Discovery Flashcards

Question

Responding to RFA (Deadlines/Extensions/Rule for Doc/Service/Verification/What happens if you miss deadline)

Answer 1

30 calendar days to respond Plus any additional time depending on the method of service Important docs that require careful calendaring May agree on extension of deadline for service of response to RFA Agreement may be informal, but it shall be confirmed in writing that specifies the extended date of notice of such an agreement shall be given by the responding party to all other parties who were served with a copy of the request Serve original of the response on the requesting party, a copy of the response on all the other parties who've appeared in the case Response must be verified If deadline to response is missed, the propounding party can make a motion to deem the admission made and the responding party can lose the case

Answer 2

Serve original of the response on the requesting party, and a copy of the response on all other parties who've appeared in case Response must be verfied  pursuant to Code of Civil Procedure, section 2033.210 …upon request by the responding party, the propounding party shall provide the requests for admission in an electronic format to the responding party within three court days of the request …upon request by the propounding party after receipt of the responses to the requests for admission, the responding party shall provide the responses in an electronic format to the propounding party within 3 court days of the request *A responding party who has requested and received requests for admission in an electronic format…shall include the text of the request immediately preceding the response 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

Answer 3

Any party may demand (request) another party to produce and to permit inspection and copying of docs (medical records etc.) or tangible items (photos, videos) in that party’s possession, custody or control A party can also request inspection of land/vehicles There is no limit to the number of demands that can be served on a party The is no JC form so request is prepared in pleading format Written response to demand is due 30 days after service of demand, depending on manner of service Also known as Notice to Produce and Request for Production

Answer 4

30 calendar days to provide written verified response, plus any additional time depending on method of service Production due date (as opposed to written response to request) must be at least 30 days from service; can be different than date the written response is due Need to calendar both due dates for both: Both written response/production of docs can be prepared as one document Written response: States whether or not the responding party will comply with the demand and, if not, why; also contains objections if relevant Production Response: Contains the documents themselves; typically combined with the written response

Answer 5

Copies of docs, photos, etc., are provided to the propounding party along with the original response pleading In the first paragraph of the response immediately below the title of the case, there shall appear rhe identity of the responding party, the ser number, and the ID of the demanding (propounding) party Each written response/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 Code of Civil Procedure, section 2031.280 Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond Unless otherwise agreed upon: If a demand for production does not specify a form/forms for producing a type of electronically stored information, the responding party shall produce the information in the form/forms in which it is ordinarily maintained or in a form that is reasonably usable A party need not produce the same electronically stored information in more than one form

Answer 6

A deposition is procedure wherein oral or written testimony, under oath, is obtained through direct examination and cross-examination of a party or witness in advance of a trial or hearing and preserved in writing and audio/visual technology. Deposition is taken before an officer authorized to administer an oath/affirmation, typically a certified shorthand reporter and is then printed in book format, which is called a deposition transcript Deponent (person whose deposition is taken) is allowed to read the deposition transcript Depo transcript may be offered at trial Depo is the only discovery procedure in which evidence is obtained from parties, nonparty witnesses In order to depose a nonparty witness in deposition, service of a deposition subpoena on the nonparty witness is required CCP 2025.290 Depo of witness by all counsel, other than the witness’ counsel of record, shall not exceed 7 hours of total testimony CCP 2025.290(b) Several exceptions to 7 hour rule, including for expert witnesses and complex cases CCP 2025.610(a) Only ONE deposition can be taken per deponent

Answer 7

Oral deposition must be scheduled at least 10 days after service of deposition notice (CCP 2025.270(a)) Deposition notice must contain: (CCP 2025.220) Address where deposition will take place Date/time Name of deponent (w/ address and phone number, if known, as well as whether or not deponent is a party to the action) If witness is to bring docs, w/ specifications as to what those docs are, including any electronically stored information Any intention to record the testimony with audio/visual technology Statement that whomever is conducting deposition has made arrangements to use particular officer/entity to provide services for depo If deponent is not a person (a corp for example) depo notice shall describe with reasonable particularity the matters on which examination is requested Original notice and POS are kept by the noticing party and copies are served on all parties whove appeared in action If deponent is non-party, must serve a depo subpoena as well If you are noticing party, schedule a court reporter/reserve a conference room Be sure to ask attorney/paralegal if in-person/remote If needed, arrange for interpreters prior to depo

Answer 8

Location of Depo of a natural person, whether or not a party to the action, is at the option of the party giving notice, must be within: 75 miles of deponent’s residence OR Within county where the action is pending and within 150 miles of deponent's residence Depo of an organization that is a party to the action, is at the option of the party giving notice and must be within: 75 miles of the org’s principle executive/business office in CA OR Within county where the action pending and within 150 miles of that office Depo of an org not a party to action, is at the option of the party giving notice and must be: 75 miles of the org’s principle exec/business office in CA OR: If no such office in CA, depo must either take place within county wherein action is pending, or within 75 miles of any executive/business office in CA

Answer 9

If your client’s deposition has been noticed, be sure that your client is notified as soon as possible to make sure they are available – your attorney may do this, or instruct you to contact the client Remember – not much time! Send this notice to docketing ASAP – there are deadlines to object and you don’t want to miss the date to appear Notify noticing party immediately if your client needs an interpreter Attorney may want to schedule a “pre-deposition” or “depo prep” meeting prior to the deposition date If documents are requested, need to coordinate

