Have you ever had a judge give you a ruling in discovery that was so absolutely wrong that you knew you had to fight it? Yet, everyone you talk to tells you that it is almost impossible to get a writ in discovery so you just live with the ruling. Appellate Lawyer Jerry Clausen from San Francisco wrote a great article in Plaintiff Magazine titled “Obtaining Review of Discovery Rulings.” Here it is for your enjoyment.
Obtaining appellate review of a discovery ruling can be a daunting task with an unlikely prospect for success. Rarely are discovery orders themselves directly appealable. Furthermore by their nature they are particularly poor candidates for effective review on an appeal from an adverse judgment entered months or even years later. As a result, commonly the only chance for correcting an erroneous discovery order is by writ of mandamus or prohibition. Yet the judiciary, sensitive to the pretrial process that can result from injudicious use of prerogative writs to review discovery disputes, has long held to a policy of restricting the use of these writs to review discovery rulings.
Nevertheless, adverse discovery rulings do of course occur, and sometimes they are important enough–either to the litigation itself or to the personal, privacy, or commercial interests of the client–to justify an effort to obtain appellate review. In that event the litigant needs to know what options may be available and how to maximize his or her chances of success.
Inadequacy of Review of Discovery Rulings on Appeal from Final Judgment
In California, the right to appeal is wholly statutory. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 2, pp. 61-62.) In a few situations, a discovery ruling may meet the requirements of a statute providing a right to direct appeal. Typically these involve the imposition of sanctions for discovery abuse. For example, where an action is dismissed in its entirety (see Code Civ. Proc., § 2023.030, subd. (d)(3)) or a default judgment is entered (see id., subd.(d)(4)), it will of course likely be appealable as a final judgment. (Id., § 904.1 (pdf), subd. (a)(1).) Also, an order imposing monentary sanctions over $5000 against either a party or the attorney for a party is directly appealable. (Id., subd. (a)(12); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390, 401 (pdf))
Most discovery orders, however, are not directly appealable because no statute makes them so. Like other interlocutory rulings they may be reviewed as a matter of right upon appeal from the final judgment. But for a number of reasons delaying review of a discovery ruling until an appeal from the final judgment is especially ineffective. (See Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185, fn. 4 (pdf); Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169-170 (pdf).) For one thing, in many discovery situations delayed review provides a wholly inadequate remedy. For example, if discovery is erroneously granted, it may be pointless to ask an appellate court to undo a disclosure that was compelled months or even years earlier. If, on the other hand, discovery is erroneously denied, it may be impossible to show that undisclosed information, had it been it been produced and admitted at trial, would have made a judgment in favor of the aggrieved party more likely—and hence impossible to show that the error was prejudicial.
For another thing, delayed review can result in irreparable injury. Where, for instance, an improper order grants discovery over a privilege objection, it will probably be impossible to restore the aggrieved party to the status quo ante once that information has been divulged.
The rationale for delaying review of discovery rulings until appeal from the final judgment rather than permitting direct appeal of them is twofold. First, it prevents the disruption and delay that would be caused by piecemeal review of trial court rulings. Second, it reduces the burden on the appellate courts, since many (if not most) discovery rulings will be mooted because the case settles, because the aggrieved party prevails on the merits, or because the discovery ruling is later “corrected” in the trial court (such as where matter erroneously ordered disgorged during discovery is subsequently excluded from evidence at trial).
Special Criteria for Writ Review of Discovery Orders
The inadequacy of review of discovery orders on direct appeal from a final judgment may make such orders seem like apt candidates for review by extraordinary writ. Irreparable injury and an inadequate remedy at law are, after all, two of the primary requisites for writ review. (Code Civ. Proc., §§ 1086 (pdf), 1105 (pdf); Roberts v. Superior Court (1973) 9 Cal.3d 330, 335-336 (pdf).) Yet despite the acknowledged inadequacies of review of upon appeal from a final judgment, the California Supreme Court has made it clear that the prerogative writs should be used sparingly as a means of reviewing such orders. (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185, fn. 4 (pdf); see also Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169-170 (pdf).)
In fact, the Supreme Court has specified three requirements for granting writ review of discovery orders: “[T]he prerogative writs should only be used in discovery matters to review questions of first impression that are of general importance to the trial courts and to the profession, and where general guidelines can be laid down for future cases.” (Oceanside, supra, 58 Cal.2d at pp. 185-186, fn. 4.)
