Civil Litigation Legal Topics Practice of Law

Discovery Outside the Rules

write_83313266Did you know there are many informal discovery techniques you can use to gather information without using the procedures described in California’s Civil Discovery Act (CCP §§2016.010-2036.050)? 

Informal discovery basically entails requesting specified information and documents and then accepting what’s offered. It’s cheaper and may be faster and easier; it might be the perfect fit for your case.

Here are some common examples of informal discovery practices:

  • Interviewing witnesses;
  • Conducting investigations or inspections of property or persons (e.g., background checks, land records, surveillance);
  • Gathering public information through research (e.g., in technical publications, newspapers, or the Internet) or by making legally prescribed requests (e.g., to obtain copies of building permits, public government agency records, or Secretary of State records);
  • Exchanging information with other parties through agreement of counsel.

Interviews and inspections are great fact-gathering tools. They give you a chance to assess evidence outside the presence of the opposing side, determine which witnesses should be deposed, and consider how to frame the case for settlement. But they shouldn’t be rushed; to be fruitful, they often require a substantial commitment of time and resources. For example, face-to-face interviews are generally better than telephone interviews because they promote in-depth conversation.

The ever-increasing technological tools at an attorney’s disposal are great for informal discovery. For example, researching publicly available information has become easier and faster than ever. Background checks, scanned document repositories, social networking sites, and other sources can provide a wealth of information. Government offices and libraries also maintain vast repositories of documents, which can be obtained on-site or through information requests.

When necessary, you can use the California Public Records Act (Govt C §§6250–6270) to get at public documents. No reason need be given for the request for public documents; all you have to do is pay the cost of copying the documents. Govt C §6253(b). The right to disclosure under the Act is broader than the relevancy-to-subject-matter standard of civil discovery (see CCP §2017.010) and may be enforced by writ of mandate. Wilder v Superior Court (1998) 66 CA4th 77, 83.

Information is also available from the federal government through the Freedom of Information Act (FOIA) (5 USC §§552–553). But this is of limited use because the FOIA applies only to federal agencies and doesn’t create a right of access to records held by Congress, the federal courts, or by state or local government agencies.

For a step-by-step approach to pretrial discovery, including a discussion of informal discovery, check out CEB’s new book California Basic Practice Handbook, chap 4. This book is a must-have to anyone starting out in practice or going solo. On conducting discovery in general, CEB has you completely covered with California Civil Discovery Practice.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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