In California, civil discovery is “self-executing,” i.e., a party demanding discovery doesn’t need prior court approval, and the responding party may object instead of providing the requested information. An objection often ends the matter, but sometimes it doesn’t, and the party resisting discovery has to consider moving for a protective order.
When an objection isn’t enough to satisfy opposing counsel and moving for a protective order is on the table, here are 4 questions to ask yourself:
- Is there a risk in not moving? In some situations, it may be too risky to rely solely on an objection, making it advisable to seek a protective order. For example, if a party served with notice of deposition will be unavailable for the examination and it’s uncertain whether the reasons for the unavailability will establish a legally sufficient and valid excuse, seek a protective order before the deposition. If you don’t and a party fails to appear for a deposition, the examiner may not only move to compel the deponent’s appearance but also may seek sanctions.
- Is it too expensive? Compare the expense of making the motion for a protective order to the significance of the information sought. Is the expense really warranted to protect that particular information?
- Do I need the information sought? Consider whether the same information will be necessary to prove your own case. In Steiny & Co. v California Elec. Supply Co. (2000) 79 CA4th 285, 292, the court held that, when plaintiff asserts a valid trade secret privilege and prevents disclosure of crucial evidence, plaintiff may be prevented from presenting its damage evidence at trial.
- Is the risk of sanctions low? Be confident of the merits of your motion before filing because the court must impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order unless there was substantial justification for the unsuccessful action or other circumstances make the sanction unjust. See, e.g., CCP §2030.090(d).
Here’s the bottom line: When the requested discovery isn’t privileged or won’t harm your client’s interests, it may be less expensive and less burdensome to disclose the information even though a motion for a protective order might ultimately have been successful.
Before making the move for a protective order, turn to CEB’s California Civil Discovery Practice §15.84 for a procedural checklist, and chapter 15 for more on discovery motion practice and sanctions. Motions for protective orders is one of the many topics covered in CEB’s program Back to the Basics of Preparing and Opposing Pre-Trial Motions—A Course on Procedure, available On Demand.
Other CEBblog™ posts you may find useful:
- Shoot Back with 10 Discovery Objections
- Motion to Compel = Motion of Last Resort
- What Does It Mean to “Meet and Confer” on a Discovery Dispute?
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