To comprehend the significance of the restrictions imposed by Oceanside on writ review in discovery cases, consider the factors generally to be considered in determining the propriety of a writ relief in ordinary, nondiscovery cases:
• the issue tendered in the writ petition is of widespread interest or presents a significant and novel constitutional issue;
• the trial court’s order deprived petitioner of an opportunity to present a substantial portion of his cause of action;
• conflicting trial court interpretations of the law require a resolution of the conflict;
• the trial court’s order is both clearly erroneous as a matter of law and substantially prejudices petitioner’s case;
• the party seeking the writ lacks an adequate means, such as direct appeal, by which to attain relief; and
• the petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal.”
One difference between these two formulations is that, while not all of the factors listed in Omaha Indemnity need be present for a writ to issue (id., 209 Cal.App.3d at p. 1274 [“extent to which these criteria apply depends on facts and circumstances of case”]), the same is not true under Oceanside: for a writ to issue under Oceanside, the case must raise a question that is (a) one of first impression and (b) one of general importance to the bench and bar and (c) one as to which general guidelines can be laid down for future cases.
But perhaps the most notable difference between the two standards is the impact of a clearly erroneous trial court ruling: while, in the ordinary case, an erroneous ruling is a factor militating in favor of writ review under Omaha Indemnity, it does not necessarily support writ review of discovery rulings under Oceanside. The Supreme Court expressly acknowledged as much when it cautioned that the fact that “prerogative writs have been frequently used to review interim orders in discovery cases . . . does not mean that these discretionary writs will or should issue as of course in all cases where this court may be of the opinion that the interim order of the trial court was erroneous.” (Oceanside, supra, 58 Cal.2d at p. 185, fn. 4.)
In fact, a clearly erroneous discovery order may actually work against a litigant seeking review by writ because it is squarely at odds with Oceanside’s requirement that the challenged ruling present a question of first impression. (See id., at pp. 185-186, fn. 4.)
Consider alternatives to a writ petition.
About nine out of every ten writ petitions are summarily denied, and although separate statistics are not available, the rate of summary denial of discovery writs is undoubtedly even higher. It therefore behooves a litigant to take every available measure to decrease the odds of a summary denial.
One sure way to avoid summary denial of a writ petition is not to file one in the first place. Because a discovery writ’s chances are so slight to begin with, counsel should first consider whether a more favorable alternative exists for overcoming or at least mitigating an adverse discovery ruling.
In rare cases, one alternative to a writ petition may be a direct appeal. As previously noted, most discovery rulings are not directly appealable, and delayed review after an appeal from a final judgment is often inadequate. But it may be possible to accelerate review by disobeying the discovery order and appealing from an adverse outcome imposed as a sanction for disobedience, such as a dismissal, an adverse judgment, or a monetary fine. (See above.) Such a tactic is obviously extreme and will be justified only in rare circumstances. Still, it may warranted where, for example, the ultimate effect of the discovery will be to effectively gut the party’s case entirely or where it may be the lesser of two evils for a client who has been ordered to disclose valuable or sensitive information that is more important to him or her than outcome of the lawsuit. It does have the undeniable advantage of guaranteeing immediate and meaningful appellate review.
In the more common situation, where direct appeal is not an option, most trial lawyers will do the obvious—try to skin the cat in a different way. For example, in some cases a litigant denied discovery from his or her opponent may be able to obtain the information by some other means—such as by consulting experts or other lawyers who have been involved in similar cases, by seeking the it, either formally or informally, from the another defendant or a third party, by making a request under either the California Public Records Act (Gov. Code, §§ 6250 et seq.) (see Fairley v. Superior Court (1998) 66 Cal.App.4th 1414, 1422 (pdf); Wilder v. Superior Court (1998) 66 Cal.App.4th 77, 82) or the federal Freedom of Information Act (5 U.S.C. § 552), or by searching the Internet.
Conversely, a litigant compelled to disclose sensitive information may be able to mitigate the negative collateral effects of the disclosure by obtaining a protective order. (Code Civ. Proc., §§ 2017.020, subd. (c), C.C.P. Section 2019.030, subd. (b)(2) (pdf); see Pacific Tel. & Tel. Co. v. Superior Court, supra, 2 Cal.3d 161, 170-171, fn. 11.)
Maximizing the Chances of Writ Review
Choosing your battles. Cases decided subsequent to Oceanside suggest that certain categories of discovery rulings may be more likely to meet the requirements for writ review, while others may be less likely. A discovery writ is more likely to be granted in the following types of cases:
• Where the order involves a denial of discovery. (See Pacific Tel. & Tel. Co. v. Superior Court, supra, 2 Cal.3d at pp. 170-171, fn. 11.)
