms and
directions that are just and appropriate. The deposition officer may
be designated by name or by descriptive title in the deposition
notice and in the commission. Letters rogatory or a letter of
request may be addressed: "To the Appropriate Judicial Authority in
(name of foreign nation)."
2028. (a) Any party may obtain discovery by taking a deposition by
written questions instead of by oral examination. Except as modified
in this section, the procedures for taking oral depositions set
forth in Sections 2025, 2026, and 2027 apply to written depositions.
(b) The notice of a written deposition shall comply with
subdivision (d) of Section 2025, except that (1) the name or
descriptive title, as well as the address, of the deposition officer
shall be stated, and (2) the date, time, and place for commencement
of the deposition may be left to future determination by the
deposition officer.
(c) The questions to be propounded to the deponent by direct
examination shall accompany the notice of a written deposition.
Within 30 days after the deposition notice and questions are
served, a party shall serve any cross questions on all other parties
entitled to notice of the deposition.
Within 15 days after being served with cross questions, a party
shall serve any redirect questions on all other parties entitled to
notice of the deposition.
Within 15 days after being served with redirect questions, a party
shall serve any recross questions on all other parties entitled to
notice of the deposition.
The court may, for good cause shown, extend or shorten the time
periods for the interchange of cross, redirect, and recross
questions.
(d) (1) A party who objects to the form of any question shall
serve a specific objection to that question on all parties entitled
to notice of the deposition within 15 days after service of the
question. A party who fails to timely serve an objection to the form
of a question waives it. The objecting party shall promptly move
the court to sustain the objection. This motion shall be accompanied
by a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of each issue presented by the
objection and motion. Unless the court has sustained that objection,
the deposition officer shall propound to the deponent that question
subject to that objection as to its form.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to sustain an objection, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(2) A party who objects to any question on the ground that it
calls for information that is privileged or is protected work product
under Section 2018 shall serve a specific objection to that question
on all parties entitled to notice of the deposition within 15 days
after service of the question. A party who fails to timely serve
that objection waives it. The party propounding any question to
which an objection is made on those grounds may then move the court
for an order overruling that objection. This motion shall be
accompanied by a declaration stating facts constituting a reasonable
and good faith attempt at an informal resolution of each issue
presented by the objection and motion. The deposition officer shall
not propound to the deponent any question to which a written
objection on those grounds has been served unless the court has
overruled that objection.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to overrule an objection, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(e) The party taking a written deposition may forward to the
deponent a copy of the questions on direct examination for study
prior to the deposition. No party or attorney shall permit the
deponent to preview the form or the substance of any cross, redirect,
or recross questions.
(f) In addition to any appropriate order listed in subdivision (i)
of Section 2025, the court may order any of the following:
(1) That the deponent's testimony be taken by oral, instead of
written, examination.
(2) That one or more of the parties receiving notice of the
written deposition be permitted to attend in person or by attorney
and to propound questions to the deponent by oral examination.
(3) That objections under subdivision (d) be sustained or
overruled.
(4) That the deposition be taken before an officer other than the
one named or described in the deposition notice.
(g) The party taking the deposition shall deliver to the officer
designated in the deposition notice a copy of that notice and of all
questions served under subdivision (c). The deposition officer shall
proceed promptly to propound the questions and to take and record
the testimony of the deponent in response to the questions.
2029. Whenever any mandate, writ, letters rogatory, letter of
request, or commission is issued out of any court of record in any
other state, territory, or district of the United States, or in a
foreign nation, or whenever, on notice or agreement, it is required
to take the oral or written deposition of a natural person in
California, the deponent may be compelled to appear and testify, and
to produce documents and things, in the same manner, and by the same
process as may be employed for the purpose of taking testimony in
actions pending in California.
2030. (a) Any party may obtain discovery within the scope delimited
by Section 2017, and subject to the restrictions set forth in
Section 2019, by propounding to any other party to the action written
interrogatories to be answered under oath.
(b) A defendant may propound interrogatories to a party to the
action without leave of court at any time. A plaintiff may propound
interrogatories to a party without leave of court at any time that is
10 days after the service of the summons on, or in unlawful detainer
actions five days after service of the summons on or appearance by,
that party, whichever occurs first. However, on motion with or
without notice, the court, for good cause shown, may grant leave to
a plaintiff to propound interrogatories at an earlier time.
(c) (1) A party may propound to another party (1) 35 specially
prepared interrogatories, and (2) any additional number of official
form interrogatories, as described in Section 2033.5, that are
relevant to the subject matter of the pending action. Except as
provided in paragraph (8), no party shall, as a matter of right,
propound to any other party more than 35 specially prepared
interrogatories. If the initial set of interrogatories does not
exhaust this limit, the balance may be propounded in subsequent sets.
Unless a declaration as described in paragraph (3) has been made, a
party need only respond to the first 35 specially prepared
interrogatories served, if that party states an objection to the
balance, under paragraph (3) of subdivision (f), on the ground that
the limit has been exceeded.
(2) Subject to the right of the responding party to seek a
protective order under subdivision (e), any party who attaches a
supporting declaration as described in paragraph (3) may propound a
greater number of specially prepared interrogatories to another party
if this greater number is warranted because of any of the following:
(A) The complexity or the quantity of the existing and potential
issues in the particular case.
(B) The financial burden on a party entailed in conducting the
discovery by oral deposition.
(C) The expedience of using this method of discovery to provide to
the responding party the opportunity to conduct an inquiry,
investigation, or search of files or records to supply the
information sought.
If the responding party seeks a protective order on the ground
that the number of specially prepared interrogatories is unwarranted,
the propounding party shall have the burden of justifying the number
of these interrogatories.
(3) Any party who is propounding or has propounded more than 35
specially prepared interrogatories to any other party shall attach to
each set of those interrogatories a declaration containing
substantially the following:
DECLARATION FOR ADDITIONAL DISCOVERY
I, ______, declare:
1. I am (a party to this action or proceeding appearing in
propria persona) (presently the attorney for ______, a party to this
action or proceeding).
2. I am propounding to ____ the attached set of interrogatories.
3. This set of interrogatories will cause the total number of
specially prepared interrogatories propounded to the party to whom
they are directed to exceed the number of specially prepared
interrogatories permitted by paragraph (1) of subdivision (c) of
Section 2030 of the Code of Civil Procedure.
4. I have previously propounded a total of ____ interrogatories
to this party, of which ____ interrogatories were not official form
interrogatories.
5. This set of interrogatories contains a total of ____ specially
prepared interrogatories.
6. I am familiar with the issues and the previous discovery
conducted by all of the parties in the case.
7. I have personally examined each of the questions in this set
of interrogatories.
8. This number of questions is warranted under paragraph (2) of
subdivision (c) of Section 2030 of the Code of Civil Procedure
because ____. (Here state each factor described in paragraph (2) of
subdivision (c) that is relied on, as well as the reasons why any
factor relied on is applicable to the instant lawsuit.)
9. None of the questions in this set of interrogatories is being
propounded for any improper purpose, such as to harass the party, or
the attorney for the party, to whom it is directed, or to cause
unnecessary delay or needless increase in the cost of litigation.
I declare under penalty of perjury under the laws of California
that the foregoing is true and correct, and that this declaration was
executed on ____. ______________(Signature)
Attorney for
(4) A party propounding interrogatories shall number each set of
interrogatories consecutively. In the first paragraph immediately
below the title of the case, there shall appear the identity of the
propounding party, the set number, and the identity of the responding
party. Each interrogatory in a set shall be separately set forth
and identified by number or letter.
(5) Each interrogatory shall be full and complete in and of
itself. No preface or instruction shall be included with a set of
interrogatories unless it has been approved under Section 2033.5.
Any term specially defined in a set of interrogatories shall be typed
with all letters capitalized wherever that term appears. No
specially prepared interrogatory shall contain subparts, or a
compound, conjunctive, or disjunctive question.
(6) An interrogatory may relate to whether another party is making
a certain contention, or to the facts, witnesses, and writings on
which a contention is based. An interrogatory is not objectionable
because an answer to it involves an opinion or contention that
relates to fact or the application of law to fact, or would be based
on information obtained or legal theories developed in anticipation
of litigation or in preparation for trial.
(7) An interrogatory may not be made a continuing one so as to
impose on the party responding to it a duty to supplement an answer
to it that was initially correct and complete with later acquired
information.
(8) In addition to the number of interrogatories permitted by
paragraphs (1) and (2), a party may propound a supplemental
interrogatory to elicit any later acquired information bearing on all
answers previously made by any party in response to interrogatories
(1) twice prior to the initial setting of a trial date, and (2)
subject to the time limits on discovery proceedings and motions
provided in Section 2024, once after the initial setting of a trial
date. However, on motion, for good cause shown, the court may grant
leave to a party to propound an additional number of supplemental
interrogatories.
(d) The party propounding interrogatories shall serve a copy of
them (1) on the party to whom they are directed, and (2) on all other
parties who have appeared in the action, unless the court on motion
with or without notice has relieved that party from this requirement
on its determination that service on all other parties would be
unduly expensive or burdensome.
