Eugene E. Kinsey, Attorney at Law

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Sources Of Discovery Law

Formal discovery rights and procedures in all civil cases are governed by the California Civil Discovery Act (Ca Civ Pro § 2016.010 et seq.) and, in family law proceedings, by supplemental discovery provisions contained in the Family Code (including the statutory declarations of disclosure) and California Rules of Court. California law governs discovery in cases pending in this state even though the discovery is carried out in another state. [International Ins. Co. v. Montrose Chem. Corp. of Calif. (1991) 231 Cal.App.3d 1367, 1371, 282 Cal.Rptr. 783, 785]

Scope Of Discovery

General Rule - Broad Discovery Rights: As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. [Ca Civ Pro § 2017.010] In marital proceedings, this general rule effectively means almost everything is discoverable (except to the extent compelled disclosure would unreasonably infringe third party privacy rights).

Relevancy Requirement: For discovery purposes, "relevancy" is tested by a much broader standard than that applied at trial for the introduction of evidence. So long as the information sought "appears reasonably calculated" to reveal admissible evidence, it is within the allowable scope of discovery. [Ca Civ Pro § 2017.010; Schnabel v. Super.Ct. (Schnabel), supra, 5 Cal.4th at 711, 21 Cal.Rptr.2d at 203]

California policy favors liberal application of discovery rights. As such, the relevance standard is broadly construed. Doubts as to relevance are usually resolved in favor of permitting discovery. This approach is particularly evident in marital actions, given the codified policy favoring full and truthful disclosures so as to assure a proper division of the community estate and "fair and sufficient" child and spousal support awards. [Ca Fam § 2100]

Examples Of Relevant Evidence: Some examples of relevant matters are:

Corporate Business Records & Tax Returns: "[I]nformation about the value of community assets and the parties' financial status is clearly relevant to [a] spouse's interests in obtaining a fair division of those assets and fair attorney fee and spousal support (and . . . child support) awards. Moreover, at least as to a division of assets and child and spousal support awards, those interests are strongly protected by California law." [Schnabel v. Super.Ct. (Schnabel), supra, 5 Cal.4th at 711, 21 Cal.Rptr.2d at 203 (parentheses in original; emphasis and brackets added)]

Employee Payroll Information: Since full disclosure of all financial information is essential to a fair and equitable division of the community estate and to a proper calculation of child and spousal support (Ca Fam § 2100, 2120(a)), a spouse's payroll information clearly is relevant and discoverable in marriage dissolution proceedings.

Postseparation Acquisitions: Though a spouse's postseparation acquisitions are his or her separate property (Ca Fam § 771(a)), any such acquisitions may include an apportionable community interest (e.g., because exchanged for a CP interest or because a product of the spouse's efforts and skill during marriage). Consequently discovery of postseparation acquisitions is clearly relevant to the issues of community property characterization and valuation; and the trial court abuses its discretion if it imposes a separation date cut-off on the right to conduct discovery of the other spouse's property holdings.

"Indirect" Property Interests To Show Ability To Pay Support: In a child support proceeding, Mother's request for production of "accounting records relating to all real estate rental property in which [alleged Father] had either a direct or indirect financial interest" was within the allowable scope of discovery as "relevant to the subject matter"; i.e., the request was likely to lead to the discovery of admissible evidence on the issue of alleged Father's ability to pay. "[I]nformation with respect to indirect ownership interests is just as relevant as that pertaining to direct ownership interests."

