The Codes They Are A Changin

Transcription

1 The Codes They Are A Changin Code Civ. Proc., As modified by Chapter 182/A.B (2004) (Operative July 1, 2005 ) by Katherine L. Gallo Assembly Bill 3081 modified the 1986 Discovery Act and becomes operable July 1, On first glance it appears that there has been a wholesale change of the Discovery Act. However, that is not accurate. The legislative modifications are a non-substantive reganization. The existing statutes are broken down into sht sub-sections with headings and closely track the existing language in der to make the statute me user-friendly. The primary code sections remain the same Depositions 2020 and 2025, Interrogaties 2030, Document Production 2031, IME s 2032, Requests f Admission 2033 and Experts 2034 The only substantive change is that Section of the Code of Civil Procedure was revised to incpate the changes made by Assembly Bill It will now reads The following chart will aid you in finding the new code sections.

2 I. DEPOSITIONS Type Commences Closes Time Limit Requirements MT/Conf. Op.Part. Remedies DEPOSITIONS ( ) ( ) A. DISCOVERY 1. Parties a. Testimony Only ( ) b. Testimony and Documents ( ) 2. Nonparty Witnesses a. Testimony Only ( ) summons summons summons 30 days befe ) 30 days befe ( (a) 30 days befe 10-day notice ( (a)) 10-day notice ( (a)) 10-day notice ( (a)) 1 depo per deponent ( (a)) 75 miles from residence within county in which action is pending and within 150 miles of residence ( (a)) Notice to state: nature of deposition date, time, place deponent s rights and duties; and penalties f disobedience subpoena, witness fee and mileage on befe deposition ( (a)(1) (6)) Documents described with reasonable particularity ( (a)(4)) Personal service ( (b),(c)) Written objection due within 3 calendar days ( (a)) Motion f ( (c)) Written objection due within 3 calendar days ( (a)) Motion f ( (c)) Motion f Sanctions Contempt ( ) Katherine Gallo 2005 The Codes They Are A Changin 1

3 Type Commences Closes Time Limit Requirements MT/Conf. Op.Part. Remedies b. Business Recds only ( ) c. Recds and Testimony ( ) summons summons 30 days befe 30 days befe 15-day after service 20 days after issuance. ( (c)) 10-day notice unless consumer recds involved ( (a)(1) & (c)) Notice to state: date, time, place ( (a)) nature of deposition ( (b)(1)) deponent s rights and duties ( (b)(2)) and penalties f disobedience ( (b)(3)) subpoena, witness fee and mileage on befe deposition ( (b)(3)) to recd audio video ( (c), (d) Personal service ( (b)) Documents described with reasonable particularity ( (a)) Personal service ( (b)) Comply with ( (a)(1)) Designate business recds with reasonable particularity ( (a)(2)) Specify any sampling testing ( (a)(3)) Motion f Motion f Sanctions Contempt ( ) Contempt ( ) Katherine Gallo 2005 The Codes They Are A Changin 2

4 Type Commences Closes Time Limit Requirements MT/Conf. Op.Part. Remedies d. Recds of Consumers ( ) summons 30 days befe 5-day notice to consumer and 15-days after service 20 days after issuance ( , (b)) Personal service ( (b)) Notice of Privacy Rights Service at least 10 days befe the date set f production and at least 5 days befe service on the custodian of recds ( (c)) Subpoenaing party s failure to comply with is grounds not to comply with subpoena. ( (k)) Motion f ( , ) Sanctions Contempt ( ) 3. Entity summons 30 days befe 10-day notice unless consumer recds involved ( (a)(1) & (c)) Personal service if entity not a party ( (b)) Notice shall describe with reasonable particularity the matters on which examination is requested. ( (e) & ) Notice shall advise the ganization of its duty to designate and produce most qualified Person ( (e), ) Written objection due within 3 calendar days ( (a)) Motion f ( , ) 4. Expert a. Retained ( ) 10-day notice unless consumer recds involved ( (a)(1) & (c)) Retaining party to bring expert f deposition within 75 miles of court house where the action is pending ( ) Deposing party must tender expert fee pri to deposition ( , ) Need subpoena f documents Written objection due within 3 calendar days ( (a)) Motion f Katherine Gallo 2005 The Codes They Are A Changin 3

