The California Code of Civil Procedure 2031 (effective June 29, 2009) concerns a party obtaining discovery in a court action. The code specifies that any party is able to obtain discovery within the guidelines outlined in Chapters 2 and 3, however, they must abide by the restrictions contained within Chapter 5.
A party is allowed to inspect, copy, test, or sample documents, tangible objects, land or any other property, including electronically stored information that is in the control, in the custody of, or possessed by any other party in the court action. The code states that a party may demand that any other party in the cause produce the discovery, and allow the demanding party to inspect and copy a document that is held by the party on whom the demand is made. The demanding party may also demand that a party allow them or their legal representative to inspect, photograph, test or sample any tangible object that the demanded-upon party has in their possession. Additionally, the demanding party may demand the other party allow them to enter on any land or property that is being possessed, controlled or held by the party on whom the demand is made, so they can test, measure, survey, photograph or sample the land or property. Finally, a party may demand that any other party in the court action produce and allow the demanding party to inspect, test, copy, or sample electronically stored information in the custody of, possessed by, or held by the party on whom is demand is made.
This code also details how a defendant may demand that he or she be allowed to inspect, copy, test or sample discovery at any time, without needing the court’s approval. Additionally, a plaintiff may make the same demand without approval from the court, provided their demand is made 10 days after the service of or the appearance by the party to whom the demand is made, whichever event occurs first.
A plaintiff may also make a demand for inspecting, copying, testing or sampling discovery without the court’s approval provided that it their demand is made 5 days after the summons is served or the demanded-upon party’s appearance. The court may also grant approval to a plaintiff to make said demands at an earlier time, if the court deems this act necessary.
A party demanding to inspect, copy, test or sample discovery shall number their demands consecutively. The party requesting the same action on electronically stored information is allowed to specify the format or formats in which the requested discovery is to be produced. The code dictates how the demand shall proceed, with the identity of the demanding party, the set number and the identity of the responding party included in the first paragraph underneath the case title. If there is a set of demands, each demand shall be designated with either a letter or number. These identifications shall have several requirements. They shall designate the documents, tangible objects, or other property, or electronic information that is to be inspected, sampled, copied, or tested with specific descriptions of each item or category of item.
The demand also specifies a reasonable amount of time for the inspection, copying, testing, or sampling process that is at least 30 days after the demand is served, unless the court has granted permission for an earlier date. If the action concerns a lawful detainer or other proceeding valid under Chapter 4 of Title 3 of Part 3, the demand shall specify the reasonable amount of time for the inspection, copying, sampling or testing process that is at least 5 days after the demand is served, unless the court has good cause to require an earlier date. The place for the inspection, copying, testing or sampling, and the activities related within these activities, shall be specified, as well as the manner in which those processes will be handled and whether the actions will alter or destroy the item involved.
A party demanding inspection, copying, testing or sampling must serve a copy of the demand to the party who is being demanded-upon, and all other relevant parties in the action. In addition to a demand, a party can submit a supplemental demand to inspect, copy, test, or sample any documents, electronically stored information, tangible objects, land or other property acquired later. They may also submit a supplemental demand for performing the process twice before a trial date is initially set and once after the trial date is set. The court may also grant approval, upon motion, to a party to submit a number of supplemental demands for inspection, copying, testing or sampling.
Additionally, the code outlines how the demands for inspection, copying, testing or sampling shall be handled, dictating that the party to whom demand is made may move for a protective order, and it shall be accompanied by a meet and confer declaration. The court, if good cause is shown, may make any order that is in the interests of justice and protects any party or person from annoyance, embarrassment, oppression or undue burden and expense incurred if the inspection, sampling, copying, or testing process occurs.
The order may include one or more of the following: That all or some items in the demand not be produced or made available to the requesting party; that the time to respond to demands or to a particular item in the set of demands be extended; that a new place for the discovery to be produced be a location other than that specified in the demand; that the inspection, copying, testing or sampling be made only according to certain terms and conditions agreed upon; that any trade secrets or otherwise confidential information not be disclosed or only disclosed to certain persons in a specific way; that the items are delivered sealed and not opened until the court orders it so; that the party who requests a protective order based on undue burden or expense to retrieve electronically-stored information shall demonstrate the reason for their claims.
If the discovery requested is for electronically stored information and the party who seeks a protective order based on undue burden or expense establishes that the information is from a source that is not readily accessible or that incurs an undue expense, the court may order discovery regardless, if the demanding party shows good cause for its inclusion. If the court finds the request was made with good cause, the discovery of electronically stored information may have conditions set for it by the court.
The court will limit the extent of discovery allowed from electronically stored information, even if deemed readily accessible, if the court determines any of the following: the information can be retrieved from a less expensive, more convenient, or there exists a source that is less burdensome; that the discovery requested would be duplicate information; that the demanding party has had enough opportunity to access the discovery previously; that the burden likely incurred in producing the requested discovery is greater than the likely benefit of the discovery. If a motion for protective order is denied by the court in whole or in part, the court may order the party to whom demand was made permit the requesting party to provide the discovery.
The court shall impose monetary sanctions against any party, individual or attorney who moves against a protective order, unless the order is deemed justified or the sanction is unjust due to other circumstances. However, the court shall not impose sanctions on any party, individual or attorney if they fail to provide electronically stored information that has been lost, altered or overwritten or if the data was lost in the routine good faith operation of the system.