(e) When interrogatories have been propounded, the responding
party, and any other party or affected natural person or organization
may promptly move for a protective order. This motion shall be
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party or other natural person or organization
from unwarranted annoyance, embarrassment, or oppression, or undue
burden and expense. This protective order may include, but is not
limited to, one or more of the following directions:
(1) That the set of interrogatories, or particular interrogatories
in the set, need not be answered.
(2) That, contrary to the representations made in a declaration
submitted under paragraph (3) of subdivision (c), the number of
specially prepared interrogatories is unwarranted.
(3) That the time specified in subdivision (h) to respond to the
set of interrogatories, or to particular interrogatories in the set,
be extended.
(4) That the response be made only on specified terms and
conditions.
(5) That the method of discovery be an oral deposition instead of
interrogatories to a party.
(6) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only in a certain way.
(7) That some or all of the answers to interrogatories be sealed
and thereafter opened only on order of the court.
If the motion for a protective order is denied in whole or in
part, the court may order that the party provide or permit the
discovery against which protection was sought on terms and conditions
that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances made the imposition of the sanction unjust.
(f) The party to whom interrogatories have been propounded shall
respond in writing under oath separately to each interrogatory by (1)
an answer containing the information sought to be discovered, (2) an
exercise of the party's option to produce writings, or (3) an
objection to the particular interrogatory. In the first paragraph of
the response immediately below the title of the case, there shall
appear the identity of the responding party, the set number, and the
identity of the propounding party. Each answer, exercise of option,
or objection in the response shall bear the same identifying number
or letter and be in the same sequence as the corresponding
interrogatory, but the text of that interrogatory need not be
repeated.
(1) Each answer in the response shall be as complete and
straightforward as the information reasonably available to the
responding party permits. If an interrogatory cannot be answered
completely, it shall be answered to the extent possible. If the
responding party does not have personal knowledge sufficient to
respond fully to an interrogatory, that party shall so state, but
shall make a reasonable and good faith effort to obtain the
information by inquiry to other natural persons or organizations,
except where the information is equally available to the propounding
party.
(2) If the answer to an interrogatory would necessitate the
preparation or the making of a compilation, abstract, audit, or
summary of or from the documents of the party to whom the
interrogatory is directed, and if the burden or expense of preparing
or making it would be substantially the same for the party
propounding the interrogatory as for the responding party, it is a
sufficient answer to that interrogatory to refer to this subdivision
and to specify the writings from which the answer may be derived or
ascertained. This specification shall be in sufficient detail to
permit the propounding party to locate and to identify, as readily as
the responding party can, the documents from which the answer may be
ascertained. The responding party shall then afford to the
propounding party a reasonable opportunity to examine, audit, or
inspect these documents and to make copies, compilations, abstracts,
or summaries of them.
(3) If only a part of an interrogatory is objectionable, the
remainder of the interrogatory shall be answered. If an objection is
made to an interrogatory or to a part of an interrogatory, the
specific ground for the objection shall be set forth clearly in the
response. If an objection is based on a claim of privilege, the
particular privilege invoked shall be clearly stated. If an
objection is based on a claim that the information sought is
protected work product under Section 2018, that claim shall be
expressly asserted.
(g) The party to whom the interrogatories are directed shall sign
the response under oath unless the response contains only objections.
If that party is a public or private corporation, or a partnership,
association, or governmental agency, one of its officers or agents
shall sign the response under oath on behalf of that party. If the
officer or agent signing the response on behalf of that party is an
attorney acting in that capacity for the party, that party waives any
lawyer-client privilege and any protection for work product under
Section 2018 during any subsequent discovery from that attorney
concerning the identity of the sources of the information contained
in the response. The attorney for the responding party shall sign
any responses that contain an objection.
(h) Within 30 days after service of interrogatories, or in
unlawful detainer actions within five days after service of
interrogatories the party to whom the interrogatories are propounded
shall serve the original of the response to them on the propounding
party, unless on motion of the propounding party the court has
shortened the time for response, or unless on motion of the
responding party the court has extended the time for response. In
unlawful detainer actions, the party to whom the interrogatories are
propounded shall have five days from the date of service to respond
unless on motion of the propounding party the court has shortened the
time for response. The party to whom the interrogatories are
propounded shall also serve a copy of the response on all other
parties who have appeared in the action, unless the court on motion
with or without notice has relieved that party from this requirement
on its determination that service on all other parties would be
unduly expensive or burdensome.
(i) The party propounding interrogatories and the responding party
may agree to extend the time for service of a response to a set of
interrogatories, or to particular interrogatories in a set, to a date
beyond that provided in subdivision (h). This agreement may be
informal, but it shall be confirmed in a writing that specifies the
extended date for service of a response. Unless this agreement
expressly states otherwise, it is effective to preserve to the
responding party the right to respond to any interrogatory to which
the agreement applies in any manner specified in subdivision (f).
(j) The interrogatories and the response thereto shall not be
filed with the court. The propounding party shall retain both the
original of the interrogatories, with the original proof of service
affixed to them, and the original of the sworn response until six
months after final disposition of the action. At that time, both
originals may be destroyed, unless the court on motion of any party
and for good cause shown orders that the originals be preserved for a
longer period.
(k) If a party to whom interrogatories have been directed fails to
serve a timely response, that party waives any right to exercise the
option to produce writings under subdivision (f), as well as any
objection to the interrogatories, including one based on privilege or
on the protection for work product under Section 2018. However, the
court, on motion, may relieve that party from this waiver on its
determination that (1) the party has subsequently served a response
that is in substantial compliance with subdivision (f), and (2) the
party's failure to serve a timely response was the result of mistake,
inadvertence, or excusable neglect.
The party propounding the interrogatories may move for an order
compelling response to the interrogatories. The court shall impose a
monetary sanction under Section 2023 against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a
response to interrogatories, unless it finds that the one subject to
the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust. If a party
then fails to obey an order compelling answers, the court may make
those orders that are just, including the imposition of an issue
sanction, an evidence sanction, or a terminating sanction under
Section 2023. In lieu of or in addition to that sanction, the court
may impose a monetary sanction under Section 2023.
(l) If the propounding party, on receipt of a response to
interrogatories, deems that (1) an answer to a particular
interrogatory is evasive or incomplete, (2) an exercise of the option
to produce documents under paragraph (2) of subdivision (f) is
unwarranted or the required specification of those documents is
inadequate, or (3) an objection to an interrogatory is without merit
or too general, that party may move for an order compelling a further
response. This motion shall be accompanied by a declaration stating
facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion.
Unless notice of this motion is given within 45 days of the
service of the response, or any supplemental response, or on or
before any specific later date to which the propounding party and the
responding party have agreed in writing, the propounding party
waives any right to compel a further response to the interrogatories.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel a further response to interrogatories,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a party then fails to obey an order compelling further response
to interrogatories, the court may make those orders that are just,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Section 2023. In lieu of or in
addition to that sanction, the court may impose a monetary sanction
under Section 2023.
(m) Without leave of court, a party may serve an amended answer to
any interrogatory that contains information subsequently discovered,
inadvertently omitted, or mistakenly stated in the initial
interrogatory. At the trial of the action, the propounding party or
any other party may use the initial answer under subdivision (n), and
the responding party may then use the amended answer.
The party who propounded an interrogatory to which an amended
answer has been served may move for an order that the initial answer
to that interrogatory be deemed binding on the responding party for
the purpose of the pending action. This motion shall be accompanied
by a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of each issue presented by the
motion. The court shall grant this motion if it determines that (1)
the initial failure of the responding party to answer the
interrogatory correctly has substantially prejudiced the party who
propounded the interrogatory, (2) the responding party has failed to
show substantial justification for the initial answer to that
interrogatory, and (3) the prejudice to the propounding party cannot
be cured either by a continuance to permit further discovery or by
the use of the initial answer under subdivision (n).
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to deem binding an initial answer to an
interrogatory, unless it finds that the one subject to the sanction
acted with substantial justification or that other circumstances make
the imposition of the sanction unjust.
(n) At the trial or any other hearing in the action, so far as
admissible under the rules of evidence, the propounding party or any
party other than the responding party may use any answer or part of
an answer to an interrogatory only against the responding party. It
is not ground for objection to the use of an answer to an
interrogatory that the responding party is available to testify, has
testified, or will testify at the trial or other hearing.
2031. (a) Any party may obtain discovery within the scope delimited
by Section 2017, and subject to the restrictions set forth in
Section 2019, by inspecting documents, tangible things, and land or
other property that are in the possession, custody, or control of any
other party to the action.
(1) A party may demand that any other party produce and permit the
party making the demand, or someone acting on that party's behalf,
to inspect and to copy a document that is in the possession, custody,
or control of the party on whom the demand is made.
(2) A party may demand that any other party produce and permit the
party making the demand, or someone acting on that party's behalf,
to inspect and to photograph, test, or sample any tangible things
that are in the possession, custody, or control of the party on whom
the demand is made.