Examples Of Evidence Which May Be Held To Be Irrelevant: Some examples of possibly irrelevant matters are:

Old Financial Records: In a child support action, it may be an abuse of discretion to order production of a party's financial records dating back more than five years. "Antiquated" financial records cannot have any relevant impact in determining a party's present ability to pay child support. [Thomas B. v. Super.Ct. (Sherry H.), supra, 175 Cal.App.3d at 264, 220 Cal.Rptr. at 581-582]

Detailed Lifestyle Evidence: In a child support proceeding, detailed evidence of a parent's "lifestyle" and the manner in which the parent's income is spent generally is irrelevant and protected from discovery . . . unless the ability to make adequate support payments may be affected by the unwise expenditure of income to the supported child's detriment. [White v. Marciano (1987) 190 Cal.App.3d 1026, 1032, 235 Cal.Rptr. 779, 782; Estevez v. Super.Ct. (Salley) (1994) 22 Cal.App.4th 423, 424-425, 431, 27 Cal.Rptr.2d 470, 471, 475]

Detailed Net Worth Of High Earner Where Income & Support Are Not Disputed: Likewise, evidence of an "extraordinarily high earner" parent's net worth is irrelevant and nondiscoverable in a child support case where neither the obligor's income nor the amount of child support are disputed. [Estevez v. Super.Ct. (Salley), supra, 22 Cal.App.4th at 424-425, 431, 27 Cal.Rptr.2d at 471, 475--H admitted $1 million/yr. income and ability to pay "reasonable" support (parties disputed only manner in which child support would be paid)]

Balancing Test Wher 3rd Party Privacy Rights Involved: Despite the strong policy favoring broad disclosure in marital cases, where the sought-after discovery implicates a third party's right to financial privacy, courts are bound to balance the spouse's need for discovery against the third party's constitutionally-protected privacy interests. [Schnabel v. Super.Ct. (Schnabel) (1993) 5 Cal.4th 704, 712, 21 Cal.Rptr.2d 200, 204; Harris v. Super.Ct. (Smets) (1992) 3 Cal.App.4th 661, 665, 4 Cal.Rptr.2d 564, 567]

Priviledged Matters

Information subject to an evidentiary privilege, although "relevant to the subject matter," is protected from discovery unless the privilege is waived. [Ca Civ Pro § 2017.010] However, all of the usual evidentiary privileges apply. Those most likely to arise in marital litigation are overviewed below.

Self Incrimination: Evidence is priviledged and not admissable where discovery seeks information that would reveal criminal activity, contempt, misappropriation or tax evasion. [Ca Evid § 940; U.S. Const., 5th Amend.; Ca Const. Art. I, § 5]

Some Exceptions:

Tax Returns In Support Proceedings: By statute, a parent's tax returns must be produced for examination by the other party in support proceedings, although the returns must be kept confidential; and the parties may also examine each other as to the contents of tax returns (Ca Fam §§ 3552, 3665). The Fifth Amendment provides no exemption from these statutory requirements. [Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1160-1162, 116 Cal.Rptr.2d 273, 286-288]

Disclosure Of Child's Whereabouts: Once a minor has been brought within the jurisdiction of the state's juvenile court system, a parent given custody under juvenile court conditions cannot invoke the self-incrimination privilege to refuse production of the child or disclosure of the child's whereabouts. [Baltimore City Dept. of Social Services v. Bouknight (1990) 493 U.S. 549, 561, 110 S.Ct. 900, 908]

Attorney-Client Priviledge: Discovery of confidential communications between attorney and client in the course of the professional relationship is protected by the attorney-client privilege unless waived (e.g., by disclosure to nonessential third persons) or unless subject to an applicable exception (e.g., communications to perpetrate a "crime or fraud"). [See Ca Evid §§ 950-962]

Joint Client Exception: Clients represented by a common lawyer on a matter of mutual interest may not claim the attorney-client privilege as to communications made during the course of that common representation in the event of litigation between themselves. [Ca Evid § 962] It follows that where an attorney represented both spouses prior to separation, neither spouse (in subsequent family law litigation) may invoke the attorney-client privilege to bar discovery of information learned by the common attorney in the former "joint" representation (i.e., as between the spouses, communications with the common attorney were not "confidential").

