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The Discovery Process-Section 1.
Discovery is the process of gathering and amassing evidence
and information for the
purpose of establishing, proving and/or
disproving a particular
facts contention or allegation and to
disprove the facts alleged by the
litigant opponent. In the
litigation process each party gather everything
that he/she
believes is necessary to prove his/her allegations. The discovery
process is also utilized by the litigant to ascertain, by the discovery
process, what the defenses the opponent
has, and what evidence the
opponent has to support the alleged defenses. Through discovery
and investigation each party thus attempts to accumulate relevent
evidence
that will prove his case and that will defeat the opponents
allegations
and defenses.
A wise
attorney
once said do not get involved in litigation unless
you
are
prepared to do
the appropriate investigation discovery.
You have head of
the old adage
"don't ask a
witness a question -of which you don't
already know the answer." How does the attoney "already know the answer"-
yes you guessed it -through investigation and discovery.
The purpose of a trial is not to learn something
for the first time.
It is the time to prove to the court or jury what
you
already know
- and
to present evidence you have gained in discovery
to establish
and prove the elements of the cause of action and all
facts essential
to your position and contentions.
The litigator should in
advance of trial know who is going to testify,
what
they will say,
what they will testify to and what documents and
other things tangible or intangible will be
produced and
offered into
evidence. All this information is obtained
through the utilization of the
discovery process and investigation. And armed with legal
authority
in support of
any
objection to evidence and authority to
support
the evidence
you intend
to introduce at the trial.
Distinction In Criminal Cases.
Distinction In Criminal Cases.
Discovery in criminal cases is a much different and a more limited process.
Discovery is criminal cases in not discussed here. For discovery in
criminal cases consult
www.ecaliforniacriminallaw.com
3. The California Code of Civil Procedure specifies the types of
discovery that may be undertake and the process of undertaking
such discovery.
Types of Discovery Permitted By The Code of Civil Proicedure.
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.
5. The California Code of civil Procedure Specifies
Certain
Conduct That May be An
Abuse of the Discovery Process.
Section 2023 of the Code of Civil Procedure provides an illustrative
list of misuses of the discovery process:
(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 submit to an authorized method of
discovery.
(5) Making, without substantial justification, an unmeritorious
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 . . . with an opposing party . . . in a
reasonable and good faith attempt to resolve informally any
dispute concerning discovery . . ..
The 1986 Act also changed the law to make sanctions mandatory.
If a misuse of the discovery process is established, the court must
impose sanctions unless it makes a finding that the party subject
to the sanctions acted with substantial justification, or that there
are other circumstances that would make imposition of the
sanctions unjust.
6. California Code of civil Procedure Specifies the
Types of Sanctions
That May Be Imposed for Abuse of The Discovery Process
Section 2023 defines five varieties of sanctions: Monetary
Sanctions, Issue Sanctions, Evidence Sanctions, Terminating
Sanctions, and Contempt Sanctions. Monetary sanctions are
usually the amount of costs and attorneys fees that a party has
incurred in making a motion to compel responses to discovery.
The amount is typically established by a declaration of the moving
party's attorney. The court is not bound to award the full amount
requested, however, but will award an amount that it believes will
provide reasonable compensate the moving party.
Issue sanctions involve an order of the court that specified facts
are established. In an marital dissolution case, for example, the
court imposed issue sanctions against a husband who refused to
comply with orders to respond to the wife's discovery requests
about community assets. The order precluded the husband from
offering any evidence, making any objections, or cross-examining
the wife's witnesses on property issues. (In re Marriage of
Economou (1990) 224 Cal.App.3d 1466, 1473 [274 Cal.Rptr.
473].) The court accepted the wife's version of the evidence and
denied the husband an opportunity to give his version, or
challenge the wife's version. The sanction, in essence, established
the property issues adversely to the husband.
An evidence sanction is an order that bars a party from
introducing evidence on designated matters. Evidence sanctions
were imposed against the plaintiffs in Do It Urself Moving &
Storage, Inc. v. Brown, Leifer, Slatkin Berns (1992) 7 Cal.App.4th
27 [9 Cal.Rptr. 396]. Their misuse of discovery involved a failure
to produce audit reports. After having over a year to produce the
report, the plaintiffs produced only a six-page summary without
documentation. The trial court entered an order that precluded
the plaintiffs from introducing any accounting evidence, and
granted a motion by the defendants for summary judgment.
Although summary judgment was reversed on appeal, the
appellate court upheld imposition of evidentiary sanctions. (Id., at
pp. 35-37.)
Terminating sanctions are even more severe. A terminating
sanction may consist of an order that strikes a portion of a
plaintiff's complaint, or a defendant's answer. A terminating
sanction may also be an order that halts proceedings until the
offending party obeys a discovery order. The court may also
dismiss all or a portion of an action, and enter default judgment.
In Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611 [26
Cal.Rptr. 786], the defendants committed a wide variety misuses
of discovery. They failed to provide a verification under penalty of
perjury for some of their discovery responses, they failed to
respond to some requests, and answered others with a stock
phrase that they were compiling the information, but had not
finished the compilation. (Id., at p. 1614.) The court granted a
motion to compel discovery, and imposed monetary sanctions.
The defendants were late in complying with the court's order, and
their tardy responses continued what the court described as
"gamesmanship." (Collisson & Kaplan, supra (1994) 21
Cal.App.4th at p,. 1615.) The court thereupon granted a motion to
strike the defendant's answer. As a result, a default judgment in
excess of $100,000 was entered against the defendant.
The final sanction authorized by section 2023 is the contempt
sanction. A court is authorized to treat a misuse of discovery as a
contempt of court. Contempt of court may be punished by a fine
of up to $1,000, imprisonment up to five days, and or community
service, all in addition to the moving party's costs and expenses
incurred in connection with the contempt proceeding. (Code Civ.
Proc., § 1218.)
Limits on hte number of INterrogatories and Request for admissios
Using The Judicial council Forms
Special Interrogatories
Glossaries
Directory Table of
Contents
Glossaries
Directory Table of
Contents
Privilege of Defendant in Criminal Case .......930 hhh
California Evidence Code Sections-950-962-Lawyer-Client-Official Site
California Evidence Code-Official Site
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