(3) A party may demand that any other party allow the party making
the demand, or someone acting on that party's behalf, to enter on
any land or other property that is in the possession, custody, or
control of the party on whom the demand is made, and to inspect and
to measure, survey, photograph, test, or sample the land or other
property, or any designated object or operation on it.
(b) A defendant may make a demand for inspection without leave of
court at any time. A plaintiff may make a demand for inspection
without leave of court at any time that is 10 days after the service
of the summons on, or in unlawful detainer actions within five days
after service of the summons on or appearance by, the party to whom
the demand is directed, whichever occurs first. However, on motion
with or without notice, the court, for good cause shown, may grant
leave to a plaintiff to make an inspection demand at an earlier time.
(c) A party demanding an inspection shall number each set of
demands consecutively. In the first paragraph immediately below the
title of the case, there shall appear the identity of the demanding
party, the set number, and the identity of the responding party.
Each demand in a set shall be separately set forth, identified by
number or letter, and shall do all of the following:
(1) Designate the documents, tangible things, or land or other
property to be inspected either by specifically describing each
individual item or by reasonably particularizing each category of
item.
(2) Specify a reasonable time for the inspection that is at least
30 days after service of the demand, or in unlawful detainer actions
at least five days after service of the demand, unless the court for
good cause shown has granted leave to specify an earlier date.
(3) Specify a reasonable place for making the inspection, copying,
and performing any related activity.
(4) Specify any related activity that is being demanded in
addition to an inspection and copying, as well as the manner in which
that related activity will be performed, and whether that activity
will permanently alter or destroy the item involved.
(d) The party demanding an inspection shall serve a copy of the
inspection demand on the party to whom it is directed and on all
other parties who have appeared in the action.
(e) In addition to the inspection demands permitted by this
section, a party may propound a supplemental demand to inspect any
later acquired or discovered documents, tangible things, or land or
other property that are in the possession, custody, or control of the
party on whom the demand is made (1) twice prior to the initial
setting of a trial date, and (2) subject to the time limits on
discovery proceedings and motions provided in Section 2024, once
after the initial setting of a trial date. However, on motion, for
good cause shown, the court may grant leave to a party to propound an
additional number of supplemental demands for inspection.
(f) When an inspection of documents, tangible things or places has
been demanded, the party to whom the demand has been directed, and
any other party or affected person or organization, may promptly move
for a protective order. This motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of each issue presented by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party or other natural person or organization
from unwarranted annoyance, embarrassment, or oppression, or undue
burden and expense. This protective order may include, but is not
limited to, one or more of the following directions:
(1) That all or some of the items or categories of items in the
inspection demand need not be produced or made available at all.
(2) That the time specified in subdivision (i) to respond to the
set of inspection demands, or to a particular item or category in the
set, be extended.
(3) That the place of production be other than that specified in
the inspection demand.
(4) That the inspection be made only on specified terms and
conditions.
(5) That a trade secret or other confidential research,
development, or commercial information not be disclosed, or be
disclosed only to specified persons or only in a specified way.
(6) That the items produced be sealed and thereafter opened only
on order of the court.
If the motion for a protective order is denied in whole or in
part, the court may order that the party to whom the demand was
directed provide or permit the discovery against which protection was
sought on terms and conditions that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(g) The party to whom an inspection demand has been directed shall
respond separately to each item or category of item by a statement
that the party will comply with the particular demand for inspection
and any related activities, a representation that the party lacks the
ability to comply with the demand for inspection of a particular
item or category of item, or an objection to the particular demand.
In the first paragraph of the response immediately below the title
of the case, there shall appear the identity of the responding
party, the set number, and the identity of the demanding party. Each
statement of compliance, each representation, and each objection in
the response shall bear the same number and be in the same sequence
as the corresponding item or category in the demand, but the text of
that item or category need not be repeated.
(1) A statement that the party to whom an inspection demand has
been directed will comply with the particular demand shall state that
the production, inspection, and related activity demanded will be
allowed either in whole or in part, and that all documents or things
in the demanded category that are in the possession, custody, or
control of that party and to which no objection is being made will be
included in the production.
Any documents demanded shall either be produced as they are kept
in the usual course of business, or be organized and labeled to
correspond with the categories in the demand. If necessary, the
responding party at the reasonable expense of the demanding party
shall, through detection devices, translate any data compilations
included in the demand into reasonably usable form.
(2) A representation of inability to comply with the particular
demand for inspection shall affirm that a diligent search and a
reasonable inquiry has been made in an effort to comply with that
demand. This statement shall also specify whether the inability to
comply is because the particular item or category has never existed,
has been destroyed, has been lost, misplaced, or stolen, or has never
been, or is no longer, in the possession, custody, or control of the
responding party. The statement shall set forth the name and
address of any natural person or organization known or believed by
that party to have possession, custody, or control of that item or
category of item.
(3) If only part of an item or category of item in an inspection
demand is objectionable, the response shall contain a statement of
compliance, or a representation of inability to comply with respect
to the remainder of that item or category. If the responding party
objects to the demand for inspection of an item or category of item,
the response shall (A) identify with particularity any document,
tangible thing, or land falling within any category of item in the
demand to which an objection is being made, and (B) set forth clearly
the extent of, and the specific ground for, the objection. If an
objection is based on a claim of privilege, the particular privilege
invoked shall be stated. If an objection is based on a claim that
the information sought is protected work product under Section 2018,
that claim shall be expressly asserted.
(h) The party to whom the demand for inspection is directed shall
sign the response under oath unless the response contains only
objections. If that party is a public or private corporation or a
partnership or association or governmental agency, one of its
officers or agents shall sign the response under oath on behalf of
that party. If the officer or agent signing the response on behalf
of that party is an attorney acting in that capacity for a party,
that party waives any lawyer-client privilege and any protection for
work product under Section 2018 during any subsequent discovery from
that attorney concerning the identity of the sources of the
information contained in the response. The attorney for the
responding party shall sign any responses that contain an objection.
(i) Within 30 days after service of an inspection demand, or in
unlawful detainer actions within five days of an inspection demand,
the party to whom the demand is directed shall serve the original of
the response to it on the party making the demand, and a copy of the
response on all other parties who have appeared in the action, unless
on motion of the party making the demand the court has shortened the
time for response, or unless on motion of the party to whom the
demand has been directed, the court has extended the time for
response. In unlawful detainer actions, the party to whom the demand
is directed shall have at least five days from the date of service
of the demand to respond unless on motion of the party making the
demand the court has shortened the time for the response.
(j) The party demanding an inspection and the responding party may
agree to extend the time for service of a response to a set of
inspection demands, or to particular items or categories of items in
a set, to a date beyond that provided in subdivision (i). This
agreement may be informal, but it shall be confirmed in a writing
that specifies the extended date for service of a response. Unless
this agreement expressly states otherwise, it is effective to
preserve to the responding party the right to respond to any item or
category of item in the demand to which the agreement applies in any
manner specified in subdivision (g).
(k) The inspection demand and the response to it shall not be
filed with the court. The party demanding an inspection shall retain
both the original of the inspection demand, with the original proof
of service affixed to it, and the original of the sworn response
until six months after final disposition of the action. At that
time, both originals may be destroyed, unless the court, on motion of
any party and for good cause shown, orders that the originals be
preserved for a longer period.
(l) If a party to whom an inspection demand has been directed
fails to serve a timely response to it, that party waives any
objection to the demand, including one based on privilege or on the
protection for work product under Section 2018. However, the court,
on motion, may relieve that party from this waiver on its
determination that (1) the party has subsequently served a response
that is in substantial compliance with subdivision (g), and (2) the
party's failure to serve a timely response was the result of mistake,
inadvertence, or excusable neglect.
The party making the demand may move for an order compelling
response to the inspection demand. The court shall impose a monetary
sanction under Section 2023 against any party, person, or attorney
who unsuccessfully makes or opposes a motion to compel a response to
an inspection demand, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust. If a party
then fails to obey the order compelling a response, the court may
make those orders that are just, including the imposition of an issue
sanction, an evidence sanction, or a terminating sanction under
Section 2023. In lieu of or in addition to that sanction, the court
may impose a monetary sanction under Section 2023.
(m) If the party demanding an inspection, on receipt of a response
to an inspection demand, deems that (1) a statement of compliance
with the demand is incomplete, (2) a representation of inability to
comply is inadequate, incomplete, or evasive, or (3) an objection in
the response is without merit or too general, that party may move for
an order compelling further response to the demand. This motion (A)
shall set forth specific facts showing good cause justifying the
discovery sought by the inspection demand, and (B) shall be
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of any issue presented
by it.
Unless notice of this motion is given within 45 days of the
service of the response, or any supplemental response, or on or
before any specific later date to which the demanding party and the
responding party have agreed in writing, the demanding party waives
any right to compel a further response to the inspection demand.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel further response to an inspection demand,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a party fails to obey an order compelling further response, the
court may make those orders that are just, including the imposition
of an issue sanction, an evidence sanction, or a terminating sanction
under Section 2023. In lieu of or in addition to that sanction, the
court may impose a monetary sanction under Section 2023.
