Pre-trial Discovery is the heart and soul of litigation. It enables the parties to evaluate and prepare their case for mediation, motions for summary judgment or summary adjudication and for trial. The propounding of Discovery also leads to discovery disputes and then to discovery motions–all which can threaten to overwhelm the litigation of the case. However, due to the court holidays ordered by the Judicial Council during this pandemic, parties were not able to have their discovery disputes heard by the courts, thus, stalling their cases. Now with the courts reopening, the backlog of motions previously taken off calendar will need to be rescheduled. Meanwhile, new motions are being filed. This unprecedented situation begs the question from attorneys: When will my discovery motion be heard?
One answer is to have a Discovery Referee appointed to hear your discovery disputes. Parties can either stipulate to a Discovery Referee pursuant to C.C.P. §638 or make a motion pursuant to C.C.P. §639(a)(5). (See Civil Litigation and COVID-19: Justice Need Not Be Delayed for the differences between the two code sections.)
The reference to a Discovery Referee can be limited in scope to individual issues (i.e., the motion pending, sitting in all depositions, etc.) or for all discovery purposes in the action. The Judicial Council Forms ADR-109 for the Appointment of a Discovery Referee and ADR-110 for Order appointing the Discovery Referee are easy to use and cost effective. You can find these orders in Word here.
Below are the legal authorities and the limitations of a court appointed discovery Referee pursuant to C.C.P. §639(a)(5):
The court has the power to appoint a Discovery Referee pursuant to C.C.P. §639(a)(5) which reads as follows:
(a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a Referee in the following cases pursuant to the provisions of subdivision (b) of Section 640
(5) When the court in any pending action determines that it is necessary for the court to appoint a Referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.
II. CIRCUMSTANCES JUSTIFYING APPOINTMENT
According to Taggares v. Superior Court (1998) 62 CA4th 94, 98:
“Trial courts utilize discovery references to reduce: the tension between contentious discovery disputants; burgeoning caseloads; and the perception that time constraints require directing judicial priorities elsewhere. Code of Civil Procedure sections 639 and 645.1 provide the courts broad discretion to refer such disputes to a master for recommended disposition and to require the litigants to pay the cost incurred.
A. When Appointment Justified
(1) Multiple issues to be resolved.
(2) Multiple motions to be heard simultaneously.
(3) Present motion is only one in a continuum of many.
(4) The number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.
(5) Referee being appointed to sit in on depositions due to the antagonism between the parties and/or rulings on objections need to be made during the deposition so the deposition can proceed.
(6) Scheduling and case management of the discovery in complex matters. See Taggares at page 105; Civil Procedure Before Trial (TRG 2019) 8:1804.3.
B. Mitigating Factors to be Considered Prior to Appointment
(1) Routine discovery matters should not be sent to a Discovery Referee. Hood v. Superior Court (1999) 72 CA 4th 446, 449.
(2) When the dispute involves complex, unsettled legal issues or of one of first impression. Such matters “lie peculiarly within the purview of the court.” Taggares at page 106.
(3) When parties in the litigation not involved in the discovery dispute will be affected by the ruling. Taggares at 106.
III. REQUIREMENTS OF A DISCOVERY REFEREE
A. Residency in the county is no longer required. [C.C.P. §640; CRC, Rule 3.923]
B. The Referee’s certification that he or she is aware of and will comply with applicable provisions of Canon 6 of the Code of Judicial Ethics and with the California Rules of Court. The certification must be filed with the court. [CRC, Rule 3.921; CRC, Rule 3.924(a)(1) and (2)]
C. In addition to any other disclosure required by law, no later than five days prior to the deadline for parties to file a motion for disqualification of the Referee under C.C.P. § 170.6 or, if the Referee is not aware of his or her appointment or of a matter subject to disclosure at that time, as soon as practicable thereafter, a Referee must disclose to the parties:
(1) Any matter subject to disclosure under subdivisions (D)(2)(f) and (D)(2)(g) of Canon 6 of the Code of Judicial Ethics; and
(2) Any significant personal or professional relationship the Referee has or has had with a party, attorney, or law firm in the instant case, including the number and nature of any other proceedings in the past 24 months in which the Referee has been privately compensated by a party, attorney, law firm, or insurance company in the instant case for any services, including, but not limited to, service as an attorney, expert witness, or consultant or as a judge, Referee, arbitrator, mediator, settlement facilitator, or other alternative dispute resolution neutral. [CRC, Rule 3.924]
IV. DESIGNATION OF A DISCOVERY REFEREE
Code of Civil Procedure §640 lists the procedure that the court is to use in selecting a Discovery Referee if the parties do not stipulate:
A. The court shall appoint as Referee or Referees the person or persons, not exceeding three, agreed upon by the parties.
B. If the parties do not agree on the selection of the Referee or Referees, each party shall submit to the court up to three nominees for appointment as Referee and the court shall appoint one or more Referees, not exceeding three, from among the nominees against whom there is no legal objection. If no nominations are received from any of the parties, the court shall appoint one or more Referees, not exceeding three, against whom there is no legal objection, or the court may appoint a court commissioner of the county where the cause is pending as a Referee.
