This CEB How-To Guide provides guidance in conducting discovery in a limited civil case. It can be used by either plaintiffs’ or defendants’ attorneys. We've also included links to the applicable Judicial Council forms.
Using these materials is not a substitute for the attorney’s independent judgment, drafting, and research.
In general, a limited civil case is a matter such as a typical tort, lien, or contract dispute in which the amount in controversy is less than $25,000. See CCP §§85-87. When planning your discovery in a limited case, you need to be judicious and adopt a conservative plan; if you aren’t careful, you will reach the limits on each discovery method very quickly.
Here are four major issues to keep in mind when creating your discovery plan:
Note► You follow the same notice and format requirements for each particular method of discovery as you would in other civil cases. For example, for interrogatories you use the procedures set out in CCP §§2030.010-2030.410. CCP §94.
The relatively small value of the case. The cost of a single deposition and propounding and preparing responses to 35 interrogatories, requests for production, and/or requests for admission (RFAs) may well be close to the budget that you and your client have set to prepare the case for trial.
Privileges and other protections. All of the privileges and protections (such as the attorney work product doctrine) that apply in normal civil matters apply equally to limited civil matters. CCP §90. Privileges and other protections generally are discussed in California Civil Discovery Practice, chap 3 (4th ed Cal CEB 2006).
The impact of electronic evidence. There are no special rules concerning the discovery of electronically stored information (ESI) in limited civil cases; the costs of responding to demands for ESI can easily become far greater than the value of the case. Discovery of ESI is discussed in California Civil Discovery Practice, chaps 4 & 8 (4th ed Cal CEB 2006).
Practice Tip► If you can craft clear, specific, and narrow demands for ESI, you may be able to avoid providing your opponent with a basis for seeking a limit to the demand.
If you are representing the plaintiff, you have the option of serving a case questionnaire along with the complaint. The questionnaire is designed to facilitate discovery of fundamental facts. See CCP §93. If you decide to use the case questionnaire process, you must use the Judicial Council Case Questionnaire—For Limited Civil Cases (Under $25,000) (Judicial Council Form DISC-010). Strategic considerations involved in deciding whether to use the case questionnaire are discussed here.
If you are representing the defendant and the plaintiff serves a case questionnaire, you must complete and serve the form along with your answer. CCP §93(b).
Note► The sequence of the remaining discovery steps will vary, depending on the facts of your case and the information you are seeking. Generally, you want to get all relevant documents before taking depositions, although this is not true in all cases. It is often best to send interrogatories to a party early on to obtain background information you need before demanding records or deposing the opposing party.
Use these discovery methods carefully; you may only use a combined total of 35 interrogatories, RFAs, and demands to produce documents or things. CCP §94(a). Remember that you don’t want to use all of your 35 requests too early, in case you need further information later.
For interrogatories, you may use the optional Judicial Council Form Interrogatories—Limited Civil Case (Economic Litigation) (Judicial Council Form DISC-004). These interrogatories count towards your limit of 35.
Practice Tip► Consider carefully which, if any, of the form interrogatories you want to use. Some of the information sought in the form interrogatories may not be particularly valuable in your case (e.g., plaintiff’s driver’s license number is not typically of much use to defendant in a slip-and-fall case). Also, note that there is substantial overlap between the form interrogatories and the case questionnaire (see Step 2).
Either party may serve a request for disclosure of witnesses who will be called, and documents, photographs, and other evidence that will be offered at trial. CCP §96(a). Make the request on the mandatory Judicial Council form, Request for Statement of Witnesses and Evidence—For Limited Civil Cases (Under $25,000) (Judicial Council Form DISC-015).
If you are serving the request, you must serve it between 30 and 45 days before the trial date, unless otherwise ordered. CCP §96(b).
If you are responding to the request, you must serve it within 20 days after you were served. CCP §96(c).
Warning► If you fail to respond, or do not respond fully, you run the risk that the court, on the request of opposing counsel, will exclude the witnesses and evidence you omitted in your response. CCP §97(a). Exceptions to §97(a) include (CCP §97(b)):
Testimony by a party in his or her individual capacity, called by himself or herself as a witness;
Testimony of an adverse party;
Witnesses and evidence used solely for impeachment;
Documents obtained by discovery under CCP §§94-95; and
When the court finds that the party made a good faith effort to comply, or that the failure to comply was the result of mistake, inadvertence, surprise, or excusable neglect under CCP §473.
If you want to obtain records or other documents from a third party, you may serve the custodian of the records with a deposition subpoena duces tecum under CCP §94(c), requiring the person to mail you copies of any
documents, books, or records; and
an affidavit complying with Evid C §1561.
There is no limit on the number of subpoenas you may serve under CCP §94(c).
Note► Although CCP §94(c) refers to a "subpoena duces tecum," the procedure it describes most closely resembles the procedure you follow by using Judicial Council Form SUBP-010 (Deposition Subpoena for Production of Business Records).
Mail a copy of the response to any other party who requests it and pays the reasonable copying cost. CCP §94(c).
Practice Tip► Although §94(e) refers only to the "identity" of expert witnesses, it also appears to permit parties to demand the exchange of the expert information that is available in unlimited civil matters (see CCP §2034.260). Generally, parties will agree to produce all information required under CCP §2034.260, including expert reports, but the statute is not clear on this issue, and courts vary on whether a party must provide just the identity of the expert or all the information required in an expert witness disclosure under CCP §2034.260.
Whether you have a right to a physical or mental examination is determined by whether a person’s physical or mental condition is "in controversy" (CCP §2032.020(a)), which usually—although certainly not always—happens because the plaintiff pleads a physical injury.
Physical and mental examinations generally are discussed in California Civil Discovery Practice, chap 10 (4th ed Cal CEB 2006).
You may take the deposition of anyone (e.g., parties, witnesses, people with knowledge of the case) that you could depose in an unlimited jurisdiction case—but you may take only one deposition "[a]s to each adverse party" (CCP §94).
Example► In a three-car accident case involving two plaintiffs (a driver and a passenger) and two defendants (two other drivers), each plaintiff could take two depositions (because each plaintiff is adverse to the two defendants and plaintiffs did not sue each other so they are not adverse), and each defendant could take three depositions (because each defendant is adverse to each plaintiff and the other defendant).
Practice Tip► Because of the limitation on depositions, it is not easy to obtain sworn testimony from witnesses. Consider obtaining affidavits or declarations from witnesses as early as possible in the case in order to "lock in" their testimony at trial. Affidavits and declarations are admissible at trial if the conditions set out in CCP §98 are met.
Depositions of organizations. A deposition of an organization must be treated as a single deposition even if more than one person is designated or must be produced to testify under CCP §2025.230. CCP §94(b). Thus, it appears that despite the one-deposition limit, an organization could be compelled to produce more than one witness in response to a "person most knowledgeable" notice. The court may limit the scope of such a notice, given the possibility that an organization may be put in the position of producing a host of witnesses in response to a notice that sets forth a substantial number of topics.
You may seek additional discovery under CCP §95 by stipulation or on noticed motion. If you move for additional discovery, you will have to show that you cannot prosecute (or defend) the case effectively without it. Be very specific about why you need the additional discovery and why the information isn’t available through informal discovery. The court must consider whether you used all applicable discovery in good faith and whether you first tried to obtain the additional discovery by stipulation or by methods other than formal discovery. CCP §95.
Judicial Council Form DISC-010
Judicial Council Form DISC-004
Judicial Council Form DISC-015
Judicial Council Form SUBP-010