(n) If a party filing a response to a demand for inspection under
subdivision (g) thereafter fails to permit the inspection in
accordance with that party's statement of compliance, the party
demanding the inspection may move for an order compelling compliance.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel compliance with an inspection demand,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a party then fails to obey an order compelling inspection, the
court may make those orders that are just, including the imposition
of an issue sanction, an evidence sanction, or a terminating sanction
under Section 2023. In lieu of or in addition to that sanction, the
court may impose a monetary sanction under Section 2023.
2031.5. In any action, regardless of who is the moving party, where
(a) the boundary of land patented or otherwise granted by the state
is in dispute, or (b) the validity of any state patent or grant dated
prior to 1950 is in dispute, all parties shall have the duty to
disclose to all opposing parties all nonprivileged relevant written
evidence then known and available, including evidence against
interest, relating to the above issues. This evidence shall be
disclosed within 120 days after the filing with the court of proof of
service upon all named defendants. Thereafter, the parties shall
have the continuing duty to make all subsequently discovered relevant
and nonprivileged written evidence available to the opposing
parties.
2032. (a) Any party may obtain discovery, subject to the
restrictions set forth in Section 2019, by means of a physical or
mental examination of (1) a party to the action, (2) an agent of any
party, or (3) a natural person in the custody or under the legal
control of a party, in any action in which the mental or physical
condition (including the blood group) of that party or other person
is in controversy in the action.
(b) A physical examination conducted under this section shall be
performed only by a licensed physician or other appropriate licensed
health care practitioner. A mental examination conducted under this
section shall be performed only by a licensed physician, or by a
licensed clinical psychologist who holds a doctoral degree in
psychology and has had at least five years of postgraduate experience
in the diagnosis of emotional and mental disorders. Nothing in this
section affects tests under the Uniform Act on Blood Tests to
Determine Paternity (Chapter 2 (commencing with Section 7550) of Part
2 of Division 12 of the Family Code).
(c) (1) As used in this subdivision, plaintiff includes a
cross-complainant, and defendant includes a cross-defendant.
(2) In any case in which a plaintiff is seeking recovery for
personal injuries, any defendant may demand one physical examination
of the plaintiff, provided the examination does not include any
diagnostic test or procedure that is painful, protracted, or
intrusive, and is conducted at a location within 75 miles of the
residence of the examinee. A defendant may make this demand without
leave of court after that defendant has been served or has appeared
in the action, whichever occurs first. This demand shall specify the
time, place, manner, conditions, scope, and nature of the
examination, as well as the identity and the specialty, if any, of
the physician who will perform the examination.
(3) A physical examination demanded under this subdivision shall
be scheduled for a date that is at least 30 days after service of the
demand for it unless on motion of the party demanding the
examination the court has shortened this time.
(4) The defendant shall serve a copy of the demand for this
physical examination on the plaintiff and on all other parties who
have appeared in the action.
(5) The plaintiff to whom this demand for a physical examination
has been directed shall respond to the demand by a written statement
that the examinee will comply with the demand as stated, will comply
with the demand as specifically modified by the plaintiff, or will
refuse, for reasons specified in the response, to submit to the
demanded physical examination. Within 20 days after service of the
demand the plaintiff to whom the demand is directed shall serve the
original of the response to it on the defendant making the demand,
and a copy of the response on all other parties who have appeared in
the action, unless on motion of the defendant making the demand the
court has shortened the time for response, or unless on motion of the
plaintiff to whom the demand has been directed, the court has
extended the time for response.
(6) If a plaintiff to whom this demand for a physical examination
has been directed fails to serve a timely response to it, that
plaintiff waives any objection to the demand. However, the court, on
motion, may relieve that plaintiff from this waiver on its
determination that (A) the plaintiff has subsequently served a
response that is in substantial compliance with paragraph (5), and
(B) the plaintiff's failure to serve a timely response was the result
of mistake, inadvertence, or excusable neglect.
The defendant may move for an order compelling response and
compliance with a demand for a physical examination. The court shall
impose a monetary sanction under Section 2023 against any party,
person, or attorney who unsuccessfully makes or opposes a motion to
compel response and compliance with a demand for a physical
examination, unless it finds that the one subject to the sanction
acted with substantial justification or that other circumstances make
the imposition of the sanction unjust.
If a plaintiff then fails to obey the order compelling response
and compliance, the court may make those orders that are just,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Section 2023. In lieu of or in
addition to that sanction the court may impose a monetary sanction
under Section 2023.
(7) If a defendant who has demanded a physical examination under
this subdivision, on receipt of the plaintiff's response to that
demand, deems that any modification of the demand, or any refusal to
submit to the physical examination is unwarranted, that defendant may
move for an order compelling compliance with the demand. This
motion shall be accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel compliance with a demand for a physical
examination, unless it finds that the one subject to the sanction
acted with substantial justification or that other circumstances make
the imposition of the sanction unjust.
(8) The demand for a physical examination and the response to it
shall not be filed with the court. The defendant shall retain both
the original of the demand, with the original proof of service
affixed to it, and the original response until six months after
final disposition of the action. At that time, the original may be
destroyed, unless the court, on motion of any party and for good
cause shown, orders that the originals be preserved for a longer
period.
(d) If any party desires to obtain discovery by a physical
examination other than that described in subdivision (c), or by a
mental examination, the party shall obtain leave of court. The
motion for the examination shall specify the time, place, manner,
conditions, scope, and nature of the examination, as well as the
identity and the specialty, if any, of the person or persons who will
perform the examination. The motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
to arrange for the examination by an agreement under subdivision
(e). Notice of the motion shall be served on the person to be
examined and on all parties who have appeared in the action.
The court shall grant a motion for a physical or mental
examination only for good cause shown. If a party stipulates that
(1) no claim is being made for mental and emotional distress over and
above that usually associated with the physical injuries claimed,
and (2) no expert testimony regarding this usual mental and emotional
distress will be presented at trial in support of the claim for
damages, a mental examination of a person for whose personal injuries
a recovery is being sought shall not be ordered except on a showing
of exceptional circumstances. The order granting a physical or
mental examination shall specify the person or persons who may
perform the examination, and the time, place, manner, diagnostic
tests and procedures, conditions, scope, and nature of the
examination. If the place of the examination is more than 75 miles
from the residence of the person to be examined, the order to submit
to it shall be (1) made only on the court's determination that there
is good cause for the travel involved, and (2) conditioned on the
advancement by the moving party of the reasonable expenses and costs
to the examinee for travel to the place of examination.
(e) In lieu of the procedures and restrictions specified in
subdivisions (c) and (d), any physical or mental examination may be
arranged by, and carried out under, a written agreement of the
parties.
(f) If a party required by subdivision (c), (d), or (e) to submit
to a physical or mental examination fails to do so, the court, on
motion of the party entitled to the examination, may make those
orders that are just, including the imposition of an issue sanction,
an evidence sanction, or a terminating sanction under Section 2023.
In lieu of or in addition to that sanction, the court may, on motion
of the party, impose a monetary sanction under Section 2023.
If a party required by subdivision (c), (d), or (e) to produce
another for a physical or mental examination fails to do so, the
court, on motion of the party entitled to the examination, may make
those orders that are just, including the imposition of an issue
sanction, an evidence sanction, or a terminating sanction under
Section 2023, unless the party failing to comply demonstrates an
inability to produce that person for examination. In lieu of or in
addition to that sanction, the court may impose a monetary sanction
under Section 2023.
(g) (1) The attorney for the examinee or for a party producing the
examinee, or that attorney's representative, shall be permitted to
attend and observe any physical examination conducted for discovery
purposes, and to record stenographically or by audiotape any words
spoken to or by the examinee during any phase of the examination.
This observer may monitor the examination, but shall not participate
in or disrupt it. If an attorney's representative is to serve as the
observer, the representative shall be authorized to so act by a
writing subscribed by the attorney which identifies the
representative.
If in the judgment of the observer the examiner becomes abusive to
the examinee or undertakes to engage in unauthorized diagnostic
tests and procedures, the observer may suspend it to enable the party
being examined or producing the examinee to make a motion for a
protective order. If the observer begins to participate in or
disrupt the examination, the person conducting the physical
examination may suspend the examination to enable the party at whose
instance it is being conducted to move for a protective order.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
If the examinee submits or authorizes access to X-rays of any area
of his or her body for inspection by the examining physician, no
additional X-rays of that area may be taken by the examining
physician except with consent of the examinee or on order of the
court for good cause shown.
(2) The examiner and examinee shall have the right to record a
mental examination on audio tape. However, nothing in this article
shall be construed to alter, amend, or affect existing case law with
respect to the presence of the attorney for the examinee or other
persons during the examination by agreement or court order.
(h) If a party submits to, or produces another for, a physical or
mental examination in compliance with a demand under subdivision (c),
an order of court under subdivision (d), or an agreement under
subdivision (e), that party has the option of making a written demand
that the party at whose instance the examination was made deliver to
the demanding party (1) a copy of a detailed written report setting
out the history, examinations, findings, including the results of all
tests made, diagnoses, prognoses, and conclusions of the examiner,
and (2) a copy of reports of all earlier examinations of the same
condition of the examinee made by that or any other examiner. If
this option is exercised, a copy of these reports shall be delivered
within 30 days after service of the demand, or within 15 days of
trial, whichever is earlier. The protection for work product under
Section 2018 is waived, both for the examiner's writings and reports
and to the taking of the examiner's testimony.
