It’s not feasible to stop a deposition every time an attorney or witness becomes obstructive, run to court to have a judge or discovery commissioner resolve the issue, and then resume the deposition. If you anticipate such problems, using a discovery referee may be a solution.
Discovery referees can be very useful to:
- Help the parties develop a voluntary exchange of discovery that avoids or limits the need for formal motions; and
- Resolve numerous, complicated discovery issues without having to file successive motions in court.
When using a discovery referee for depositions, you can have the referee either attend or be available by telephone throughout the deposition. If the problem is with an obstructive witness or attorney, the referee should probably be present; that very presence may inhibit such conduct. If you just want the referee to rule on issues that may arise from time to time during the deposition, it’s probably sufficient to have the referee available if needed by telephone.
How do you get a discovery referee on board? The parties may stipulate to the appointment of a discovery referee or may file a noticed motion, accompanied by a declaration from counsel explaining why a referee is needed. See CCP §§638-639. If the parties agree that a referee may be useful, they should try to agree on a specific person whose judgment they respect and are likely to accept.
Keep in mind that many judges won’t appoint a referee without the parties’ consent unless a very large number of discovery motions is expected, voluminous documents must be reviewed to determine an issue (e.g., the applicability of privilege), or specific expertise is required (e.g., familiarity with certain kinds of computer data or with an industry, as in construction defect litigation).
If the proposal to appoint a discovery referee comes from the trial judge, the parties must consent to the appointment for the referee’s factual findings to be binding. Otherwise, the trial court will need to adopt the referee’s findings after independent consideration. Lopez v Watchtower Bible & Tract Soc’y of New York, Inc. (2016) 246 CA4th 566, 588
Who pays for the referee? The referee’s fees are paid as agreed by the parties (see CCP §645.1(a)) or as ordered by the court (see CCP §645.1(b)). If the plaintiff is indigent and can’t contribute to paying the referee’s fees, the court may neither order plaintiffs’ counsel to pay the fees nor order the defendant to pay the entire fee.
Whether to use a discovery referee is just one of the many things you should consider up front as part of your discovery plan. Get guidance on how to create that plan in CEB’s California Civil Discovery Practice, chap 2. And before your next deposition, check out CEB’s program Preparing for and Taking a Deposition, available On Demand.
Other CEBblog™ posts you may find useful:
- Before Requesting Discovery, Have a Plan to Enforce It
- 4 Questions to Ask Before Moving for a Discovery Protective Order
- 5 Ways to Defeat Deposition Abuse
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