• Where an order grants discovery over an objection based on a privilege. (See Pacific Tel. & Tel. Co., supra, 2 Cal.3d at pp. 170-171, fn. 11.) Indeed, the Supreme Court has stated that the need for the availability of the prerogative writs in such cases is “obvious” because the “person seeking to exercise the privilege must either succumb to the court’s order and disclose the privileged information, or subject himself to a charge of contempt….” (Roberts v. Superior Court (1983) 9 Cal.3d 330, 336.)
• Where the issue concerns the right to conduct discovery. For example, a writ issued to determine whether a party has a right to conduct discovery following remand after reversal on appeal (see Code Civ. Proc., §2024, subd. (a) (pdf)). (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 249 (pdf); see Beverly Hospital v. Superior Court (1994) 19 Cal.App.4th 1289 (pdf), [right to conduct expert discovery on remand].)
• Where the effect of the ruling is to preclude all or a substantial part of a litigant’s case. This can occur when a court orders that matter has been deemed admitted pursuant to a request for admission. (See, e.g., Courtesy Claims Service, Inc. v. Superior Court (1990) 219 Cal.App.3d 52, 54 (pdf), disapproved on another point in Wilcox v. Birtwhistle (1999) 21 C4th 973, 983, fn.12; Hansen v. Superior Court (1983) 149 Cal.App.3d 823,8278.) (pdf).) In fact, in Hansen the court went so far as to suggest that this situation should not be subject to the restrictions normally governing discovery writs: “Because requests for admissions are more closely akin to summary adjudication procedures than to orthodox discovery, being designed not so much to ‘discover’ the facts and to expedite trial preparation as to render it unnecessary to try an otherwise triable issue of fact or law, we do not apply the rule that a reviewing court should rarely interfere with pretrial discovery orders, particularly where such orders operate to grant discovery. Instead, we follow general principles….” (Ibid., cits. omitted.)
In contrast to the foregoing cases, a discovery writ will probably not be granted in the following situations:
• Where the objection to an order granting discovery is based solely on irrelevancy. (Pacific Tel. & Tel. Co. v. Superior Court, supra 2 Cal.3d 170-171, fn. 11 [such order “generally will not support the issuance of an extraordinary writ”].)
• Where an order merely concerns a challenge to the timing of disclosure of a defendant’s financial records in a punitive damages case (and not the disclosure of the records themselves). (City of Alhambra v. Superior Court (1980) 110 Cal.App.3d 513, 520-521 (pdf).)
• Where an order compels discovery of matter even though it may be available from public records or another source equally accessible to both parties. (City of Alhambra, supra [prior suits against a defendant based on similar incidents over an objection that the information was a matter of public record and thus equally accessible to both parties].)
• Where an order compels a plaintiff in a personal injury action to submit to a medical examination without the presence of her personal physician. (Long v. Hauser (1975) 52 Cal.App. 3d 490, 492 (pdf).)
Tailoring the issues. Once the decision is made to seek a writ, the emphasis should be on framing the issues in the petition in a manner calculated to bring them within the Oceanside requirements. The issues should be stated broadly, so as to demonstrate their general importance to the bench and bar. And they should be framed so as to emphasize their novelty or otherwise demonstrate a question of first impression.
Law review articles, decisions, from other states, or even general information obtained from the Internet or elsewhere may be relevant to help establish that the issue presented is one of “general importance to the trial courts and to the profession” for which “general guidelines can be laid down for future cases.” (Oceanside, supra, 58 Cal.2d at p. 185, fn. 4.)
In fact, in an appropriate case it may even be possible to submit with the writ petition additional evidence bearing on the Oceanside factors. Because writ review is an original proceeding, an appellate court has discretion to consider additional evidence not presented in the court below. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2012) ¶ 15:179.1 (rev. #1, 2011); Bruce v. Gregory (1967) 65 Cal.2d 666, 667-671 (pdf); McCarthy v. Superior Court (1987) 191 Cal.App.3d 1023, 1030, fn.3 (pdf).) Although it usually will decline to do so where the additional evidence bears on the very issue decided by the trial court and was not before that court at the time of its decision (see People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164 (pdf), and cases cited therein), the appellate court may be more receptive to new evidence if it bears solely on the factors to be determined in deciding the propriety of granting writ review.
Fortunately, although adverse discovery rulings do occur, rarely do they threaten to significantly imperil the outcome of a case. In those rare instances, where they do, writ review may be the only means of relief. By knowing the considerations relevant to such obtaining such relief a litigant can at least maximize the chances that it will in fact be granted.