If the party at whose instance the examination was made fails to
make a timely delivery of the reports demanded, the demanding party
may move for an order compelling their delivery. This motion shall
be accompanied by a declaration stating facts showing a reasonable
and good faith attempt at an informal resolution of any issue
presented by the motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel delivery of medical reports, unless it
finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
If a party then fails to obey an order compelling delivery of
demanded medical reports, the court may make those orders that are
just, including the imposition of an issue sanction, an evidence
sanction, or a terminating sanction under Section 2023. In lieu of
or in addition to those sanctions, the court may impose a monetary
sanction under Section 2023. The court shall exclude at trial the
testimony of any examiner whose report has not been provided by a
party.
(i) By demanding and obtaining a report of a physical or mental
examination under subdivision (h), or by taking the deposition of the
examiner, other than under subdivision (i) of Section 2034, the
party who submitted to, or produced another for, a physical or mental
examination waives in the pending action, and in any other action
involving the same controversy, any privilege, as well as any
protection for work product under Section 2018, that the party or
other examinee may have regarding reports and writings as well as the
testimony of every other physician, psychologist, or licensed health
care practitioner who has examined or may thereafter examine the
party or other examinee in respect of the same physical or mental
condition.
(j) A party receiving a demand for a report under subdivision (h)
is entitled at the time of compliance to receive in exchange a copy
of any existing written report of any examination of the same
condition by any other physician, psychologist, or licensed health
care practitioner. In addition, that party is entitled to receive
promptly any later report of any previous or subsequent examination
of the same condition, by any physician, psychologist, or licensed
health care practitioner.
If a party who has demanded and received delivery of medical
reports under subdivision (h) fails to deliver existing or later
reports of previous or subsequent examinations, a party who has
complied with subdivision (h) may move for an order compelling
delivery of medical reports. This motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of each issue presented by the motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel delivery of medical reports, unless it
finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
If a party then fails to obey an order compelling delivery of
medical reports, the court may make those orders that are just,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Section 2023. In lieu of or in
addition to the sanction, the court may impose a monetary sanction
under Section 2023. The court shall exclude at trial the testimony
of any health care practitioner whose report has not been provided by
a party ordered to do so by the court.
(k) Nothing in this section shall require the disclosure of the
identity of an expert consulted by an attorney in order to make the
certification required in an action for professional negligence under
Sections 411.30 and 411.35.
2033. (a) Any party may obtain discovery within the scope delimited
by Section 2017, and subject to the restrictions set forth in
Section 2019, by a written request that any other party to the action
admit the genuineness of specified documents, or the truth of
specified matters of fact, opinion relating to fact, or application
of law to fact. A request for admission may relate to a matter that
is in controversy between the parties.
(b) A defendant may make requests for admission by a party without
leave of court at any time. A plaintiff may make requests for
admission by a party without leave of court at any time that is 10
days after the service of the summons on, or, in unlawful detainer
actions, five days after the service of the summons on, or appearance
by, that party, whichever occurs first. However, on motion with or
without notice, the court, for good cause shown, may grant leave to a
plaintiff to make requests for admission at an earlier time.
(c) (1) No party shall request, as a matter of right, that any
other party admit more than 35 matters that do not relate to the
genuineness of documents. If the initial set of admission requests
does not exhaust this limit, the balance may be requested in
subsequent sets. Unless a declaration as described in paragraph (3)
has been made, a party need only respond to the first 35 admission
requests served that do not relate to the genuineness of documents,
if that party states an objection to the balance under paragraph (2)
of subdivision (f) on the ground that the limit has been exceeded.
The number of requests for admission of the genuineness of
documents is not limited except as justice requires to protect the
responding party from unwarranted annoyance, embarrassment,
oppression, or undue burden and expense.
(2) Subject to the right of the responding party to seek a
protective order under subdivision (e), any party who attaches a
supporting declaration as described in paragraph (3) may request a
greater number of admissions by another party if the greater number
is warranted by the complexity or the quantity of the existing and
potential issues in the particular case.
If the responding party seeks a protective order on the ground
that the number of requests for admission is unwarranted, the
propounding party shall have the burden of justifying the number of
requests for admission.
(3) Any party who is requesting or who has already requested more
than 35 admissions not relating to the genuineness of documents by
any other party shall attach to each set of requests for admissions a
declaration containing substantially the following words:
DECLARATION FOR ADDITIONAL DISCOVERY
I, _______, declare:
1. I am (a party to this action or proceeding appearing in
propria persona) (presently the attorney for ______, a party to this
action or proceeding).
2. I am propounding to ____ the attached set of requests for
admission.
3. This set of requests for admission will cause the total number
of requests propounded to the party to whom they are directed to
exceed the number of requests permitted by paragraph (1) of
subdivision (c) of Section 2033 of the Code of Civil Procedure.
4. I have previously propounded a total of ____ requests for
admission to this party.
5. This set of requests for admission contains a total of ____
requests.
6. I am familiar with the issues and the previous discovery
conducted by all of the parties in this case.
7. I have personally examined each of the requests in this set of
requests for admission.
8. This number of requests for admission is warranted under
paragraph (2) of subdivision (c) of Section 2033 of the Code of Civil
Procedure because ____. (Here state the reasons why the complexity
or the quantity of issues in the instant lawsuit warrant this number
of requests for admission.)
9. None of the requests in this set of requests is being
propounded for any improper purpose, such as to harass the party, or
the attorney for the party, to whom it is directed, or to cause
unnecessary delay or needless increase in the cost of litigation.
I declare under penalty of perjury under the laws of California
that the foregoing is true and correct, and that this declaration was
executed on _____.
_______________________________________
(Signature)
Attorney for _________________________
(4) A party requesting admissions shall number each set of
requests consecutively. In the first paragraph immediately below the
title of the case, there shall appear the identity of the party
requesting the admissions, the set number, and the identity of the
requesting party, the set number, and the identity of the responding
party. Each request for admission in a set shall be separately set
forth and identified by letter or number.
(5) Each request for admission shall be full and complete in and
of itself. No preface or instruction shall be included with a set of
admission requests unless it has been approved under Section 2033.5.
Any term specially defined in a request for admission shall be
typed with all letters capitalized whenever the term appears. No
request for admission shall contain subparts, or a compound,
conjunctive, or disjunctive request unless it has been approved under
Section 2033.5.
(6) A party requesting an admission of the genuineness of any
documents shall attach copies of those documents to the requests, and
shall make the original of those documents available for inspection
on demand by the party to whom the requests for admission are
directed.
(7) No party shall combine in a single document requests for
admission with any other method of discovery.
(d) The party requesting admissions shall serve a copy of them on
the party to whom they are directed and on all other parties who have
appeared in the action.
(e) When requests for admission have been made, the responding
party may promptly move for a protective order. This motion shall be
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party from unwarranted annoyance,
embarrassment, oppression, or undue burden and expense. This
protective order may include, but is not limited to, one or more of
the following directions:
(1) That the set of admission requests, or particular requests in
the set, need not be answered at all.
(2) That, contrary to the representations made in a declaration
submitted under paragraph (3) of subdivision (c), the number of
admission requests is unwarranted.
(3) That the time specified in subdivision (h) to respond to the
set of admission requests, or to particular requests in the set, be
extended.
(4) That a trade secret or other confidential research,
development, or commercial information not be admitted or be admitted
only in a certain way.
(5) That some or all of the answers to requests for admission be
sealed and thereafter opened only on order of the court.
If the motion for a protective order is denied in whole or in
part, the court may order that the responding party provide or permit
the discovery against which protection was sought on terms and
conditions that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(f) The party to whom requests for admission have been directed
shall respond in writing under oath separately to each request. Each
response shall answer the substance of the requested admission, or
set forth an objection to the particular request. In the first
paragraph of the response immediately below the title of the case,
there shall appear the identity of the responding party, the set
number, and the identity of the requesting party. Each answer or
objection in the response shall bear the same identifying number or
letter and be in the same sequence as the corresponding request, but
the text of the particular request need not be repeated.
(1) Each answer in the response shall be as complete and
straightforward as the information reasonably available to the
responding party permits. Each answer shall (A) admit so much of the
matter involved in the request as is true, either as expressed in
the request itself or as reasonably and clearly qualified by the
responding party, (B) deny so much of the matter involved in the
request as is untrue, and (C) specify so much of the matter involved
in the request as to the truth of which the responding party lacks
sufficient information or knowledge. If a responding party gives
lack of information or knowledge as a reason for a failure to admit
all or part of a request for admission, that party shall state in the
answer that a reasonable inquiry concerning the matter in the
particular request has been made, and that the information known or
readily obtainable is insufficient to enable that party to admit the
matter.