5 Type Commences Closes Time Limit Requirements MT/Conf. Op.Part. Remedies b. Independent ( ) 10-day notice unless consumer recds involved ( (a)(1) & (c)) ( citing (b)) Special notice if expert video to be used at trial in lieu of live testimony ( (d)) Personal Service Witness fee and mileage ( ) May have to be paid expert fees ( ) Special notice if expert video to be used at trial in lieu of live testimony ( (d)) Subpoenaing party s failure to comply with is grounds not to comply with subpoena. ( (k)) Sanctions B. MOTIONS 1. Deposition without Documents a. ( , ) b. ( , (c)) c. Compel Answers ( ) Promptly ( ) 60 days after completion of recd of deposition ( (b)) Good Unwarranted, annoyance, embarrassment, oppression undue burden and expense ( (b)) No personal service required ( (c)(3)) Service problems/technical defects No personal service required ( (c)(3)) Notice to all parties and deponent ( (c)) Transcript lodged with court 5 days befe hearing ( (d)) ( (a)) ( (c)) ( (b)) Motion f ( (d)) ( (c)) ( ) ( (d)) ( (f)) ( 639(e)) Katherine Gallo 2005 The Codes They Are A Changin 4

6 Type Commences Closes Time Limit Requirements MT/Conf. Op.Part. Remedies d. Compel Appearance ( ) 2. Deposition with Documents a. Compel Documents 3. Nonparty Depositions a. Subpoena ( (g), ) b. ( , ) c. Compel Compliance ( ) 4. Expert Retained 10 days befe ( ) Independent ( ) None Anytime befe depo date Separate statement of questions in dispute (CRC 335(a),(c)) No personal service required ( (c)(3)) Failed to appear Good ( (b)(1)) Good f document production hearing ( (d)) ( (b)(2)) ( (b)(1)) Sanctions Awarded in fav of any party attending ( , , (c)(2)) Awarded in fav of any party attending ( , , (c)(2)) No good required No ( ) Promptly No good required No ( (c)) No good required Contempt ( ) ( ) Motion requirements are same as f party deposition motions Motion requirements are same as f non-party deponents with counsel who retained expert. Sanctions are same as f motions against a party. No Sanctions are same as f motions against non-party. Katherine Gallo 2005 The Codes They Are A Changin 5

7 II. INTERROGATORIES Type Commences Closes Time Limit Requirements MT/Conf. Op.Part.Rem. Sanctions INTERROGATORIES ( ) A. Discovery 1. Official Fm ( (a)(2)) 2. Specially Prepared ( (b)) Plaintiff: 10 days after service.. ( (b)) Ct. may grant plaintiff leave to propound at an earlier time upon showing of good ( (c)) Plaintiff: 10 days after service.. ( (b)) 30 days befe 30 days befe 3. Supplemental 30 days befe B. Motions 1. ( , ) 30-day notice ( (a)) 30-day notice ( (a)) Promptly ( (a)) On any party ( (a)) Written objections ( (a)(3)) On any party ( (a)) Me than 35 interrogaties with declaration 1. Complexity quantity of issues 2 Depos expensive 3. Expedience of discovery method ( ) On any party ( (b)) Twice pri to initial trial setting conference and once after. ( (a)) Good ( (b)) ( (e)) Written objections ( (a)(3)) Motion f ( ) Written objections ( (a)(3)) Motion f ( ) ( (c)) ( (d)) 2. Compel Answers ( (b)) None No response ( (b)) No Relief from waiver ( (a)) ( (c)) 3. Compel Further Answers ( ) 45 days after response supplemental response ( (c)) Statement of disputed interrogaties and responses (CRC 335(a),(c)) ( (b)) ( (d)) Katherine Gallo 2005 The Codes They Are A Changin 6

8 III. INSPECTION DEMAND Type Commences Closes Time Limit Requirements MT/Conf. Op.Part.Rem. Sanctions INSPECTION DEMAND ( ) A. Discovery 1. Demands ( ) B. Motions 1. ( , ) 2. Compel Answers ( (b)) 3. Compel Further Answers ( ) 4. Compel Compliance ( (a)) Plaintiff: 10 days summons ( (a)) Ct. may grant plaintiff leave to propound at an earlier time upon ( (c)) 30 days befe 30 days ( (c)(2)) Promptly ( (a)) None 45 days after response supplemental response ( (c)) On any party ( (a)) No limit on number Time and place f inspection Description by categy with reasonable particularity ( (c)) Good ( (b)) No response ( (b)) Good showing ( (a)) Statement of disputed requests and responses (CRC 335(a)(c)) ( (a)) No ( (a)) Written objections ( (3), ) Relief from waiver ( (a)) ( (d)) ( (c)) ( (d)) None No ( (b), & (c)) Katherine Gallo 2005 The Codes They Are A Changin 7