Answer 10

Transcript of depo is prepared by court reporter Deponent is allowed an opportunity to review and make necessary correction Has 30 days from court reporter's notice to make/submit any corrections All parties must be advised of changes made The noticing side usually retains original depo transcript Original depo transcript is usually sent in sealed envelope—DO NOT OPEN ENVELOPE—put in file for relevant matter, in case it goes to trial, where original transcripts are lodged with court

Answer 11

A subpoena is an order issued under authority of the court to compel attendance of a non-party witness at a judicial proceeding—such as a deposition Issued/signed by attorney 3 types: Deposition Subpoena - Personal Appearance Only; Deposition Subpoena - Business Records Only; Deposition Subpoena - Personal Appearance and Production of Docs Subpoena only is served to intended non-party deponent, process server take care of POS Subpoena cannot be sub-served Notice of depo WITH a copy of the subpoena is served on all parties who have appeared in the action Witness fees are $35 per day plus $.20 per mile (roundtrip) from deponents residence As governed by Government Code section 68093 Fees provided either at time of service or at depo, send check with your attorney Fee must be paid before depo if witness so requests

Answer 12

Mandatory JC form SUBP-015 For when non-party witnesses’ appearance is required to personally testify, but no docs are required Must be personally served on witness, not mailed or sub-served Must be served in sufficient time before depo date (min. 10 days prior to depo) Originals are kept by noticing party

Answer 13

Mandatory JC form SUBP-020 For when non-party witness’s appearance is required to personally testify and produce docs Must be personally served on witness Originals kept by noticing parties Notice of depo w/ copy of the subpoena must be served on all parties to the action at least 10 days prior

Answer 14

Mandatory JC Form SUBP-010 Used when business record of the non-party are needed Must designate the records to be produced in item 3 or attachment 3 Originals kept by noticing party Notice of depo NOT REQUIRED But copy of subpoena must be served on all parties to the action at least 10 days prior to production date Non-party witness is required to produce original or copy of the documents requested to a “professional photocopier,” which is usually designated by the requesting party on the form Many qualified copy services or process serve firms will prepare and serve the subpoena, give notice, obtain records, advance appropriate fees, and provide copies to all parties who request them

Answer 15

Personally serve custodian of record: Authorized rep of company Non-party witnesses entitled to ‘reasonable costs’ incurred in furnishing records Payment of fees not required at moment of service, but can also pay at time of service even if not requested Witness may demand fees at time of delivery or at any time prior to production Time—production date must not be earlier than 20 days after issuance of the subpoena, or 15 days after service of subpoena, whichever is later Some reaonsable costs include: 10 cents oer page, 20 cents oer page for copying from microfilm, actual costs for oversized docs Reasonable clerical costs incurred in locating and making records available—billed at a max rate of $24/hour per person Actual Postage charges: and actual cost of retrieval and return of records held offsite Witness must submit an itemized statement to requesting party

Answer 16

Mandatory JC form SUBP-025 If personal records are sought, party must be notified with a Notice to Consumer Personal records include medical records, school records, employment records, insurance records, bank statements Notice to consumer must be served on consumer or, if a party, their attorney of record: Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by section 1013 if service is by mail At least 5 days prior to service upon the custodian of the records, plus the additional time provided by section 1013 if service is by mail

Answer 17

If cop or gov employee Witness fee is $275, must be provided when subpoena is served If amount of time taken for depo is more than a day’s salary, noticing party will be billed by the public entity of the witness A notice of deposition with a copy of the appropriate subpoena must be served on all parties to the action at least 10 days prior to the depo Service If peace officer, may be served by delivering subpoena either to the person or by delivering two copies to their immediate superior at the public entity by which he/she is employed or an agent designated by that immediate superior to receive that service Any other state employee can be served the same way

Answer 18

Any defendant may demand one physical exam of a plaintiff who is seeking recovery for personal injuries Scheduled for a date at least 30 days after service of the demand Shall specify the time, place, manner, conditions, scope and nature of exam, and ID and specialty, if any, of the physician who will perform the exam Exam must not include any diagnostic test or procedure that is painful, protracted or intrusive Exam conducted at a location within 75 miles of the residence of the examinee Serve a copy of the demand on the plaintiff and on all other parties who have appeared in the action Code of civil procedure section 2032.220 Within 20 days after service of demand, plaintiff must respond in writing stating either: Will comply with demand as stated; will comply with demand modified by plaintiff; will refuse, for reasons specified Once exam has been completed, examined party can request a copy of physicians written report from noticing party Once requested, noticing party must deliver copy of report within 30 days after service of the demand, or within 15 days of trial, whichever is earlier

Answer 19

Within 20 days after service of demand, plaintiff must respond in writing stating either: Will comply with demand as stated; will comply with demand modified by plaintiff; will refuse, for reasons specified Once exam has been completed, examined party can request a copy of physicians written report from noticing party Once requested, noticing party must deliver copy of report within 30 days after service of the demand, or within 15 days of trial, whichever is earlier

Answer 20

Must obtain leave of court, by motion Motion shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person/persons who will perform the exam Shall be accompanied by a meet and confer declaration under section 2016.040

Answer 21

Original response is sent to the responding party Copies of the response is sent to all other parties who have appeared in the action Keep a copy in the office file with the original POS Responses prepared in pleading format Responses numbered consecutively pursuant to question (response to quesiton 3.1 is response 3.1) 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 (propounding party)

Discovery Flashcards

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