Blog
July 19, 2010
By Barbara Haubrich-Hass, ACP/CAS
California Code of Civil Procedure Section 2019.020 details the sequence and timing of discovery. It states that “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.” It also states, however, that “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 interest of justice.” In my experience, an attorney will not file a motion for the sequence and timing of discovery in California state court unless there is exceptional circumstances of a particular case, such as multiple issues that must be resolved, multiple motions that must be heard simultaneously, multiple discovery disputes between the attorneys, and/or the number of documents to be reviewed require an inordinate amount of time. If a case requires the court's involvement, the judge will most likely assign a discovery referee to the case.
There is no right or wrong in the timing of discovery, but there are some general concepts which do merit discussion. For the most part, the best sequence in discovery is to serve Interrogatories, Request for Production of Documents, and/or Request for Admissions [written discovery] prior to setting a deposition. An attorney will generally want the initial written discovery responses received before a party deposition is taken so that the attorney can narrow the issues and review all documents produced before a deposition is taken.
However, obtaining the best advantage by the use of one form of discovery over the other often involves careful consideration by the attorney of how the various discovery devices should be used with respect to one another. There are occasions when the attorney will determine that a deposition should be conducted first with follow-up written discovery or no written discovery served at all. If the information needed is factual in nature, those issues may be most effectively examined by deposition first. Cutting to the chase on some important factual issues through the use of deposition testimony first provides the attorney with the information needed and the opportunity to obtain spontaneous answers to questions. In contrast, written discovery enables the responding party, and his/her counsel, to carefully and meticulously formulate the answers, and it is less likely that written discovery will reveal the same information in the responding party’s version of the facts.
On the other hand, written discovery has its purpose. Written discovery may inquire about the other party’s contentions, identification of witnesses, and location of relevant documents. Once this information is obtained in response to the written discovery, the attorney can begin to refine and focus the remaining discovery by taking the depositions of the individuals identified, particularly where the deponents will be deposed regarding the contents of documents.
The paralegal’s role: It is appropriate for a paralegal to form a discovery plan by providing recommendations to the attorney on discovery issues, including the sequence of discovery. It is also appropriate for a paralegal to follow an attorney’s standard model of discovery sequence unless otherwise instructed by the attorney. The bottom line, however, is that it is up to the attorney to approve the discovery plan, and it is the paralegal’s job to implement the plan.
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DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this newsletter, or to any other website to which this e-zine/article may be linked.
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