Attorney Work Product: The statutory "attorney work product" doctrine is not technically an evidentiary "privilege." Nonetheless, it operates in much the same way as a privilege to protect "attorney work product" information from discovery. [Ca Civ Pro § 2018.010 et seq.] However, unlike evidentiary privileges, work product protection is not necessarily absolute.

However, unlike evidentiary privileges, work product protection is not necessarily absolute

The statutory purpose of the work product doctrine is to preserve the right to prepare one's case for trial "with that degree of privacy" necessary to encourage thorough preparation and investigation of all sides (pro and con); and to prevent counsel (and litigants) from taking unfair advantage of their adversary's industry and efforts (Ca Civ Pro § 2018.020). Beyond this statement of purpose, however, there is no statutory definition of "work product" and, hence, the matter is left to case law.

Briefly, case law classifies protectible "work product" as derivative material (as opposed to "nonderivative" material) . . . meaning material created by or derived from an attorney's (or attorney's agent's) work on behalf of a client that reflects the attorney's evaluation or interpretation of the law or the facts involved. Material which is simply evidentiary in nature (e.g., a percipient witness' verbatim statement) is deemed "nonderivative"--not protected work product. [See Mack v. Super.Ct. (State Pub. Works Bd.) (1968) 259 Cal.App.2d 7, 10-11, 66 Cal.Rptr. 280, 282-283]

Doctor-Patient, Psychotherapist-Patient, Educational Psychologist-Patient Privileges: These privileges protext confidential communications in the course of the professional relationship. [Ca Evid §§ 990-1007, 1010-1027, 1010.5]

A "psychotherapist" within the meaning of the psychotherapist-patient privilege includes licensed marriage and family therapists. [Ca Evid § 1010(e)] It also includes licensed counseling corporations, certain registered mental health nurses, certain registered counselor interns, and specified counselor trainees. [See Ca Evid §§ 1010 & 1014]

The privilege attaches if the patient reasonably believes the person consulted to be one of the professionals statutorily classified as a "psychotherapist." [Ca Evid § 1010]

Child Abuse/Neglect Exception: Even though they learn of possible child abuse in the context of an otherwise privileged relationship, physicians and psychotherapists (as well as several others) have a mandatory duty under the Child Abuse and Neglect Reporting Act (Ca Penal § 11164 et seq.) to report suspected child abuse or neglect to local law enforcement and juvenile authorities.

Clergy-penitent privilege: [Ca Evid §§ 1030-1034]

Sexual assault victim-counselor privilege: [Ca Evid §§ 1035-1036.2]

Domestic violence victim-counselor privilege: [Ca Evid § 1037 et seq.]

Tax return privilege: A privilege to resist compelled disclosure of tax returns is implied from various statutes making it a misdemeanor for taxing authorities and public agencies to divulge the particulars contained in any required tax return or report (Ca Rev & Tax §§ 19542, 14251; Unemp. Ca Ins § 1094)]

However, the tax return privilege is not absolute; indeed, particularly in marital actions, it is largely (but not entirely) swallowed up by legislatively-declared policy exceptions (including statutorily-required disclosures). [Schnabel v. Super.Ct. (Schnabel), supra, 5 Cal.4th at 721-723, 21 Cal.Rptr.2d at 210-211]

Confidentiality of conciliation court proceedings and files: [Ca Fam §§ 1818, 3177]

Mediation Confidentiality: Communications made and writings prepared "for the purpose of, in the course of, or pursuant to" mediation or a mediation consultation are ordinarily confidential and not discoverable. This rule applies to all communications by participants before conclusion of the mediation that are materially related to it, regardless of whether they are made in the mediator's presence. [Ca Evid § 1119]

Marital Privilege Generally Not Applicable: The marital privileges (Ca Evid § 970--privilege not to testify against spouse; Ca Evid § 971--privilege not to be called as witness by adverse party; and Ca Evid § 980--privilege for confidential marital communications) usually are not assertable in family law proceedings because inapplicable in litigation between spouses. [Ca Evid §§ 972(a), 984(a)]

