The scope and process for discovery in civil cases is governed by different rules and statutes at the federal and California state level. Key differences include:
• Initial Disclosures:
Federal Rule 26 requires initial disclosures automatically, while there is no similar requirement under California law unless requested.
• Timing of Discovery:
Discovery can generally commence earlier in California state court than federal court.
• Responses Due:
Responses to written discovery requests are due 30 days after service in California state court, compared to 30 days after being served in federal court. Parties can stipulate to different response times.
I will explore these rules and statutes around discovery in more detail in the sections below.
Federal Rules of Civil Procedure 26 and 34
The Federal Rules of Civil Procedure (FRCP) regulate discovery in the federal court system.
FRCP 26 - General Provisions Governing Discovery
FRCP 26 covers the general provisions around the scope of discovery, timing, required disclosures, methods of discovery, and related issues. Some key components include:
• Scope:
Discovery extends to nonprivileged matters relevant to a party's claims or defenses. The court can limit discovery that is duplicative, burdensome, or outside the scope of Rule 26(b)(1). [FRCP 26(b)(1)].
• Required Disclosures:
There is a requirement for initial disclosures within 14 days after the parties' Rule 26(f) conference unless otherwise stipulated or ordered. These initial disclosures include names of individuals likely to have discoverable information, copy or description of relevant documents, computation of damages, and insurance agreements potentially covering the claims. [FRCP 26(a)(1)].
• Timing:
Unless otherwise stipulated or ordered, discovery cannot commence until after the Rule 26(f) conference. [FRCP 26(d)] The Rule 26(f) conference must occur at least 21 days before the scheduling conference or order. [FRCP 26(f)].
• Methods of Discovery:
Permitted methods of discovery include depositions, interrogatories, requests for production, physical and mental examinations, and requests for admission.
[FRCP 26(a)] FRCP 34 - Producing Documents and ESI
FRCP 34 specifically covers the production of documents, electronically stored information (ESI), and tangible things. Key components include:
• Requests:
A party may serve requests to inspect, copy, test, or sample documents or ESI in another party's possession or control. The request must describe items sought with reasonable particularity. [FRCP 34(a)].
• Responses:
The party must respond in writing within 30 days after being served. The response must state grounds for objections with specificity. [FRCP 34(b)(2)].
• Production:
Documents and ESI should be produced as kept in usual course of business or organized/labeled to correspond to categories in the request. [FRCP 34(b)(2)(E)].
• Electronically Stored Information (ESI):
If a request does not specify the form of production, a party must produce ESI in a reasonably usable form. It does not need to produce same ESI in more than one form. [FRCP 34(b)(2)(E)].
California Discovery Act
The California Discovery Act in the Code of Civil Procedure governs discovery in California state courts. It does not have direct equivalents to the Federal Rules of Civil Procedure.
Initial Disclosures
There is no automatic initial disclosure requirement under California law. However, parties can demand that opponents provide initial disclosures similar to federal court using:
• CCP §2031.010:
Requires disclosure of names and contact information of individuals likely to have discoverable information.
• CCP §2031.020:
Requires disclosure of copy or description of category of documents, tangible things, land/property, and ESI that may be used to support claims or defenses.
Written Discovery
Key California statutes governing written discovery include:
• CCP §2030.010 et seq.:
Covers requests for production of documents, tangible things, land/property, and ESI.
• CCP §2030.250 et seq.:
Specifies process for compelling further responses to written discovery if responses are evasive, incomplete, or include objections.
• CCP §2031.210 et seq.:
Governs written interrogatories.
Responses to written discovery requests are due 30 days after service under California law. [CCP §2030.260, CCP §2031.260]. The parties can stipulate or the court can order a longer or shorter time frame for responses. [CCP §2030.260(a)] If parties stipulate that responses may be served beyond 30 days, they must specify the time within which responses shall be served. [CCP §2030.260(a)].
Production of Documents and ESI
California has specific requirements around production of documents and ESI:
• Form of Production:
Documents and ESI must be produced in a reasonably usable form. The responding party does not need to produce it in more than one form. [CCP §2031.280]
• Organization:
Documents and ESI should be produced: (1) as kept in the usual course of business, or (2) organized and labeled to correspond with the categories in the request. [CCP §2031.280(e)]
These are similar to the federal requirements but they are contained within different statutory schemes. Key Differences in Discovery Rules While federal and California discovery rules have some similarities, key differences include:
Initial Disclosures
• Federal:
Required automatic initial disclosures within 14 days after Rule 26(f) conference. [FRCP 26(a)(1)].
• California:
No automatic requirement but can be demanded using CCP §2031.010 and §2031.020.
Timing of Discovery
• Federal:
Discovery cannot commence until after Rule 26(f) conference. [FRCP 26(d)].
• California:
Discovery can commence upon filing of complaint. Defendants have access as soon as an appearance is made. [CCP §2017.010].
Responses Due
• Federal: 30 days after being served with discovery request. [FRCP 34(b)(2)].
• California: 30 days after service of discovery request. [CCP §2030.260].
While the rules have some key differences, the advisory committee notes for the federal rules state that they were modeled on the California e-discovery rules. So there are similarities in purpose and scope, if not in exact procedure.
Conclusion
In summary, while federal and California discovery rules aim to make the discovery process fair and efficient, they have some differences in scope, procedure, and deadlines. Key differences covered here include:
• Automatic initial disclosures in federal but not California courts .
• Earlier commencement of discovery permitted in California.
• 30 days after service deadline in California vs. 30 days after being served in federal rules.
However, both require production of documents and ESI in a reasonably usable form. And both provide means to limit discovery or compel further responses when necessary. Understanding these key similarities and differences will allow attorneys and paralegals to effectively navigate discovery in both federal and California courts.
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