9 IV. PHYSICAL/MENTAL EXAM Type Commences Closes Time Limit Requirements MT/Conf. Op.Part.Rem. Sanctions PHYSICAL/MENTAL EXAM ( ) A. Discovery 1. Physical Exam ( ) 2. Mental Exam ( )) B. Motions Compel Response ( (b)) 3. Unsatisfacty Response, Compel Attendance ( ) 4. Enfcing Delivery of Rept ( ) After defendant has been served appeared ( (b)) After defendant has been served appeared ( (b)) 30 days befe 30 days befe ( (a) 30-day notice ( (d)) 20-day response ( (b)) 30-day notice ( (d)) 20-day response ( (b)) No painful protracted intrusive test ( (a)(1)) Within 75 miles of residence ( (a)(2)) Licensed physician other appropriate licensed health care practitioner ( (b)) Specification of scope and tests ( (c)) Rept due within 30 days after demand within 15 days of trial, whichever is earlier ( ) Court der ( (a)) Specification of scope and tests ( (b)) Good ( (a)) Physician clinical psychologist ( (c)) No observers ( (b)) May audiotape ( (a)) promptly No authity under 2032; Maybe None No response ( (b)) ( (c)) ( (b)) None Response ( (a)) ( (a)) None Demand copy of rept ( ) Response in 20 days ( ) Relief from waiver ( (a)) Plaintiff stipulation 1. no claim f unusual mental and emotional distress. 2. No expert testimony regarding the usual mental and emotional distress ( (c)) ( (c)) None ( (c), , ) ( (a)) ( (b), , ) ( (b)) Katherine Gallo 2005 The Codes They Are A Changin 8

10 V. REQUEST FOR ADMISSION Type Commences Closes Time Limit Requirements MT/Conf. Op.Part.Rem. Sanctions REQUEST FOR ADMISSION ( ) A. Discovery 1. Truth Facts ( ) 2. Genuineness of Documents ( ) B. Motions 1. ( )) 2. Establishing Admissions ( ) 3. Compel Further Answers ( (c)) Plaintiff: 10 days summons ( (a)) ( (b)) Plaintiff: 10 days summons ( (a)) ( (b)) Ct. may grant plaintiff leave to propound at an earlier time upon ( (c)) 30 days befe 30 days befe 30-day notice ( ) 30-day notice ( ) Promptly ( (a)) None 45 days after response supplemental response ( (c)) Another party in the action ( ) 35 limit ( (a)) Declaration of necessity complexity the quality of the existing and potential issues ( (a), ) No limit ( (c)) Availability of iginals ( (g)) Unwarranted annoyance, embarrassment, oppression undue burden and expense ( (b)) No response ( (a)) Statement of requests and response to RFA in dispute (CRC 335(a),(c)) ( (a)) No ( (b)) Object in lieu of admitting denying ( )) Object in lieu of admitting denying ( )) Tardy response defeats motion; response must be substantially in compliance ( (b)) ( (d)) Mandaty ( (c)) Monetary ( (d)) Deemed admitted if court der disobeyed ( (e)) Katherine Gallo 2005 The Codes They Are A Changin 9

11 VI. EXPERT WITNESSES Type Commences Closes Time Limit Requirements MT/Conf. Op.Part.Rem. Sanctions EXPERT WITNESSES ( ) A. Discovery 1. Disclosure List ( ) 2. Supplemental List ( ) DEMAND--70 days befe trial 10 days after trial settlement conference, whichever is closer to trial date ( ) 20 days after exchange ( (a)) RESPONSE--50 days befe trial 20 days after demand, whichever is closer to trial date ( ) Simultaneous exchange of (1) expert lists ( (b)) (2) declarations ( (c)) (3) repts of experts ( ) Limited to adding experts in area opposing party named in initial exchange ( (a)) Served expert witness declaration in compliance with CCP ( (a)) Exclusion of expert by motion in limine ( ) B. Motions 1. ( ) 2. Augment List ( ) 3. Submit Tardy Expert Infmation ( ) Promptly ( (a)) Sufficient time, befe 15-day cutoff ( (b)) Sufficient time, befe 15-day cutoff ( (b)) Good ( (b)) No prejudice ( (a),(b)) Excuse reasonable diligence could not have found out ( (c)(1),(2)) Infmation served ( (c)(2)(B)) Experts available f deposition ( (d)) No prejudice ( (a),(b)) Excuse reasonable diligence could not have found out ( (c)(1),(2)) Infmation served ( (c)(2)(B)) Experts available f deposition ( (c)) ( (c)) ( (c)) ( (d)) ( ) ( (d)) ( ) Katherine Gallo 2005 The Codes They Are A Changin 10

12 ( (d)) Katherine Gallo 2005 The Codes They Are A Changin 11