(2) If only a part of a request for admission is objectionable,
the remainder of the request shall be answered. If an objection is
made to a request or to a part of a request, the specific ground for
the objection shall be set forth clearly in the response. If an
objection is based on a claim of privilege, the particular privilege
invoked shall be clearly stated. If an objection is based on a claim
that the matter as to which an admission is requested is protected
work product under Section 2018, that claim shall be expressly
asserted.
(g) The party to whom the requests for admission are directed
shall sign the response under oath, unless the response contains only
objections. If that party is a public or private corporation, or a
partnership or association or governmental agency, one of its
officers or agents shall sign the response under oath on behalf of
that party. If the officer or agent signing the response on behalf
of that party is an attorney acting in that capacity for the party,
that party waives any lawyer-client privilege and any protection for
work product under Section 2018 during any subsequent discovery from
that attorney concerning the identity of the sources of the
information contained in the response. The attorney for the
responding party shall sign any response that contains an objection.
(h) Within 30 days after service of requests for admission, or in
unlawful detainer actions within five days after service of requests
for admission, the party to whom the requests are directed shall
serve the original of the response to them on the requesting party,
and a copy of the response on all other parties who have appeared,
unless on motion of the requesting party the court has shortened the
time for response, or unless on motion of the responding party the
court has extended the time for response. In unlawful detainer
actions, the party to whom the request is directed shall have at
least five days from the date of service to respond unless on motion
of the requesting party the court has shortened the time for
response.
(i) The party requesting admissions and the responding party may
agree to extend the time for service of a response to a set of
admission requests, or to particular requests in a set, to a date
beyond that provided in subdivision (h). This agreement may be
informal, but it shall be confirmed in a writing that specifies the
extended date for service of a response. Unless this agreement
expressly states otherwise, it is effective to preserve to the
responding party the right to respond to any request for admission to
which the agreement applies in any manner specified in subdivision
(f). Notice of this agreement shall be given by the responding party
to all other parties who were served with a copy of the request.
(j) The requests for admission and the response to them shall not
be filed with the court. The party requesting admissions shall
retain both the original of the requests for admission, with the
original proof of service affixed to them, and the original of the
sworn response until six months after final disposition of the
action. At that time, both originals may be destroyed, unless the
court, on motion of any party and for good cause shown, orders that
the originals be preserved for a longer period.
(k) If a party to whom requests for admission have been directed
fails to serve a timely response, that party thereby waives any
objection to the requests, including one based on privilege or on the
protection for work product under Section 2018. However, the court,
on motion, may relieve that party from this waiver on its
determination that (1) the party has subsequently served a response
that is in substantial compliance with subdivision (f), and (2) the
party's failure to serve a timely response was the result of mistake,
inadvertence, or excusable neglect.
The requesting party may move for an order that the genuineness of
any documents and the truth of any matters specified in the requests
be deemed admitted, as well as for a monetary sanction under Section
2023. The court shall make this order, unless it finds that the
party to whom the requests for admission have been directed has
served, before the hearing on the motion, a proposed response to the
requests for admission that is in substantial compliance with
paragraph (1) of subdivision (f). It is mandatory that the court
impose a monetary sanction under Section 2023 on the party or
attorney, or both, whose failure to serve a timely response to
requests for admission necessitated this motion.
(l) If the party requesting admissions, on receipt of a response
to the requests, deems that (1) an answer to a particular request is
evasive or incomplete, or (2) an objection to a particular request is
without merit or too general, that party may move for an order
compelling a further response. The motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of each issue presented by the motion.
Unless notice of this motion is given within 45 days of the
service of the response, or any supplemental response, or any
specific later date to which the requesting party and the responding
party have agreed in writing, the requesting party waives any right
to compel further response to the requests for admission.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel further response, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
If a party then fails to obey an order compelling further response
to requests for admission, the court may order that the matters
involved in the requests be deemed admitted. In lieu of or in
addition to this order, the court may impose a monetary sanction
under Section 2023.
(m) A party may withdraw or amend an admission made in response to
a request for admission only on leave of court granted after notice
to all parties. The court may permit withdrawal or amendment of an
admission only if it determines that the admission was the result of
mistake, inadvertence, or excusable neglect, and that the party who
obtained the admission will not be substantially prejudiced in
maintaining that party's action or defense on the merits. The court
may impose conditions on the granting of the motion that are just,
including, but not limited to, an order that (1) the party who
obtained the admission be permitted to pursue additional discovery
related to the matter involved in the withdrawn or amended admission,
and (2) the costs of any additional discovery be borne in whole or
in part by the party withdrawing or amending the admission.
(n) Any matter admitted in response to a request for admission is
conclusively established against the party making the admission in
the pending action, unless the court has permitted withdrawal or
amendment of that admission under subdivision (m). However, any
admission made by a party under this section is (1) binding only on
that party, and (2) made for the purpose of the pending action only.
It is not an admission by that party for any other purpose, and it
shall not be used in any manner against that party in any other
proceeding.
(o) If a party fails to admit the genuineness of any document or
the truth of any matter when requested to do so under this section,
and if the party requesting that admission thereafter proves the
genuineness of that document or the truth of that matter, the party
requesting the admission may move the court for an order requiring
the party to whom the request was directed to pay the reasonable
expenses incurred in making that proof, including reasonable attorney'
s fees. The court shall make this order unless it finds that (1) an
objection to the request was sustained or a response to it was waived
under subdivision (l), (2) the admission sought was of no
substantial importance, (3) the party failing to make the admission
had reasonable ground to believe that that party would prevail on the
matter, or (4) there was other good reason for the failure to admit.
2033.5. (a) The Judicial Council shall develop and approve official
form interrogatories and requests for admission of the genuineness
of any relevant documents or of the truth of any relevant matters of
fact for use in any civil action in a state court based on personal
injury, property damage, wrongful death, unlawful detainer, breach of
contract, family law, or fraud and for any other civil actions the
Judicial Council deems appropriate. Use of the approved form
interrogatories and requests for admission shall be optional.
(b) In developing the form interrogatories and requests for
admission required by this section, the Judicial Council shall
consult with a representative advisory committee which shall include,
but not be limited to, representatives of the plaintiff's bar, the
defense bar, the public interest bar, court administrators, and the
public. The form interrogatories and requests for admission shall be
drafted in nontechnical language and shall be made available through
the office of the clerk of the appropriate trial court.
(c) The Judicial Council also shall promulgate any necessary rules
to govern the use of the form interrogatories and requests for
admission.
(d) The Judicial Council shall develop and approve official form
interrogatories for use by a victim who has not received complete
payment of a restitution order made pursuant to Section 1202.4 of the
Penal Code.
(e) Notwithstanding whether a victim initiates or maintains an
action to satisfy the unpaid restitution order, a victim may propound
the form interrogatories approved pursuant to this section once each
calendar year. The defendant subject to the restitution order
shall, in responding to the interrogatories propounded, provide
current information regarding the nature, extent, and location of any
assets, income, and liabilities in which the defendant claims a
present or future interest.
(f) This section shall become operative on January 1, 2000.
2034. (a) After the setting of the initial trial date for the
action, any party may obtain discovery by demanding that all parties
simultaneously exchange information concerning each other's expert
trial witnesses to the following extent:
(1) Any party may demand a mutual and simultaneous exchange by all
parties of a list containing the name and address of any natural
person, including one who is a party, whose oral or deposition
testimony in the form of an expert opinion any party expects to offer
in evidence at the trial.
(2) If any expert designated by a party under paragraph (1) is a
party or an employee of a party, or has been retained by a party for
the purpose of forming and expressing an opinion in anticipation of
the litigation or in preparation for the trial of the action, the
designation of that witness shall include or be accompanied by an
expert witness declaration under paragraph (2) of subdivision (f).
(3) Any party may also include a demand for the mutual and
simultaneous production for inspection and copying of all
discoverable reports and writings, if any, made by any expert
described in paragraph (2) in the course of preparing that expert's
opinion.
This section does not apply to exchanges of lists of experts and
valuation data in eminent domain proceedings under Chapter 7
(commencing with Section 1258.010) of Title 7 of Part 3.
(b) Any party may make a demand for an exchange of information
concerning expert trial witnesses without leave of court. A party
shall make this demand no later than the 10th day after the initial
trial date has been set, or 70 days before that trial date, whichever
is closer to the trial date.
(c) A demand for an exchange of information concerning expert
trial witnesses shall be in writing and shall identify, below the
title of the case, the party making the demand. The demand shall
state that it is being made under this section.
The demand shall specify the date for the exchange of lists of
expert trial witnesses, expert witness declarations, and any demanded
production of writings. The specified date of exchange shall be 50
days before the initial trial date, or 20 days after service of the
demand, whichever is closer to the trial date, unless the court, on
motion and a showing of good cause, orders an earlier or later date
of exchange.
(d) The party demanding an exchange of information concerning
expert trial witnesses shall serve the demand on all parties who have
appeared in the action.
