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Several times per month I receive questions from attorneys regarding a discovery dilemma.  Mostly the questions offer a novel twist on basic discovery.  However, this latest query was quirkier than most and raised some interesting issues and misconceptions, so I thought I would share it with you.   It went like this:

I served written discovery on a cross-defendant in a case, we are one of the defendants.  Cross-defendant (represented by, the plaintiff’s counsel) has appeared in this case by way of demurrer.  Cross-Defendant has refused to answer for the following reasons, (1) my clients are not parties to the cross-complaint so therefore we cannot propound discovery; (2) the court sustained the demurrer with leave to amend and the amended cross-complaint will be filed shortly by the cross-complainant; and (3) the cross-defendant lives in Europe and I need to go through the Hague Convention.  I don’t think any of these are legitimate reasons for not responding to discovery.

I don’t know whether the attorney for the cross-defendant was playing games or   under a misconception about the law, but I do know that the lawyer didn’t do his homework when he asserted garbage objections.  My response to this inquiry was as follows:

(1)    Discovery may be sent to “any other party” to the action.  See:

C.C.P. §2025.010                 Depositions

C.C.P. §2030.010(a)           Interrogatories

C.C.P. §2031.010(b)            Demand for Inspection

C.C.P. §2025.010                Request for Admission

(2)    Discovery “Holds” are only for the onset of the case.  See Weil and Brown Civil Procedure Before Trial ¶8:39.1 and also see my “California Civil Discovery–Charts for the Everyday Litigator” which shows when discovery commences for each party regarding each discovery device.

The right to discovery does NOT depend on the status of the pleadings.  In Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 CA3d 1429, 1436 sanctions were upheld for refusal to make discovery because the demurrer was pending.  In Budget Finance Plan v. Superior Court (1973) 34 CA3d 794, 797, the Court of Appeal found that discovery may continue after a demurrer has been sustained with leave to amend, although an amended complaint had not yet been filed.  See Weil and Brown, Civil Procedure Before Trial (TRG 2015)  ¶8:58 – 8:59.1.

(3)    The issue is not that the party is living in a foreign country, but whether he is a citizen of another country.  According to Weil and Brown Civil Procedure Before Trial (TRG 2015) at ¶8:46-53 the controlling case is Societe Nationale Industrielle Aerospatiale v. United States District Court (1987) 482 US 522, 546. That case says that when seeking discovery from foreign litigants or witnesses the American trial court must exercise “special vigilance” to protect them from discovery abuse.  “Their objections to discovery should receive ‘most careful consideration’ to demonstrate ‘due respect’ for any special problem confronted by the foreign litigant on account of its nationality or the location of its operation and for any sovereign interest expressed by a foreign state.”   Societe, supra at 546

Whether the discovery is abusive is determined by the trial court based on the particular facts of the case as well as the foreign interests involved.  See Societe, supra at 546

Weil and Brown also point out that the “Hague Convention is merely a permissive supplement—not a replacement—for other means of discovery.  It is up to American courts to decide whether parties should be required to use these procedures in lieu of discovery.”  See Weil and Brown Civil Procedure Before Trial (TRG 2015)¶8:50 citing Societe, supra at 536 and American Home Assurance Company v. Societe Commerciale ToutElectric (2002) 104 CA4th 406, 425

For a more extensive review regarding the discovery of foreign nationals see California Civil Discovery Practice (CEB 4th Edition, 2015) Chapter 13 titled “Discovery in other Nations” and Julie Brook’s blog, “6 Steps to Take Before Traveling into the World of Foreign Discovery”.