V. ORDER APPOINTING A DISCOVERY REFEREE
The order appointing a discovery Referee must be in writing [C.C.P. §639(d)] and shall include the following:
A. The order must specify that the Referee be appointed pursuant to C.C.P. §639(a)(5). [C.C.P. §639(a)(5)]
B. The name, business address, and telephone number of the Referee. [C.C.P. §639(d)(4); CRC, Rule 3.922(b)]
C. If the Referee is a member of the State Bar, the order must include the Referee’s State Bar number. [CRC, Rule 3.922(b)]
D. A statement as to the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case. [C.C.P. §639(d)(2); CRC, Rule 3.922(c)(2)]
E. The subject matter or matters included in the reference. [C.C.P. §639(d)(3); CRC, Rule 3.922(d)(1)]
F. Whether the Referee is being appointed for all discovery purposes or only for limited purposes. [CRC, Rule 3.922(d)(2)]
G. The Referee is authorized to hear and determine discovery motions and disputes relevant to discovery and is further authorized to set the date, time and place for all hearings determined by the Referee to be necessary; direct the issuance of subpoenas; preside over hearings, take evidence; and rule on objections, motions, and other requests made during the course of the hearing. [CRC, Rule 3.922(e)(1)]
H. The maximum hourly rate the Referee may charge and, at the request of any party, the maximum number of hours for which the Referee may charge. [CRC, Rule 3.922(f)(1)]
I. Include a finding that if the Referee will be appointed at a cost to the parties, the order must:
(1) Specify the maximum hourly rate the Referee may charge and, if any party so requests, the maximum number of hours for which the referee may charge;
(2) Include a finding that either:
(A) No party has established an economic inability to pay a pro rata share of the referee’s fee; or
(B) One or more parties has established an economic inability to pay a pro rata share of the referee’s fees and another party has agreed voluntarily to pay that additional share of the referee’s fees.
(C) When the issue of economic hardship is raised before the referee begins performing services, the court must determine a fair and reasonable apportionment of reference costs. [CRC, Rule 3.922(f)(2) and (3)]
VI. DETERMINING APPORTIONMENT OF REFEREE FEES
According to C.C.P. §645.1 titled “Payment of Referees’ Fees”:
When a referee is appointed pursuant to Section 639, at any time after a determination of ability to pay is made as specified in paragraph (6) of subdivision (d) of Section 639, the court may order the parties to pay the fees of referees who are not employees or officers of the court at the time of appointment, as fixed pursuant to Section 1023 , in any manner determined by the court to be fair and reasonable, including an apportionment of the fees among the parties. For purposes of this section, the term “parties” does not include parties’ counsel.
A. Any party who is proceeding in forma pauperis is considered unable to pay a prorate share of the fees. [C.C.P. §639(d)(6)(A)]
B. When establishing economic hardship, a party’s sworn declaration is acceptable unless there is some reason to disbelieve it. California Civil Discovery Practice (CEB 2019) citing Hood v. Superior Court (1999) 72 CA4th, 446, 449; McDonald v. Superior Court (1994) 22 CA4th 364, 370. A court may not require a party to produce tax returns to substantiate his or her indigence. Hood at 449-350.
C. If a party is indigent, the court cannot order counsel to pay the referee fees. Taggares at 94.
D. Requiring one party to pay the fee, may be an appearance of unfairness if the rulings favor the party paying, a situation that is not “fair and reasonable” under C.C.P. §645.1. Taggares at 94.
E. Other possible options are:
(1) If the parties agree, permitting them to select from a panel of attorneys who have agreed to serve pro bono in matters of this nature, or from a court-approved list of mediators and/or arbitrators willing to serve without charge. Taggares at 106;
(2) Require the parties to select from a court-approved list of retired judges willing to volunteer services in indigent cases. Taggares at 106;
(3) Refer to the presiding judge for assignment to an available department or assigned judge. Taggares at 106;
(4) Apportion the fees as deemed appropriate. Order the financially able party to pay 100% of the fees. If the financially able party is the prevailing party then they would be able to recover 100% of the fees. If the financially able party the portion paid for the indigent party shall be used as a set off.
F. If one side is unable to contribute to the cost of a discovery referee, and the court cannot make a cost-free option available, then the court may not make the reference. Instead, the trial court should retain and resolve these matters, when necessary utilizing available monetary sanctions and other judicial tools available to control discovery disobedience. Taggares at 106.
G. The may consider the referee’s recommendations regarding allocation of fees modify the apportionment. [CRC, Rule 3.922(f)(3)]
VII. POWERS AND LIMITATIONS OF THE DISCOVERY REFEREE
The powers of a Discovery Referee are limited to those granted by statutory authority and cannot be extended by a court order. The following outlines the limitations of a Discovery Referee:
A. Discovery Matters California Rules of Court, Rule 3.922 grants the discovery Referee authority to set the date, time, and place for all hearings determined by the Referee to be necessary, to direct the issuance of subpoenas, to preside over hearings, to take evidence and to rule on objections, motions, and other requests made during the course of the hearing.