Right Of Privacy

Notwithstanding the strong policy favoring complete and accurate disclosures (Ca Fam § 2100 et seq.) and the concomitant broad scope of discovery in marital proceedings, a spouse's right to compelled disclosure of otherwise relevant nonprivileged information may have to yield to constitutionally-protected privacy rights (Ca Const. Art. 1, § 1). [Britt v. Super.Ct. (1978) 20 Cal.3d 844, 143 Cal.Rptr. 695; see Schnabel v. Super.Ct. (Schnabel) (1993) 5 Cal.4th 704, 711, 21 Cal.Rptr.2d 200, 203]

Information protected by the zone of privacy is not absolutely shielded from discovery. The court may order disclosure to the extent necessary to serve a "compelling public interest." [Britt v. Super.Ct., supra; see Harris v. Super.Ct. (Smets) (1992) 3 Cal.App.4th 661, 664, 4 Cal.Rptr.2d 564, 567]

Between Spouses: As between the spouses, such a "compelling public interest" is rooted in the expressly-codified public policy requiring full and accurate disclosure of assets, liabilities, income and expenses to ensure a proper division of the community estate and "fair and sufficient" child and spousal support awards (Ca Fam §§ 2100, 2120(a)). Clearly, neither spouse in a marital proceeding may rest on a right of privacy objection to resist disclosure of personal financial information.

Third Parties - Balancing Test: On the other hand, the intraspousal fiduciary duties of disclosure do not ipso facto impede the rights of third parties to financial privacy. Even though third party financial information may be highly relevant in a marital action (on the issue of property valuation or either spouse's financial status), the court must protect third party privacy rights to the greatest extent possible. Specifically, "when one spouse in a [marital] proceeding seeks discovery from a third party, the court is required to balance the spouse's need for discovery against the third party's privacy interests." [Schnabel v. Super. Ct. (Schnabel), supra, 5 Cal.4th at 714, 21 Cal.Rptr.2d at 205 (emphasis and brackets added)]

Discovery Methods In Family Law Cases - Overview

Depositions: Depositions may be taken of parties and nonparties. Normally, they are conducted on oral questions under the supervision of an officer authorized to administer an oath, with opportunity for cross-examination; evidentiary objections may be made and privileges may be invoked. The questions and answers are recorded stenographically (in which case, a transcript ordinarily will follow) and/or by audio or video technology; and the transcript or audio/video recording may be admissible at trial under certain circumstances. [Ca Civ Pro § 2025.010 et seq.] Depositions on written questions are also authorized, but are rarely used. [Ca Civ Pro § 2028.010 et seq.]

Interrogatories: Interrogatories are written questions calling for written answers under oath. They may only be propounded between parties to the action. [Ca Civ Pro § 2030.010 et seq.] Civil litigants have the option of using Judicial Council Form Interrogatories (Ca Civ Pro § 2033.710 et seq.)

Requests For Admissions: RFA's may be used by a party to force another party to "admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact." [Ca Civ Pro § 2033.010] Unlike other discovery tools, which are aimed at uncovering factual data that may be used to prove points at trial, RFAs are primarily aimed at putting disputed issues to rest so they will not have to be tried.

Inspection Demands: A Ca Civ Pro § 2031.010 et seq. demand can be used to compel a party (not nonparties or "party-affiliated" persons) to produce for inspection "documents" or tangible things in his or her possession or control. Also, a § 2031 demand can be used to obtain entry on land (for purposes of measuring, surveying, photographing, testing or sampling) in a party's possession or control. [Ca Civ Pro § 2031.010]

Physical And Mental Examinations: On noticed motion for good cause shown, the court may order a physical or mental examination of any party or person in the custody of a party whose physical or mental condition or blood group is in controversy in the action. [Ca Civ Pro § 2032.020 (a)] The examination will be limited to whatever condition is directly related to the subject of the litigation.

