I wrote this post back in June about the almost deadlocked status of litigation since the beginning of the pandemic. While some courts are still incredibly lagging behind (giving priority to criminal cases as soon as they look “back to normal”), other courts have been surprisingly quick to adopt new processes and technology in the second half of 2020. As a trial, hearings and even status conferences have resumed in most of the districts in which we operate. We expect litigation in general to slowly but surely resume over the course of 2021.
In any case, California has scheduled “case management conferences” – these are relatively quick and easy procedures where the parties advise the court on status. Once all of the defendants have been served and / or answered, the court usually sets a trial date that is around 1 to 2 years. This trial date triggers a variety of pre-trial deadlines, perhaps the most important of which is the deadline for completing the discovery (30 days prior to the trial date, although you want to make sure you get your final round of inquiries well timed before the test case movement practice is necessary to get answers). The parties spend most of their time and money in discovery.
We often work with first-time litigants, and regardless of whether they are plaintiffs or defendants, it is usually surprising how much work is required in the discovery phase (this is especially true for some of our international clients!) – interrogation, inspection of Documents, deposits, and regulatory filings, not to mention the disputes and movement practices that are often at stake. Since we expect the litigation to be more active this year, here’s a brief introduction to the four primary detection methods used in California:
Interrogation procedure (form and special) – Code of Civil Procedure § 2030.010 ff.
These practices are generally construed liberally in favor of disclosure. The courts allow motions to be made unless they are clearly inappropriate. The whole purpose of the discovery is for the parties to obtain information they need to establish their claims or defend themselves. That’s not to say that there are no protections for legitimate confidentiality, privacy, or property interests, but these standards are high and potentially difficult to prove.
Questions are written questions that require written answers. California employs “form” interrogatories and “special” interrogatories. The former is just that – the Council of Justice has developed and approved an eight-page form of questions that a party can simply tick boxes to answer. This is not mandatory, but a very quick and inexpensive first step. Not to mention, since objections have already been approved by the Judicial Council, they rarely persist.
Special questions are specific questions that should be tailored to the claims and defenses of the individual case. In California, each party can propose up to thirty-five special interrogation procedures without asking questions. If there is a need to propose more, requests must be accompanied by a statement explaining why more than thirty-five are justified (i.e. the number of claims or defenses, the complexity of the issues, etc.).
Inspection of documents, things and places – Code of Civil Procedure § 2031.010 ff.
Either party may request to inspect the relevant documents, things or objects of another party upon discovery. The purpose of this mechanism is to allow the parties to review any hard evidence in this case in its original form. All parties to a dispute are required to retain evidence. For our cannabis customers, this usually includes everything from organizational documents to financial documents to inspections of the pharmacies in question.
Deposits – Code of Civil Procedure § 2025.010 ff.
Filings are question-and-answer sessions that take place in person, with a court reporter transcribing everything at the same time. Witnesses are often prepared beforehand and may even be required to review certain documents or company procedures (e.g. if you testify as the “most knowledgeable person” in your company).
California also allows written statements, although they are rarely used. In such cases, the questions must be attached to the deposit notice, after which there are deadlines for the delivery of cross questions, forwarding questions, and re-crossing questions.
Applications for authorization – Code of Civil Procedure § 2033.010
Admission requests are written requests for a party to recognize the authenticity of certain documents or the truth of a fact, an opinion on a fact, or the application of the law to a fact. Filing for approval is different from everything else mentioned above because they’re not looking for facts – they’re trying to figure them out. In my opinion, regulatory filings can be the most powerful tool for discovery when used correctly and at the right time – not just to get the parties to understand their respective strengths and weaknesses, but also to ensure that future trials or legal proceedings are in place the way they are as efficient as possible.
Litigation is an investment of time and money, and we hope this post helps outline the process for those who are currently involved or are thinking about it in 2021. For those contemplating litigation in Oregon, I recommend reading my colleague Jesse’s post on the Discovery of Cases in Oregon. Happy 2021 and here it is to achieve a new (and hopefully better) “normal” this year.