B. Case Management Conferences In Lu v. Superior Court (1997) 55 CA4th 1264, 1269 the Court of Appeal stated that the Referee doesn’t just assist the trial judge in resolving discovery disputes but the Referee can “work with the attorneys in developing a discovery plan, scheduling discovery in the most efficient, rational and least oppressive manner.”
C. Discovery Matters the Referee has No Authority Over
(1) Contempt proceedings. See Marcus v. Workmen’s Comp. Appeals Board (1973) 35 CA3d 598
(2) Sealing of records must be decided by the court. [CRC, Rule 2.551]
D. Law and Motion Matters other than Discovery The superior court has no power to assign matters to a Referee for decision without explicit statutory authorization. Aetna Life Insurance v. Superior Court (1986) 182 CA3d 431. “Hearing, considering and deciding dispositive motions is not one of the special references authorized by C.C.P. Section 639 which the court may make without consent.” Jovine v. FHP, Inc. (1998) 64 CA4th 1506, 1523. An assignment of a Referee for a purpose other than one listed in Section 639 is an excess of the court’s jurisdiction and, therefore, voidable. Jovine at 1531-1532.
E. Mediation California Rules of Court, Rule 3.920 states, “A court must not use the reference procedure under Code of Civil Procedure Section 639 to appoint a person to conduct a mediation.” The Fourth District Court of Appeals in Jeld-Wen v. Superior Court (2007) 146 Cal. App. 4th 536 ruled that the trial court lacked authority to order parties in a complex civil action to attend and pay for private mediation because such an order conflicted with the statutory scheme pertaining to mediation as set forth in the Civil Action Mediation Program per C.C.P. §1775 et seq., which emphasized the voluntary nature of mediation.
F. Communications with the Court According to the Code of Judicial Ethics, the court cannot communicate with persons who are appointed by the court (i.e., Discovery Referee) to serve in some capacity in a proceeding unless the parties stipulate to the communication. Canon 3B(7)(a) and (c)
G. Communications with Mediators Discovery Referees are bound by the Judicial Cannons as specified in Canon 6. As with Judges, it is improper for a Discovery Referee to communicate with the mediator in the case. The following Judicial Canons apply to communications with mediators for the Discovery Referee:
(1) “ A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the full right to be heard according to law. Unless otherwise authorized by law, a judge shall not independently investigate facts in a proceeding and shall consider only the evidence presented or facts that may be properly judicially noticed. This prohibition extends to information available in all media, including electronic.” Canon 3(B)(7)
(2) “A Judge shall not initiate, permit, or consider ex parte communications, that is, any communications to or from the judge outside the presence of the parties concerning a pending or impending proceeding, and shall make reasonable efforts to avoid such communications.” Canon 3(B)(7)
(3) “If a Judge receives an unauthorized ex parte communication, the Judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.” Canon 3B(7)(d)(3)
(4) “A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law* to do so or when authorized to do so by stipulation of the parties.” Canon 3B(7)(c)
Furthermore, mediators are not to communicate with the Discovery Referee. Evidence Code § 1121 titled “Reports” states:
Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118.
VIII. DISCOVERY REFEREE’S REPORT
A. Recommendations Due Code of Civil Procedure §643(a) and (c) require the Referee to file with the court and serve on the parties a written report within 20 days after completion of the hearing. The report shall include a recommendation on the following:
(1) The merits of the any disputed issue;
(2) A statement of the total hours spent and the total fees charged by the Referee; and
(3). Allocation of payment of the Referee fees
Remember that the Referee’s report is advisory and not determinative. [C.C.P. §644]
B. Objection to Recommendation Any party may file an objection to the Referee’s report, or within another time as the court may direct. The objection shall be served on the Referee and all other parties. Responses to the objections shall be filed with the court and served on the Referee within 10 days after the objection is served. [C.C.P. §643(c)]
C . Review by Court Code of Civil Procedure §643(c) also states that
“[t]he court shall review any objections to the report and any responses submitted to those objections and shall thereafter enter appropriate orders. Nothing in this section is intended to deprive the court of its power to change the terms of the Referee’s recommendations, and this overriding power may be exercised at any time, either on the motion of any party for good cause shown or on the court’s own motion.”
“The trial court must independently consider the Referee’s findings before action upon the recommendations.” Rockwell International Corp. v. Superior Court (1994) 26 CA4th 1255, 1269-1270. The review may be done “in whatever manner the trial court deems appropriate.” Marathon National Bank v. Superior Court (1993) 19 CA4th 1256, 1258 “Even though the trial court must independently consider the Referee’s findings before acting, the Referee’s recommendations are entitled to great weight.” Estate of Beard (1999) 71 Cal. App. 4th 753, 777. However, the court is not required to hold a hearing regarding the objections. See Lewis v. Superior Court (1999) 19 C4th 1232, 1247-1250.
I don’t make the recommendation to have a Discovery Referee appointed lightly as it can cost the parties thousands if not tens of thousands of dollars. However, if you do not get the discovery you are entitled that would enable you to evaluate and prepare your case for mediation, a motion for summary judgment or for trial, you are doing your client a disservice. Also, resolving discovery disputes tends to resolve the animosity in the case. With the animosity gone, the parties can have productive settlement negotiations.