(e) A party who has been served with a demand to exchange
information concerning expert trial witnesses may promptly move for a
protective order. This motion shall be accompanied by a declaration
stating facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party from unwarranted annoyance,
embarrassment, oppression, or undue burden and expense. The
protective order may include, but is not limited to, one or more of
the following directions:
(1) That the demand be quashed because it was not timely served.
(2) That the date of exchange be earlier or later than that
specified in the demand.
(3) That the exchange be made only on specified terms and
conditions.
(4) That the production and exchange of any reports and writings
of experts be made at a different place or at a different time than
specified in the demand.
(5) That some or all of the parties be divided into sides on the
basis of their identity of interest in the issues in the action, and
that the designation of any experts as described in paragraph (2) of
subdivision (a) be made by any side so created.
(6) That a party or a side reduce the list of employed or retained
experts designated by that party or side under paragraph (2) of
subdivision (a).
If the motion for a protective order is denied in whole or in
part, the court may order that the parties against whom the motion is
brought, provide or permit the discovery against which the
protection was sought on those terms and conditions that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(f) All parties who have appeared in the action shall exchange
information concerning expert witnesses in writing on or before the
date of exchange specified in the demand. The exchange of
information may occur at a meeting of the attorneys for the parties
involved or by a mailing on or before the date of exchange.
(1) The exchange of expert witness information shall include
either of the following:
(A) A list setting forth the name and address of any person whose
expert opinion that party expects to offer in evidence at the trial.
(B) A statement that the party does not presently intend to offer
the testimony of any expert witness.
(2) If any witness on the list is an expert as described in
paragraph (2) of subdivision (a), the exchange shall also include or
be accompanied by an expert witness declaration signed only by the
attorney for the party designating the expert, or by that party if
that party has no attorney. This declaration shall be under penalty
of perjury and shall contain:
(A) A brief narrative statement of the qualifications of each
expert.
(B) A brief narrative statement of the general substance of the
testimony that the expert is expected to give.
(C) A representation that the expert has agreed to testify at the
trial.
(D) A representation that the expert will be sufficiently familiar
with the pending action to submit to a meaningful oral deposition
concerning the specific testimony, including any opinion and its
basis, that the expert is expected to give at trial.
(E) A statement of the expert's hourly and daily fee for providing
deposition testimony and for consulting with the retaining attorney.
(g) If a demand for an exchange of information concerning expert
trial witnesses includes a demand for production of reports and
writings as described in paragraph (3) of subdivision (a), all
parties shall produce and exchange, at the place and on the date
specified in the demand, all discoverable reports and writings, if
any, made by any designated expert described in paragraph (2) of
subdivision (a).
(h) Within 20 days after the exchange described in subdivision
(f), any party who engaged in the exchange may submit a supplemental
expert witness list containing the name and address of any experts
who will express an opinion on a subject to be covered by an expert
designated by an adverse party to the exchange, if the party
supplementing an expert witness list has not previously retained an
expert to testify on that subject. This supplemental list shall be
accompanied by an expert witness declaration under paragraph (2) of
subdivision (f) concerning those additional experts, and by all
discoverable reports and writings, if any, made by those additional
experts. The party shall also make those experts available
immediately for a deposition under subdivision (i), which deposition
may be taken even though the time limit for discovery under Section
2024 has expired.
(i) On receipt of an expert witness list from a party, any other
party may take the deposition of any person on the list. The
procedures for taking oral and written depositions set forth in
Sections 2025, 2026, 2027, and 2028 apply to a deposition of a listed
trial expert witness except as follows:
(1) The deposition of any expert described in paragraph (2) of
subdivision (a) shall be taken at a place that is within 75 miles of
the courthouse where the action is pending. However, on motion for a
protective order by the party designating an expert witness, and on
a showing of exceptional hardship, the court may order that the
deposition be taken at a more distant place from the courthouse.
(2) A party desiring to depose any expert witness, other than a
party or employee of a party, who is either (A) an expert described
in paragraph (2) of subdivision (a) except one who is a party or an
employee of a party, (B) a treating physician and surgeon or other
treating health care practitioner who is to be asked during the
deposition to express opinion testimony, including opinion or factual
testimony regarding the past or present diagnosis or prognosis made
by the practitioner or the reasons for a particular treatment
decision made by the practitioner, but not including testimony
requiring only the reading of words and symbols contained in the
relevant medical record or, if those words and symbols are not
legible to the deponent, the approximation by the deponent of what
those words or symbols are, or (C) an architect, professional
engineer, or licensed land surveyor, who was involved with the
original project design or survey for which he or she is asked to
express an opinion within his or her expertise and relevant to the
action or proceeding, shall pay the expert's reasonable and customary
hourly or daily fee for any time spent at the deposition from the
time noticed in the deposition subpoena or from the time of the
arrival of the expert witness should that time be later than the time
noticed in the deposition subpoena, until the time the expert
witness is dismissed from the deposition, whether or not the expert
is actually deposed by any party attending the deposition. If any
counsel representing the expert or a nonnoticing party is late to the
deposition, the expert's reasonable and customary hourly or daily
fee for the time period determined from the time noticed in the
deposition subpoena until the counsel's late arrival, shall be paid
by that tardy counsel. However, the hourly or daily fee shall not
exceed the fee charged the party who retained the expert except where
the expert donated his or her services to a charitable or other
nonprofit organization. A daily fee shall only be charged for a full
day of attendance at a deposition or where the expert was required
by the deposing party to be available for a full day and the expert
necessarily had to forego all business he or she would have otherwise
conducted that day but for the request that he or she be available
all day for the scheduled deposition. In a worker's compensation
case arising under Division 4 (commencing with Section 3201) or
Division 4.5 (commencing with Section 6100) of the Labor Code, a
party desiring to depose any expert on another party's expert witness
list shall pay this fee.
The party taking the deposition shall either accompany the service
of the deposition notice with a tender of the expert's fee based on
the anticipated length of the deposition or tender that fee at the
commencement of the deposition. The expert's fee shall be delivered
to the attorney for the party designating the expert. If the
deposition of the expert takes longer than anticipated, the party
giving notice of the deposition shall pay the balance of the expert's
fee within five days of receipt of an itemized statement from the
expert. The party designating the expert is responsible for any fee
charged by the expert for preparing for the deposition and for
traveling to the place of the deposition, as well as for any travel
expenses of the expert.
(3) The service of a proper deposition notice accompanied by the
tender of the expert witness fee described in paragraph (2) is
effective to require the party employing or retaining the expert to
produce the expert for the deposition. If the party noticing the
deposition fails to tender the expert's fee under paragraph (2), the
expert shall not be deposed at that time unless the parties stipulate
otherwise.
(4) If a party desiring to take the deposition of an expert
witness under this subdivision deems that the hourly or daily fee of
that expert for providing deposition testimony is unreasonable, that
party may move for an order setting the compensation of that expert.
This motion shall be accompanied by a declaration stating facts
showing a reasonable and good faith attempt at an informal resolution
of each issue presented by the motion. Notice of this motion shall
also be given to the expert. In any such attempt at an informal
resolution, either the party or the expert shall provide the other
with (A) proof of the ordinary and customary fee actually charged and
received by that expert for similar services provided outside the
subject litigation, (B) the total number of times the presently
demanded fee has ever been charged and received by that expert, and
(C) the frequency and regularity with which the presently demanded
fee has been charged and received by that expert within the two-year
period preceding the hearing on the motion.
In addition to any other facts or evidence, the expert or the
party designating the expert shall provide, and the court's
determination as to the reasonableness of the fee shall be based upon
(A) proof of the ordinary and customary fee actually charged and
received by that expert for similar services provided outside the
subject litigation, (B) the total number of times the presently
demanded fee has ever been charged and received by that expert, and
(C) the frequency and regularity with which the presently demanded
fee has been charged and received by that expert within the two-year
period preceding the hearing on the motion. Provisions (B) and (C)
shall apply to actions filed after January 1, 1994. The court may
also consider the ordinary and customary fees charged by similar
experts for similar services within the relevant community and any
other factors the court deems necessary or appropriate to make its
determination.
Upon a determination that the fee demanded by that expert is
unreasonable, and based upon the evidence and factors considered, the
court shall set the fee of the expert providing testimony.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to set the expert witness fee, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
(j) Except as provided in subdivisions (k), (l), and (m), on
objection of any party who has made a complete and timely compliance
with subdivision (f), the trial court shall exclude from evidence the
expert opinion of any witness that is offered by any party who has
unreasonably failed to do any of the following:
(1) List that witness as an expert under subdivision (f).
(2) Submit an expert witness declaration.
(3) Produce reports and writings of expert witnesses under
subdivision (g).
(4) Make that expert available for a deposition under subdivision
(i).
(k) On motion of any party who has engaged in a timely exchange of
expert witness information, the court may grant leave to (1) augment
that party's expert witness list and declaration by adding the name
and address of any expert witness whom that party has subsequently
retained, or (2) amend that party's expert witness declaration with
respect to the general substance of the testimony that an expert
previously designated is expected to give. This motion shall be made
at a sufficient time in advance of the time limit for the completion
of discovery under Section 2024 to permit the deposition of any
expert to whom the motion relates to be taken within that time limit.