Expert Witness Disclosure: Any party may serve on any other party a demand to exchange lists of experts expected to testify at trial, which can also require "the mutual and simultaneous production for inspection and copying of all discoverable reports and writings." The demand obligates all parties mutually and simultaneously to exchange information about their trial experts and, if reports are demanded, to exchange reports as well. [Ca Civ Pro § 2034.210]

Pre-Modification/Support Termination Request For Production Of Income & Expense Declaration: A special discovery statute under the Family Code authorizes either party in cases where child, family or spousal support has been ordered, to serve on the other party a premodification/termination request for the production of a completed current income and expense declaration and income tax returns on the other party. [Ca Fam § 3660 et seq.] If the party on whom the request is served fails to timely respond, or responds incompletely as to wage information, a request for income and benefits information can then be served on that party's employer. [Ca Fam § 3664(b)]

The purpose of § 3660 et seq. is to "permit inexpensive discovery of facts" before commencement of a support modification or termination proceeding. [Ca Fam § 3660] Consequently, there need be no pending support action when the § 3660 et seq. request is served: Any time following a marriage dissolution or legal separation judgment (or a paternity determination) that orders the payment of support, either the obligor or obligee party, or the obligee's assignee (e.g., county in public assistance cases), may serve the request on the other party without leave of court. [Ca Fam § 3664(a)] However, absent a pending motion for modification of support, a request for discovery pursuant to § 3660 et seq. may be undertaken no more than once every 12 months. [Ca Fam § 3663]

Whether or not the requesting party pursued follow-up discovery from the responding party's employer (Ca Fam § 3664(b)), the responding party risks monetary sanctions in an eventual support modification proceeding if he or she submitted an inaccurate or incomplete income and expense declaration pursuant to Ca Fam § 3660 et seq.

Enforcing Discovery Rights

Motions To Compel: "Motions to compel" are provided for separately in each statute governing the respective discovery procedures.Except in a few limited circumstances, motions to compel or limit discovery must include a declaration stating facts showing a "reasonable and good faith attempt at an informal resolution" of the issues presented by the motion. [See Ca Civ Pro §§ 2025.450(b)(2), 2025.480(b) (depositions), § 2030.300(b) (interrogatories--but no "meet and confer" required if motion based on failure to respond at all), § 2033.290(b) (RFAs), § 2031.310(b)(2) (inspection demands--but no "meet and confer" required if motion based on failure to respond at all), §§ 2032.620(a), 2032.650(a) (medical exam report demand)]

The court's order compelling answers may include a costs and fees sanction against the party who improperly resisted discovery. [Ca Civ Pro § 2023.030(a); see also Ca Rules of Court Rule 341(a)--sanctions awardable to party who filed motion to compel even though no opposition to motion, or opposition withdrawn, or requested discovery was provided after motion to compel was filed] Conversely, if the motion to compel is denied, the court may order the moving party to pay the responding party's expenses and fees incurred in resisting the motion. [Ca Civ Pro § 2023.030(a)] In either case, the monetary sanction "shall" be imposed unless the court finds the party subject to the sanction acted with "substantial justification" or that other circumstances make imposition of the sanction "unjust." [Ca Civ Pro § 2023.030(a)]

The following is an overview of motions to compel discovery:

Depositions: When a deponent fails to answer a deposition question, the examiner may either complete the examination on other matters or adjourn the deposition. [Ca Civ Pro § 2025.460(d)] To obtain an answer, however, the examiner must file a motion to compel within specified time limits (no later than 60 days after completion of depo transcript); for this purpose, three alternative procedures are available:

"Cite the witness" procedure: At the deposition; deposition officer then directs deponent to appear in court at time and place specified): See Ca Civ Pro § 2025.480(a)-(c).

Order To Show Cause Procedure: See Ca Civ Pro § 2025.480(a)-(c) and Ca Rules of Court Rule 337.