However, under exceptional circumstances, the court may permit the
motion to be made at a later time. This motion shall be accompanied
by a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of each issue presented by the
motion. The demand, and all expert witness lists and declarations
exchanged in response to it, shall be lodged with the court when
their contents become relevant to an issue in any pending matter in
the action. The court shall grant leave to augment or amend an
expert witness list or declaration only after taking into account the
extent to which the opposing party has relied on the list of expert
witnesses, and after determining that any party opposing the motion
will not be prejudiced in maintaining that party's action or defense
on the merits, and that the moving party either (1) would not in the
exercise of reasonable diligence have determined to call that expert
witness or have decided to offer the different or additional
testimony of that expert witness, or (2) failed to determine to call
that expert witness, or to offer the different or additional
testimony of that expert witness as a result of mistake,
inadvertence, surprise, or excusable neglect, provided that the
moving party (1) has sought leave to augment or amend promptly after
deciding to call the expert witness or to offer the different or
additional testimony, and (2) has promptly thereafter served a copy
of the proposed expert witness information concerning the expert or
the testimony described in subdivision (f) on all other parties who
have appeared in the action. Leave shall be conditioned on the
moving party making the expert available immediately for a deposition
under subdivision (i), and on such other terms as may be just,
including, but not limited to, leave to any party opposing the motion
to designate additional expert witnesses or to elicit additional
opinions from those previously designated, a continuance of the trial
for a reasonable period of time, and the awarding of costs and
litigation expenses to any party opposing the motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to augment or amend expert witness information,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances made the
imposition of the sanction unjust.
(l) On motion of any party who has failed to submit expert witness
information on the date specified in a demand for that exchange, the
court may grant leave to submit that information on a later date.
This motion shall be made a sufficient time in advance of the time
limit for the completion of discovery under Section 2024 to permit
the deposition of any expert to whom the motion relates to be taken
within that time limit. However, under exceptional circumstances,
the court may permit the motion to be made at a later time. This
motion shall be accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion.
The court shall grant leave to submit tardy expert witness
information only after taking into account the extent to which the
opposing party has relied on the absence of a list of expert
witnesses, and determining that any party opposing the motion will
not be prejudiced in maintaining that party's action or defense on
the merits, and that the moving party (1) failed to submit that
information as the result of mistake, inadvertence, surprise, or
excusable neglect, (2) sought that leave promptly after learning of
the mistake, inadvertence, surprise, or excusable neglect, and (3)
has promptly thereafter served a copy of the proposed expert witness
information described in subdivision (f) on all other parties who
have appeared in the action. This order shall be conditioned on the
moving party making that expert available immediately for a
deposition under subdivision (i), and on such other terms as may be
just, including, but not limited to, leave to any party opposing the
motion to designate additional expert witnesses or to elicit
additional opinions from those previously designated, a continuance
of the trial for a reasonable period of time, and the awarding of
costs and litigation expenses to any party opposing the motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to submit tardy expert witness information, unless
it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
(m) A party may call as a witness at trial an expert not
previously designated by that party if: (1) that expert has been
designated by another party and has thereafter been deposed under
subdivision (i), or (2) that expert is called as a witness to impeach
the testimony of an expert witness offered by any other party at the
trial. This impeachment may include testimony to the falsity or
nonexistence of any fact used as the foundation for any opinion by
any other party's expert witness, but may not include testimony that
contradicts the opinion.
(n) The demand for an exchange of information concerning expert
trial witnesses, and any expert witness lists and declarations
exchanged shall not be filed with the court. The party demanding the
exchange shall retain both the original of the demand, with the
original proof of service affixed, and the original of all expert
witness lists and declarations exchanged in response to the demand
until six months after final disposition of the action. At that
time, all originals may be destroyed unless the court, on motion of
any party and for good cause shown, orders that the originals be
preserved for a longer period.
2035. (a) One who expects to be a party to any action that may be
cognizable in any court of the State of California, whether as a
plaintiff, or as a defendant, or in any other capacity, may obtain
discovery within the scope delimited by Section 2017, and subject to
the restrictions set forth in Section 2019, for the purpose of
perpetuating that party's own testimony or that of another natural
person or organization, or of preserving evidence for use in the
event an action is subsequently filed. One shall not employ the
procedures of this section for the purpose either of ascertaining the
possible existence of a cause of action or a defense to it, or of
identifying those who might be made parties to an action not yet
filed.
(b) The methods available for discovery conducted for the purposes
set forth in subdivision (a) are (1) oral and written depositions,
(2) inspections of documents, things, and places, and (3) physical
and mental examinations.
(c) One who desires to perpetuate testimony or preserve evidence
for the purposes set forth in subdivision (a) shall file a verified
petition in the superior court of the county of the residence of at
least one expected adverse party, or, if no expected adverse party is
a resident of the State of California, in the superior court of a
county where the action or proceeding may be filed.
(d) The petition shall be titled in the name of the one who
desires the perpetuation of testimony or the preservation of
evidence. The petition shall set forth all of the following:
(1) The expectation that the petitioner will be a party to an
action cognizable in a court of the State of California.
(2) The present inability of the petitioner either to bring that
action or to cause it to be brought.
(3) The subject matter of the expected action and the petitioner's
involvement.
(4) The particular discovery methods described in subdivision (b)
that the petitioner desires to employ.
(5) The facts that the petitioner desires to establish by the
proposed discovery.
(6) The reasons for desiring to perpetuate or preserve these facts
before an action has been filed.
(7) The name or a description of those whom the petitioner expects
to be adverse parties so far as known.
(8) The name and address of those from whom the discovery is to be
sought.
(9) The substance of the information expected to be elicited from
each of those from whom discovery is being sought.
The petition shall request the court to enter an order authorizing
the petitioner to engage in discovery by the described methods for
the purpose of perpetuating the described testimony or preserving the
described evidence.
(e) The petitioner shall cause service of a notice of the petition
to be made on each natural person or organization named in the
petition as an expected adverse party. This service shall be made in
the same manner provided for the service of a summons. The service
of the notice shall be accompanied by a copy of the petition. The
notice shall state that the petitioner will apply to the court at a
time and place specified in the notice for the order requested in the
petition. This service shall be effected at least 20 days prior to
the date specified in the notice for the hearing on the petition.
If after the exercise of due diligence, the petitioner is unable
to cause service to be made on any expected adverse party named in
the petition, the court in which the petition is filed shall make an
order for service by publication. If any expected adverse party
served by publication does not appear at the hearing, the court shall
appoint an attorney to represent that party for all purposes,
including the cross-examination of any person whose testimony is
taken by deposition. The court shall order that the petitioner pay
the reasonable fees and expenses of any attorney so appointed.
(f) If the court determines that all or part of the discovery
requested may prevent a failure or delay of justice, it shall make an
order authorizing that discovery. The order shall identify any
witness whose deposition may be taken, and any documents, things, or
places that may be inspected, and any person whose physical or mental
condition may be examined. Any authorized depositions, inspections,
and physical or mental examinations shall then be conducted in
accordance with the provisions of this article relating to those
methods of discovery in actions that have been filed.
(g) If a deposition to perpetuate testimony has been taken either
under the provisions of this section, or under comparable provisions
of the laws of another state, or the federal courts, or a foreign
nation, that deposition may be used, in any action involving the same
subject matter that is brought in a court of the State of
California, in accordance with subdivision (u) of Section 2025
against any party, or the successor in interest of any party, named
in the petition as an expected adverse party.
2036. (a) If an appeal has been taken from a judgment entered by
any court of the State of California, or if the time for taking an
appeal has not expired, a party may obtain discovery within the scope
delimited by Section 2017, and subject to the restrictions set
forth in Section 2019, for the purpose of perpetuating testimony or
preserving information for use in the event of further proceedings in
that court.
(b) The methods available for discovery for the purpose set forth
in subdivision (a) are (1) oral and written depositions, (2)
inspections of documents, things, and places, and (3) physical and
mental examinations.
(c) A party who desires to obtain discovery pending appeal shall
obtain leave of the court that entered the judgment. This motion
shall be made on the same notice to and service of parties as is
required for discovery sought in an action pending in that court.
(d) The motion for leave to conduct discovery pending appeal shall
set forth (1) the names and addresses of the natural persons or
organizations from whom the discovery is being sought, (2) the
particular discovery methods described in subdivision (b) for which
authorization is being sought, and (3) the reasons for perpetuating
testimony or preserving evidence.
(e) If the court determines that all or part of the discovery
requested may prevent a failure or delay of justice in the event of
further proceedings in the action in that court, it shall make an
order authorizing that discovery. The order shall identify any
witness whose deposition may be taken, and any documents, things, or
places that may be inspected, and any person whose physical or mental
condition may be examined. Any authorized depositions, inspections,
and physical and mental examinations shall then be conducted in
accordance with the provisions of this article relating to these
methods of discovery in a pending action.
(f) If a deposition to perpetuate testimony has been taken under
the provisions of this section, it may be used in any later
proceeding in accordance with subdivision (u) of Section 2025.