Notice Of Motion Procedure: See Ca Civ Pro § 2025.480(a)-(c) and Ca Rules of Court Rule 337.

Interrogatories: For failure to respond at all, see Ca Civ Pro § 2030.290 (no time limit on filing and no "meet and confer" prerequisite).

For deficient responses (objections or evasive answers), a motion to compel must ordinarily be filed within 45 days after service of the responses (or supplemental responses) (50 days if service is by mail); failure to meet the 45-day deadline cannot be circumvented by propounding a second set of interrogatories. [Ca Civ Pro § 2030.300]

Requests For Admissions: For failure to respond, see Ca Civ Pro § 2033.280 (motion for order establishing admissions). For deficient responses (objections or evasive answers), see Ca Civ Pro § 2033.290 (motion must ordinarily be filed within 45 days after service of response or supplemental response, 50 days if service by mail).

Inspection Demands: For failure to respond, see Ca Civ Pro § 2031.300 (no time limit on filing motion and no "meet and confer" prerequisite). For objections or inadequate response, a motion to compel must be filed within 45 days after service of the response (or supplemental response) (50 days if response served by mail). [Ca Civ Pro § 2031.310]

Physical And Mental Examinations: For disobeyance of court-order for exam, sanctions are available (see Ca Civ Pro §§ 2032.410, 2032.420).For failure to exchange reports (per § 2032.610 demand), motion to compel delivery (Ca Civ Pro §§ 2032.620, 2032.650); and examiner's testimony can be barred.

Appointment Of Referree: In the event the decision on complicated discovery issues so requires, or if the parties are unduly consuming court time in making motions to compel, for protective orders, or for sanctions, the court is empowered to appoint a "referee" (or "special master") to "determine" the matter and report findings and recommendations thereon to the court. [Ca Civ Pro § 639(a)(5); see also Ca Rules of Court Rule 244.2(c) & (h)]

Protective Orders

The court is empowered to issue protective orders to control burdensome, unreasonable or oppressive discovery requests. [Ca Civ Pro §§ 2017.020(a), 2019.030(a) & (b), 2025.420, 2028.070, 2030.090, 2031.060, 2033.080, 2034.250]. As with motions to compel, a motion for protective order must be accompanied by a declaration showing that the moving party made a "reasonable and good faith attempt" to resolve the issues outside of court. [See Ca Civ Pro §§ 2025.420(a), 2030.090(a), 2031.060(a), 2033.080(a), 2034.240(a)]

The following is an overview of the types of protective orders available:

Narrowing Scope: The court may limit the scope of otherwise relevant discovery on a finding that the "burden, expense, or intrusiveness . . . clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence." [Ca Civ Pro § 2017.020(a)]

Limiting Excessive Discovery: The court may limit the frequency or extent of use of any discovery method where (a) the sought-after discovery is "unreasonably cumulative or duplicative"; (b) the sought-after discovery is obtainable from some other more convenient, less burdensome or less expensive source; or (c) the selected discovery method 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." [Ca Civ Pro § 2019.030(a)]

Limiting Disclosure And Use: Protective orders are particularly appropriate where a discovery request seeks disclosure of information within the zone of protected privacy rights. Here, the fact that the balancing process tips in favor of disclosure does not mean all privacy protection is lost: The party whose privacy is involved is "presumptively" entitled to a protective order limiting disclosure of the information to purposes and persons related to the litigation and barring its use and dissemination for purposes not related to a fair resolution of the action. [Schnabel v. Super.Ct. (Schnabel) (1993) 5 Cal.4th 704, 714, 21 Cal.Rptr.2d 200, 205]

"As Justice Requires": The statutes governing each of the various discovery procedures also authorize protective orders limiting such procedures "as justice requires" . . . to protect any party or person from "unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." [See Ca Civ Pro §§ 2025.420 (depositions), 2030.090 (interrogatories), 2031.060 (inspection demands), 2033.080 (RFAs), 2034.250 (expert witness list exchange)]


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